Killing Capital Punishment

Beneficence… is less essential to the existence of society than justice…. [M]ercy to the guilty is cruelty to the innocent.
—Adam Smith

It is with a pious fraud as with a bad action; it begets a calamitous necessity of going on.
—Thomas Paine

The modern debate over the death penalty in America seems to be a contest less of minds than of wills. Normative arguments for the abolition of that penalty consistently fail to persuade a majority of Americans. This being a democracy, the penalty remains in effect-38 states and the federal government have capital punishment statutes. Yet, rather than admit defeat, the abolitionists fight on, determined somehow to lead the nation down the path they know is right. Now their method is to lie. They tell us that executions fail to deter murders, discriminate against blacks, ensnare the innocent, and cost the states more than life imprisonment.

In recent years, their words increasingly fall on gullible ears and win converts to their cause. And so a penalty unflinchingly imposed upon murderers since time immemorial today comes out at a trickle. In 2000, according to the FBI Uniform Crime Report, there were 15,517 homicides in the United States, but only 85 executions. Last year, there were 66 executions.

The death penalty continues to suffer numerous body blows. On April 15 of this year, a bipartisan commission for Illinois issued a 207-page report appraising the state’s death penalty system. Fearful of putting innocents to death, the commission recommends that the state end executions for virtually all homicides-felony murders, contract killings, drive-by shootings, the murders of children or the elderly, etc.-or else completely do away with the penalty. On May 9, Maryland Gov. Parris N. Glendening ordered a moratorium on that state’s death penalty due to suspicions of racial bias in sentencing. The federal death penalty law has since been ruled unconstitutional by two federal judges Jed S. Rakoff of New York, on July 1, and William K. Sessions III of Vermont, on Sept. 24.

In June, the U.S. Supreme Court did its part to slow executions. The Court held, in Atkins v. Virginia, that executing mentally retarded prisoners is unconstitutional. In Ring v. Arizona, it ruled that only juries hold the authority to find the “aggravating circumstances” necessary for a death sentence. The latter decision invalidated the death penalty laws of five states, where judges determined the critical “circumstances.” Experts predict that the Court’s ruling in Ring will lead to fewer death sentences in the relevant states, as juries are less likely than judges to impose them.

We are facing the death of the death penalty. As the opponents’ well-dressed falsehoods place retentionists on the defensive, it becomes necessary to defend capital punishment. The traditional argument for abolition is that the death penalty does not deter murder. This, of course, is preposterous; the penalty has always deterred murders and it always will. Although the deterrent effect is weakened by the roadblocks that abolitionists place before it, so long as the penalty exists, the effect can never be wiped out. No one who has been executed has ever killed again, whereas many “life prisoners” have been released to kill again. (Thank you, Mario Cuomo.) Not even “life imprisonment without the possibility of parole” means exactly what it says, since there are always the possibilities of clemency, furloughs, pardons, and even parole, whether dealt out by laws yet to come or by future court rulings. Furthermore, if there were no death penalty, there would be no sanction left to deter life prisoners from murdering prison guards.

The behavior of murderers, pursuant to capture, seems also to give the lie to the liberal conception of the fearless killer. They constantly appeal their death sentences, or avoid them when their cases seem weak, accepting life sentences via plea bargain rather than risking execution. Some may even avoid committing murder in the first place, though it is difficult to count them. Opponents disingenuously use this difficulty as “proof” that the death penalty cannot deter a murderer. If they applied this logic consistently, they would have to conclude that life sentences do not deter any more than 20-year sentences, nor 20-year more than 10-year sentences, since empirical evidence can never determine who was dissuaded by the prospect of longer jail terms.

Even so, the statistics bear out the retentionist position. According to the Bureau of Justice Statistics (BJS), as executions fell in the 1960’s, murders rose. There were twenty-one executions and 8,640 homicides in 1963, seven executions and 9,960 homicides in 1965, and two executions and 12,240 homicides in 1967. The homicide rate rose in these respective years, from 4.6 homicides per 100,000 population, to 5.1 and then 6.2, and continued to rise thereafter.

One reason why executions became so rare is that during this period the Supreme Court, under Chief Justice Earl

Warren, intervened increasingly in state law enforcement (see, e.g., Mapp v. Ohio, which imposed on every state the “exclusionary rule” that would invalidate innumerable searches and confessions in capital cases; cf. Gideon v. Wainwright, Escobedo v. Illinois, and Miranda v. Arizona). These rulings handcuffed the police and set killers free, hardly a trend in the service of deterrence.

At the same time, NAACP Legal Defense Fund lawyers swarmed the nation’s federal courts for stays of execution. The intention was to slow down executions until they became impracticable, or until fainthearted federal judges shrank from their duty to deny, en masse, the last-ditch claims of hundreds of killers. Unfortunately, it worked. From 1968 to 1976 there were no executions in the U.S., and from 1977 to 1979 only three. Correspondingly, the homicide rate more than doubled between 1963 and 1980. In fact, the homicide rate reached its all-time peak (10.2 homicides per 100,000 population, or 23,040 homicides) in 1980, a year in which there were no executions.

