Published 01.29.08 at Townhall.com
Published 02.12.08 at Crosswalk.com
Several developments over the last three months seem to indicate that our society is at a moment of decision regarding capital punishment, which behooves us to think seriously about this issue and clarify the very muddy waters people have made of it. As I explained in my previous column, there are five basic purposes to a justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. Between the two alternative murder penalties of execution and life in prison without the possibility of parole (LIPWPP), we saw that incapacitation and rehabilitation are essentially moot issues. Retribution, however, strongly favors capital punishment. Let’s continue our analysis.
Deterrence
Deterrence is the goal of giving people who might otherwise be willing to commit a crime a strong enough disincentive to prevent them making this choice.
This is the most complex part of the discussion and the part most misunderstood by nearly every commentator on both sides.
Given the frequency with which they contradict each other, studies have proven useless in answering definitively whether capital punishment deters. In the presence of such unclarity, it’s left to reason to decide, and reason rather counter-intuitively indicates that capital punishment does not deter. Despite wholeheartedly supporting capital punishment myself, I think that emphasizing deterrence is the signature error most of my intellectual allies make when discussing the issue.
Capital punishment does not deter because the capital offender is not the right sort of person.
There are three kinds of people in any society: the good, the barbaric, and the rational. Good people are self-governing enough that they either do not want to commit crimes or else restrain themselves morally from committing them. Clearly, capital punishment does not deter such people because decency or morality gets there first. Barbaric people are so much like animals that they are incapable of stopping themselves from doing the wicked things they want to do. Such people cannot be deterred because they lack the combination of prudence and self-control which deterrence presupposes. Instead, they must be stopped with the use of force. Rational people are those who want to do illegal things but are self-interested enough that they can perform calculations about risk and reward and decide to avoid committing a crime when its legal penalty outweighs its potential benefits. Thus, deterrence is only an issue with respect to rational people.
The problem is that murderers are not rational in this way.
For one thing, they are more likely to be barbaric than to be rational. Furthermore, at the time of a murder, even people who might otherwise be rational or good usually have become momentarily barbaric. This means that they are not performing the sort of calculus or exercising the sort of self-control necessary for deterrence to stop them. But even if they were, I’m hard pressed to take seriously the claim that capital punishment would deter them whereas LIPWPP would not. If they are indeed rational at the moment, surely LIPWPP represents a massive enough disincentive to deter someone from murder. It’s hard to imagine a potential murderer saying to himself, “I’m willing to kill this person because the worst it could cost me is LIPWPP. If only my state had the death penalty, I surely wouldn’t do this thing.”
Even if you can imagine such an internal dialogue in the mind of a potential capital offender, the marginal deterrent difference between execution and LIPWPP would be further weakened by several factors. Murderers always assume they will not be caught. In the event they imagine being captured, they think that they will be able to escape punishment by some legal technicality or a skillful defense. If convicted, they anticipate acquittal or reduction upon appeal. Even so, they know they will likely be alive for several decades while this process unfolds. And in the end, there’s always the hope of clemency or escape. All of these considerations significantly mitigate whatever deterrent power execution has, but there is a much more significant problem.
Criminals don’t know the law that well.
Other than in New Jersey and Texas, I doubt the average criminal actually knows what the current state of the law regarding capital crimes is. And if he does, he surely might imagine that it could change between now and his own unlikely trial or be nullified by some layer of the judiciary including the Supreme Court. All of these factors create such an ambiguity in the mind of even that rare highly-informed criminal who retains enough rationality just prior to the commission the crime for it to matter that the difference in deterrent effect between execution and LIPWPP is effectively diluted to zero.
But here’s a thought experiment for you. Imagine that Mr. H. wants to kill his wife and lives near the border of a state which executes and whose neighbor state does not. Other than in the movies, can you really imagine the long process he would have to go through that would result in him saying, “Well, I guess I’ll drive her over next door before I kill her so that, just in case I’m caught, prosecuted, and lose my appeals over 25 years, at least I’ll get to live out the remaining 15 years of my life rather than die by lethal injection?” Such fantasy is beyond even my nimble imagination.
Dennis Prager once said in a column on this topic that a state which made murders committed on certain days of the week punishable by death but by LIPWPP on the others would surely find a shift from the former to the latter for homicides. Though his hypothetical may be correct for a small subset of criminals, I would instead say that waiting a day to kill is very different from transporting a victim across state lines or selecting residents of another state for victims based on such calculations. Weird hypotheticals produce unreliable conclusions. I know Dennis, and I think his error stems from thinking criminals are even remotely as rational as he. They are not.
Understanding all of this, it should now be clear that capital punishment does not deter. But what if it did?
