Why I Oppose Capital Punishment In This Country At This Time

Several have asked what’s up with this from the last post:*

As ever, I remain opposed to the use of capital punishment in this country at this time, but not for what are almost certainly bogus “cruel and unusual punishment” reasons.

I’ll explain, but first I’d like to mention that I included that in the post almost as a disclaimer. The last time I posted about the death penalty, I said nothing of my own beliefs and just presented the news of the thing. Later on in the comments, after my opposition to the penalty had come up, one of the commenters had a little fit because I hadn’t been “up front” with my opposition.

I encourage you to scroll up and re-read the post, ignoring the last paragraph, and decide if my personal beliefs really made any difference in sharing the news that the Supreme Court stayed a Texas execution and that Alabama is getting creative with finding ways around “cruel and unusual punishment” objections.

In other words, I wasn’t trying to be “cute” with you guys; I was trying to avoid the comments of indignant readers who discover later that I am opposed to the death penalty under some circumstances and that I posted news about it anyway.

Regarding my opposition to capital punishment, I am against capital punishment in this country at this time because it’s unnecessary. I simply don’t see the point.

Before I go through this step by step, it’s important for me to note that it does nothing for me to simply say that capital punishment is “bad.” Capital punishment is bad when compared with its closest alternative, life imprisonment without the possibility of parole. (This point becomes important when I discuss situations when I am not opposed to capital punishment below.)

First, I don’t think that capital punishment provides greater social utility than life imprisonment without the possibility of parole. By “social utility” I mean things like crime prevention, rehabilitation, and deterrence. Obviously, in terms of recidivism, there is no difference between capital punishment and life imprisonment. It also has no rehabilitative effect; with either punishment rehabilitation is not desired. Finally, the policy of execution has either no deterrent effect or an indemonstrable effect.

On the point of deterrence, comparative studies consistently show that executing some criminals has had no effect at the same time that econometric studies have varied greatly in their conclusions with some showing deterrent effect–sometimes great big effect–and others not. In other words, we can have a duel of statisticians until we’re blue in the face. Deterrence is by no means a settled question and the econometric studies that were linked to by a commenter upthread haven’t been subjected to much methodological analysis. Econometric analysis isn’t a science; the results are not replicable.

I suppose another type of social utility would be nom de blog’s suggested avoidance of self-help. As I replied to him, I doubt that abolishing the death penalty would really result in a rash of self-help killings. We haven’t seen that type of things in the states that have no capital punishment. I cannot justify a punishment regime on the mere whisper of a possibility that self-help would occur, especially when there’s no indication that self-help would be widespread or especially disruptive to the system.

Second, the argument that capital punishment is the necessary expression of societal condemnation of certain crimes seems questionable in light of polls showing that 46 percent of Americans if given a choice between punishment regimes of capital punishment and punishment regimes of life imprisonment choose life imprisonment.

Third, in terms of expenditures of resources, it takes up more judicial and executive resources in its execution (no pun intended) than are freed up in its completion. Capital murder trials are around 10 times more expensive (11.4 in North Carolina) than murder cases in which the prosecutor instead seeks life imprisonment without the possibility of parole.

States often end up paying for both the prosecution and the defense of capital offenders (and of, of course, the cost of paying for the courthouse, the judge, the staff, etc.). They go on to pay for at least one appeal in capital cases in which they may also be paying for both sides (in the case of indigent capital offenders). The Texas criminal justice system estimated the cost of appealing capital murder at $2,316,655.

On the other hand, the projected cost of incarceration for 40 years (a generous average for lifers’ time imprisoned) is roughly $900 thousand per prisoner. The point is not just that executions are expensive, but rather that they are uneconomical when compared with the next best alternative, life imprisonment without the possibility of parole.

Finally, there is the argument that some criminals simply deserve to be killed. This idea relies at its most fundamental level on the principles of fairness and proportionality. Proponents of this theory of punishment are advocating execution because executing the offender is “fair” for the victims, the victims’ families, and all others affected by the capital offender’s crimes, including the offender’s families.

This one theory seems to support the use of capital punishment, but only because “fairness” is so subjective. It is this subjectivity that I cannot support. Society, in setting punishments, cannot and should not create a system in which severity of punishment depends solely or even substantially on the whims of legislators. (You expect legislators to somehow get it right on this when they so often mess up everything else?)

Furthermore, I’m not even sure I buy into the idea that some punishments are simply fit to certain crimes. Severity of punishment is entirely arbitrary. For example, disparities in drug sentencing reflect not the idea that fairness requires some specific punishment, but rather that punishment is rather easily divorced from crime. Purple Avenger was posting on this just yesterday when he noted that one fellow, a police officer, was facing a potential 10 year sentence for putting a contract out on another police officer while another fellow was facing 20 years for bouncing two checks. Fairness? I don’t think so.

From all this, you can get the sense that I think there is only one useful result of capital punishment in this country: a person is removed from society. But that can be achieved through life imprisonment.

Note, however, that these conclusions break down when capital punishment is compared with lesser punishments than life imprisonment without the possibility of parole. For example, if the situation exists where it is impossible to imprison someone for life, as in the colonial and pre-Civil War eras, it would be better to have a policy of execution. Hence, when I say I’m opposed to capital punishment I include the qualifier “at this time” because I recognize that the situation has changed.

Similarly, if the deterrent effect or other social utility of executions were increased, capital punishment may be justified on utilitarian grounds. But that situation does not exist in the contemporary United States. For the average capital offender, very little social utility is gained by his execution. This conclusion very obviously breaks down when you consider capital offenders other than the average like genocidal tyrants (Adolf Hitler, Saddam Hussein) or international terror leaders (Osama bin Laden). Their executions would have immediate and demonstrable social utility.

As far as the argument that the death penalty should be opposed because it may kill a mistakenly-convicted innocent, I do not think that is very compelling. Essentially, the argument is that there’s no problem with the death penalty if it worked perfectly. Restated, if I could prove to you with 100% certainty that a person was guilty of a capital crime then you’d be okay with executing him. Obviously, I disagree with that.

In short, we have the capability to live in a society without capital punishment. Financial considerations alone lead to the conclusion that we should lose the death penalty. Just because some folks think that revenge is enough of a reason to kill someone does not make it so.

*I originally wrote this in the comments at Ace’s, but thought it was too good not to make it a post of its own.

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~ by Gabriel Malor on September 29, 2007.