Executions thereafter resumed, but hardly in earnest. From 1980 to 1995, Americans were over 4.25 times more likely to be killed by lightning than by the justice system. To thisday, in no year since the Supreme Court lifted its moratorium on capital punishment in 1976 has the number of prisoners executed exceeded 98. (The National Weather Service estimates that the number of Americans killed yearly by lightning is 100.) For this reason, the homicide rate remained high throughout the 1980’s and for the first half of the 1990’s. And still, more executions have meant fewer murders, as will be seen.

Not until 1993, when 38 prisoners were put to death, did executions resume in earnest, and not until then did the homicide rate appreciably fall. That year the homicide rate was 9.5; the following year it was 9.0, and it continued to fall afterward. The death penalty seemed to be coming back with a screaming vengeance. In 1999, when 98 murderers were put to death, the homicide rate stood at 5.7, the lowest level since 1966. Evidently, then, murders do fall when the states that have the death penalty use it, sending a credible threat to prospective offenders. Now the correlation between executions and murders may not conclusively prove that executions deter murder, but it cannot be pretended that greater solicitude of the courts for criminals will scare more of them straight. That fantasy the 1960’s and 1970’s laid to rest.

The New York Times has reported that death penalty states have higher homicide rates than states that do not have the death penalty-ergo, no deterrence. But states may just execute their prisoners because they have high murder rates and want to effectively deal with them. Texas, for instance, leads the nation in executions, but it does not lead in murders it currently ranks fifteenth, down from second in 1991. The reason is that Texas does not merely have the death penalty, but also uses it.

As for the states that allow the death penalty but have not seen murders fall, they differ from states such as Texas in that they allow executions but scarcely use them. Here the threat of execution is present but less credible. For example, Maryland has executed three people since 1976. For this reason, Maryland will not likely reinstate the penalty. The assumption will be that the state does not have a compelling enough crime problem to execute more killers. Therefore, possible racial bias in sentencing, the rationale for the moratorium, would render the punishment untenably dangerous.

Here arises a much distorted issue. Opponents claim that the death penalty is biased against minorities, particularly blacks. The “evidence” is that blacks comprise 42 percent of death row inmates, and only 13 percent of the U.S. population. However, there is no reason to expect racial statistical parity; no trait nor tendency is evenly distributed along racial lines. (Think basketball.) There is a far more striking gender gap than race gap in executions, yet nobody complains that the system is biased against men. The same goes with age surely we expect more 20-year-olds than 60-year-olds to be put to death. So why is a race gap so shocking?

The assumption must be that if blacks constitute 13 percent of the U.S. population, they will commit 13 percent of murders. But according to BJS, 51 percent of murders are committed by blacks. Yet in 2000, 49 of the prisoners executed were white, including six Hispanic whites, and 35 were black. By that year’s end, whites on death row numbered 1,990 (including 339 Hispanics), blacks 1,535. Thus, both in absolute numbers and in proportion to murders committed, whites are more likely than blacks to be executed. Whites are also more swiftlv executed. From 1977 to 2000, the average elapsed time from sentence to execution was 116 months for whites and 128 months for blacks. In 2000 alone, it was 134 months for whites and 142 for blacks.

Another argument is that capital punishment is racist because murderers who select white victims are more likely to be executed than those who select black victims. One problem with this argument is the propensity among criminals to select victims of like race. BJS reports that 86 percent of white homicide victims are killed by whites, and 94 percent of black victims are killed by blacks. White killers, who select white victims, are more likely to get the death penalty than black killers, who select black victims. It defies justification to argue that this is racism-these are whites being executed for killing whites.

A second problem with the race-of-the-victim argument is that it completely overlooks the nature of capital crimes. In the common murder case, a death sentence is not imposed. An execution is generally imposed for a particularly vicious killing, such as a murder performed in the course of a separate felony (e.g., an armed robbery) or the killing of a police officer. Because there are racial disparities in such killings, the disparity in executions would exist without any bias in sentencing. And whites are more likely to be the victims in such cases.

In America in Black and White, Stephan Thernstrom and Abigail Thernstrom note that 85 percent of U.S. police officers who are killed are white. They add that “67 percent of all the black-on-white murders involved armed robberies, but just 7 percent of the black-on-black murders did.” And black victims are over represented in “hot-blooded murders,” committed in the heat of passion and punished less severely than premeditated “stranger murders.” “Almost three-quarters (73 percent) of the black-on-black killings occurred during a dispute or fight, for example, in the kitchen, the local bar, or the neighborhood,” the Thernstroms write. Where a death sentence is imposed, it is the characteristics of the crime and not the color of the victim that informs the sentence.

One of the most effective arguments against the death penalty has been the risk of executing innocent prisoners. The ACLU, for instance, claims on its website (www.aclu.org) that the national error rate in capital sentencing is 68 percent, with “102 death row inmates… found to be innocent and released from death row” in the last 30 years. The system is “broken,” it reasons. The ACLU’s reasoning is broken. There is not a single proven case of an innocent person being executed in the last 50-plus years. Think about it – if the error rate is so high, where are the headlines about evidence turning up to exonerate executed prisoners? And this despite the forceful scrutiny that death penalty foes allot every case, hoping to make this the issue that turns the nation against the penalty.

