Debating the death penalty

With the left (and some conservatives) now intently focused on vastly reducing the prison population and curbing the police, the attention of the “civil rights” movement has shifted away from the death penalty. African-Americans encounter the police and our prisons every day; executions are rare.

But more thoughtful, less agenda-driven observers remain focused on the death penalty. George Will argued against it last week. The Washington Post’s editors do so today.

I find it difficult to debate the death penalty. For me, the issue comes down to whether one’s sensibilities (ethical or aesthetic, take your pick) are more offended by the state taking a life or by a cold-blooded murderer (let’s say Dzhokhar Tsarnaev, to take an extreme case) not having his life taken. These days, the latter scenario bothers me more, but I can’t refute those who are more bothered by the former.

There are, to be sure, empirical issues that can be debated. They include the extent to which today’s sparing use of the death penalty deters murderers and the degree of the risk that the sparingly applied death penalty will take the life of anyone later determined to be innocent. I don’t find these issues dispositive, but others might well.

Bill Otis has no difficulty debating the death penalty; in my estimation, he does it brilliantly. His response to George Will is an excellent example. Here is most of Bill’s argument:

Will, often and astutely a fan of history, tells us that, by imposing the death penalty, democratic government is asserting “majesty” and “infallibility.” It is asserting neither.

George Washington — known for, among many other things, turning down majesty — not only supported but used capital punishment, as did Lincoln and FDR. It remains on the books today, as it has for all but four years of our distinctly non-regal history, not because Americans think the government is majestic, but because the people themselves overwhelmingly support it. According to Gallup, 60% or more of the public has supported the death penalty for 40 straight years.

And no one takes the government to be infallible. No one thought it infallible (merely plainly in the right) when the government declared wars, including WWII, that killed exponentially more people, and exponentially more innocent people, than the death penalty ever has. We fought, knowing in advance that thousands would die — many of them adventitiously or from sheer stupidity or mistake — because the nation judged it worth the candle.

That is the test Will misses. The question is not whether X government program is infallible. The question is whether, knowing that it (and all other fallibility) cannot be escaped, the risk of error is so small and the reward to justice so large (as with Tsarnaev and McVeigh) that the benefits are worth the risks.

Much of this answers Will’s next objection — that if we execute an innocent man, the error is irretrievable. That is true, of course, but if (for example) we continue to travel by train, innocent people are certain to die, as they did two weeks ago, and just as irretrievably.

No one suggests, however, that we give up train travel, although it unlike justice is merely a convenience. What they suggest is that we do what we can to make it safer. They propose this although the improvements are likely to cost a lot of money and still won’t make it infallibly safe.. . .

[I]n public policy, everything is a matter of balance — balancing costs, benefits, and trade-off’s. Surprisingly, Will seems to miss this entirely, and thus seems to take the possibility of executing an innocent person as an absolute barrier to capital punishment, rather than merely an extremely serious cost.

Finally, Will points to not a single execution of an innocent person in the last fifty years. That’s because, so far as any neutral authority had been able to determine with any degree of assurance, there has been none. That does not make the risk of executing an innocent disappear, but it does make it vanishingly small.

The deterrent value of the death penalty is much debated; the majority of (but not all) studies say that it does have deterrent value, although (as Will correctly points out) not as much as it would if imposed more frequently.

But to say that it would have more deterrent value if imposed more often is an odd argument that it should not be imposed at all. It also simply walks past the two more frequently cited reasons in its favor: That, for some especially grotesque murders, it’s the only punishment that fits the crime; and that it’s the only certain means of incapacitating the killer.

Will does not discuss, for example, what we are to do with a psychopath who kills once, is given a life term in prison, then kills a guard in an escape attempt (or a prisoner from a rival gang, or some weaker inmate who refuses sexual favors). Just as there is no infallible judicial process, there is no infallible prison security. What is the just punishment in such a case? Loss of canteen privileges?

In my opinion, the death penalty is the just punishment in these and certain other cases.