Death Penalty Losing Support

3 March 2005

By Stentor Danielson

The death penalty is being squeezed. On Tuesday the Supreme Court issued a 5-4 decision striking down the death penalty for minors. Nineteen states, mostly in the south and mountain regions, had laws permitting 17-year-olds, and in some cases 16-year-olds, to be sentenced to death. This ruling comes less than two years after the court declared that the mentally retarded also could not be executed.

The decision is sure to set off another round of debate about the legality and morality of the death penalty in general. At the moment, capital punishment seems secure. A substantial majority of Americans support executing mentally competent adults, so a legislative solution is unlikely in the near future. This also deprives the Supreme Court of evidence of an "evolving national consensus" of the type they cited in the juvenile and retarded cases to back up their interpretation of the Eighth Amendment's vague ban on "cruel and unusual punishment." In the longer run, public opinion may -- and hopefully will -- change. So it's worth looking at the arguments that have been mustered against the death penalty. A number of the more popular ones are rather weak, but a strong case can still be made that capital punishment has no place in our society.

Perhaps the most common argument against the death penalty is that it is unequally applied. Between outright bias and lack of resources to get competent legal representation, poor and racial minority convicts are far more likely than rich whites to be sentenced to death. It's clearly a tragedy that sentences would be applied in this discriminatory way. But it does not clearly weigh against the death penalty. If it's the sentencing system that's broken, it's the sentencing system that must be fixed. To point to elimination of capital punishment as the solution is to throw up one's hands about the possibility of improving discrimination in the legal system. It also misses the opportunity to use outrage at disparities in death sentences as a lever to get reform of discrimination in all aspects of the criminal law system -- it's hard to believe that capital cases are the only ones where poor and minority defendants are at a disadvantage. While a moratorium on executions while the system is fixed, such as the one declared by former Illinois Governor George Ryan, may be in order, sentencing disparities do not justify a full permanent ban on the death penalty.

The "global consensus" argument is also weak. The Supreme Court relied in part on this argument in the juvenile case, citing the near universal ban on executing minors around the world. Death penalty opponents point to the fact that many other countries have rejected all capital punishment, and the ones that do use it are typically unsavory totalitarian regimes. By itself, global consensus is a bit of circular logic -- each country should ban the death penalty because every other country does, and its ban becomes the rationale for the other countries' bans.

The global consensus argument is also empirically weak. While it's true that many governments have banned capital punishment, worldwide public opinion is decidedly more favorable -- including majorities in many European nations that are often cited as exemplars of a humane justice system. The democratic impulse of the global consensus argument seems unsatisfied if it must ignore the opinions of people in favor of the opinions of governments.

To make a solid case, the central argument about the death penalty has to be an argument about the purposes of punishment. Punishment should seek restitution, deterrence, and rehabilitation, in roughly that order. The death penalty is restricted to crimes for which restitution is not physically possible -- no form of punishment will bring back a murder victim. Rehabilitation is also not possible through the death penalty, since the criminal is wiped off the Earth. That leaves deterrence.

It may seem at first blush that the death penalty is a good deterrent, since a harsher punishment would weigh more heavily in a potential criminal's cost-benefit calculus. But criminals are not rational utility maximizers. They don't expect to be caught, so they don't fear death. Studies comparing crime rates before and after changes in capital punishment laws, and between states with different laws, have consistently found no difference. The death penalty does not deter criminals any more than the other penalties at our disposal.

What's left, then, as a philosophical basis for executions? Revenge. When we've been hurt, we have a natural desire to hit back. We have perhaps evolved this desire because hitting back often does serve a deterrent function. But it's not the role of the law to cater to our base instincts -- rather, the law exists to protect us from crime. What's more, the search for revenge is psychologically futile. Victims' families -- including some among the most bloodthirsty before the execution -- typically report no sense of resolution or satisfaction when they see the killer put to death.

Further, the costs of punishment must be weighed against their benefits to society. Government is obligated to give society as a whole a good return on its tax dollars. Yet the death penalty is hardly cost-effective. It's more expensive to execute someone than to imprison them for life. Death row inmates spend much of their lives in prison, while the government spends large sums of money on the various appeals and other safeguards aimed at ensuring that the ultimate punishment is not applied mistakenly. Reducing those safeguards is not an acceptable option -- indeed, the concerns about sentencing inequalities demand that they be stepped up. So the death penalty is the $20,000 toilet of the judicial system.

The death penalty is tough on criminals, but not tough on crime. We must be careful not to let a desire for revenge cloud that distinction.

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