Proclaiming that the error rate in capital sentencing is anywhere near 68 percent is simply false. The figure was calculated by counting every reversal of a death sentence as a finding of “serious error” and then conflating “serious errors” with findings of innocence. However, most capital appeals do not even raise the issue of innocence. As a result, abolitionists cannot maintain that innocent people are being put to death or coming close to it. 68 percent of death sentences are reversed, for whatever reason. Such a procedural bias in favor of the accused ought to indicate that our system pulls out all the stops to be “fair,” without having to end capital punishment. Instead, to abolitionists, this “evidence” indicates that the system does not work.

In any event, virtually all of these 68 percent do not walk out of prison. Their death sentences are simply reversed, and even then, not finally. Why? Ultimately, most of these killers are still found guilty-93 percent of them, according to Peter Bronson, Editorial Page Editor of the Cincinnati Enquirer. (Most of the other 7 percent were not proven innocent either, but were let off due to procedural error, usually an error made by their own lawyers.) Some are even executed. The study fails to report the final status of the death sentence, leaving readers to conclude that once a sentence is reversed, it is permanently reversed. This is clearly not the case. And in many cases where both the guilt of the inmates and the fairness of their respective trials were undisputed, most notoriously in California, abolitionist appeals court judges nonetheless reversed the death sentences.

In some cases, genuinely innocent prisoners have been released from death row. Yet, thanks to the fairness and efficiency of our system, they were all still living, whereas, it bears repeating, not once in more than five decades has the innocence of a death row inmate been proven too late.

Thus, when an inmate’s death sentence is reversed but the prosecutor does not retry-perhaps because key witnesses have died, perhaps for other reasons-this is a finding of “innocence.” When a death sentence is reversed because of doubts over who shot the murder victim-while it is undisputed that the defendant took part in the murder-this is a finding of “innocence.” The abolitionists’ figures even include death row inmates in states such as North Carolina and Louisiana who were released back in 1976 because the Supreme Court invalidated those states’ death penalty laws, considering them too harsh. Innocence was not even an issue.

Then there exists the DNA argument. Opponents are fond of pretending that DNA evidence has proven many death row inmates innocent. Of course, by the same token, it can prove many more inmates guilty, and thus obviate the “need” to get rid of the death penalty. This is one reason why the ACLU and other abolitionist groups do not want DNA testing to become the norm. As the testing becomes common, fears about executing innocent prisoners will all but vanish, and opponents will be left to argue their true position on the death penalty that it is an unqualified wrong in every case.

There is a further problem with asserting that DNA testing categorically proves innocence. The testing is reliable in one sense far more than in its inverse. If the defendant’s DNA is found at the scene of the crime, then he is almost certainly guilty. If not, he may still be guilty. Blood or semen collected from a murder scene can easily belong to someone besides the murderer. So when such blood or semen does not match the defendant’s, it does not prove that he was never at the scene of the crime. But this aside, DNA is one type of evidence among many. In a given murder case, such evidence may not be central to the verdict; it may not even be relevant.

Where a DNA test exonerates the defendant, the judge’s theory is that the jury would not have voted to convict had the test been performed for the trial. That theory simply cannot stand. It casts aside all the other evidence, however persuasive or important. This would make sense if the test proved that the defendant was never at the crime scene, but the test does not prove this. And without a DNA test, the jury could only have learned the blood type from the samples. To argue that a jury would lean a conviction and a death sentence on such a slender reed is, at best, facetious. It is therefore entirely possible that many of those “proven innocent” by DNA testing were in fact guilty. The fact that they got out of jail does not prove them innocent.

Finally, we come to the argument of cost, that it is more expensive to execute a prisoner than to imprison him for life. Examine that statement in isolation, and it is obviously fiction. How much does a bullet cost? Yet, when one enters the entire procedural cost from the pretrial stage to the execution, it magically becomes true-in a deceitful sort of way. The reason why executions sometimes wind up costing more than life imprisonment is the tendency of defense attorneys to litigate them to death. Their appeals are what cost so much money.

Getting rid of the death penalty is not the way to solve this problem. Enacting legislation to speed up the appeals process or to limit the number and kinds of possible appeals would work much better. For example, when the Supreme Court agreed to hear argument in Atkins, it received several petitions from death row inmates claiming, for the first time after multiple habeas corpus petitions, that they are retarded and thus ineligible for the death penalty, should the Court rule as it did. All such petitioners should be immediately put to death.

The movement to abolish the death penalty in America is thick with duplicity. Convinced that deception in the defense of murderers is no vice, the abolitionists have resolved to slander the penalty until the people turn against it, or court-imposed burdens collapse it from above. Whereupon, if history is any guide, murders will rise. Had the homicide rate frozen at its level of 30 years ago, some 100,000 fewer people would be dead today. Thus, the death penalty’s opponents have blood on their hands.