You may disagree with every point in my prior analysis, and I’m sure many of you will relish doing so. But for the sake of argument, allow me to grant that threatening people with execution for murder might actually deter. Would that justify using it? I say not, and I’ll explain why in my next column on this topic.
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2 comments:
Mr. Tallman disregards the studies on deterrence, by stating that because studies reach different conclusions, we should disregard them.
There is not the balance he presumes.
Studies finding for deterrence state such, studies not finding for deterrence don't say that no one is deterrered, but that their study didn't measure any of those deterred, if they were.
Studies finding for deterrence means that having the death penalty and/or executing murderers spares more innocent people, by preventing some potential murderers from murdering.
Studies not finding for deterrence, don't say that no one was deterred, but that their study couldn't find for deterrence, if it exists.
The choice becomes saving innocent life or, possibly not saving innocent life.
The choice is simple. The weight, if unsure, must go to saving innocent life.
Again, not a close call.
Furthermore, since 2001, there are 16 US studies, inclusive of there defenses, finding for death penalty deterrence.
Mr. Tallman states that because murderers aren't rational actors, that they won't be deterred.
Reality conflicts with Tallman.
Some murderers are quite rational, but even many irrational people care about saving their own skin.
Tallman is wrong on his belief that criminals don't think they will be caught. Virtually all criminals realize the real prospects of being caught, that is the only reason they attempt to be undetected in their crimes. Why do virtually all criminals show a fear of apprehension? Because they fear sanction. There is no other reason.
Do criminals fear the death penalty more than life without parole?
What percentage of capital murderers seek a plea bargain to a death sentence?
Zero or close to it. They prefer long term imprisonment.
What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial?
Zero or close to it. They prefer long term imprisonment.
What percentage of death row inmates waive their appeals and speed up the execution process?
Nearly zero. They prefer long term imprisonment.
This is not, even remotely, in dispute.
Life is preferred over death. Death is feared more than life.
If nearly 100% of death penalty eligible murderers tell us they prefer life imprionment over the death penalty, it is hardly a stretch to claim that potential murderers, whom Tallman and most of us would conclude are more rational, would also see the death penalty as a greater deterrent than a life sentence.
Weight in favor of the death penalty as an enhanced deterrent over a life sentence.
Mr. Tallman writes:
"But here’s a thought experiment for you. Imagine that Mr. H. wants to kill his wife and lives near the border of a state which executes and whose neighbor state does not. Other than in the movies, can you really imagine the long process he would have to go through that would result in him saying, “Well, I guess I’ll drive her over next door before I kill her so that, just in case I’m caught, prosecuted, and lose my appeals over 25 years, at least I’ll get to live out the remaining 15 years of my life rather than die by lethal injection?” Such fantasy is beyond even my nimble imagination."
It is not all surprising that someone would move to another location if they saw less harm in it. It happens all the time.
In fact, there are quite a few specific cases of border crossings to commit crimes, in order to avoid the possibility of the death penalty.
One below.
One Iowa prisoner, who escaped from a transportation van, with a number of other prisoners, stated that he made sure that the overpowered guards were not harmed, because of his fear of the death penalty in Texas. The prisoners were being transported through Texas, on their way to New Mexico, when the escape occurred. Most compelling is that he was a twice convicted murderer from a non death penalty state, Iowa. In addition, he was under the false impression that Texas had the death penalty for rape and, as a result, also protected the woman guard from assault. (12)
New York Law School Professor Robert Blecker recorded his interview with a convicted murderer. The murderer robbed and killed drug dealers in Washington DC., where he was conscious that there was no death penalty. He specifically did not murder a drug dealer in Virginia because, and only because, he envisioned himself strapped in the electric chair, which he had personally seen many times while imprisoned in Virginia. (13)
Senator Dianne Feinstein explained, ''I remember well in the 1960s when I was sentencing a woman convicted of robbery in the first degree and I remember looking at her commitment sheet and I saw that she carried a weapon that was unloaded into a grocery store robbery. I asked her the question: ‘Why was your gun unloaded?’ She said to me: ‘So I would not panic, kill somebody, and get the death penalty.’ That was firsthand testimony directly to me that the death penalty in place in California in the sixties was in fact a deterrent.''(13A)
Logic requires that the individual deterrent effect cannot exist without the general deterrent effect. Therefore, reason dictates that the general deterrent effect must exist. The question is not: "Does deterrence exist?" It does. The issue is: "What is the quantifiable impact of deterrence?"
Individual cases support the individual deterrent effect and such cases insure that general deterrence must exist. And, for both, the evidence also suggests that executions provide enhanced deterrence over incarceration.
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