Remarks on the Death Penalty

Ted Everett

debate presentation 4/18/06

Capital punishment is not in very good institutional shape these days. Many countries, including the whole Europe Union, have come in recent years to prohibit the death penalty; indeed, no country may be admitted to the EU that retains this form of punishment. Americans still support the death penalty, by a margin of something like 2 to 1, but this is lower than it has been in the past, and there is reason to believe that such support will continue to shrink unless something changes – because elite opinion, our opinion, is swiftly getting to the point where capital punishment is simply presupposed to be barbaric on its face – something that is not for decent people to defend.

I want to address very quickly some of the standard objections, then say something about the nature of punishment in general (which I think is not well understood), and then defend the death penalty itself as an alternative to lengthy prison terms, including life without parole. I will defend the death penalty mainly as a matter of moral principle, not as actually practiced.

Standard objections.

It has been argued that capital punishment is not a deterrent to murder, sometimes on the basis of statistical studies. I think that it is pretty obvious regardless of these studies that the death penalty at least prevents (or would prevent) some murders – more than zero. First, it would prevent all further murders by the people who are executed. We know that there are many hundreds of people in prison right now on their second conviction for murder, and hundreds of their victims dead who would have lived if we had executed their already-convicted murderers. Ideally, a perfect system of escape-proof life imprisonment absolutely without parole would have saved most of these people, too, but that is asking for more perfection than we have any right to expect. The other obvious cases are prison murders, including murders of guards, which are often committed by criminals already serving life sentences, who have essentially nothing else to lose in the absence of capital punishment. One such case made headlines a couple of years ago, when the famous Boston alter-boy molester Father Geoghan was brutally beaten to death by a life-sentenced murderer in jail. Good riddance, perhaps – but plainly a preventable homicide.

I agree with death penalty opponents that most spousal murders and other crimes of passion (once the great majority of homicides) are probably undeterrable, but most murders are not like that anymore. Some degree of deterrence is entirely plausible for other types of murder, including felony murders, which are those committed in the course of another major crime, like robbery or rape. Here the killer often makes a calculated, rational choice to kill the victim to prevent the victim from identifying him. To the extent that robbers and rapists prefer prison to death (some are already used to prison), the death penalty would surely have to count for something in such calculations, at least some of the time.

It is sometimes argued that the death penalty sends the wrong message about killing – that by killing under any circumstances, we show some level of indifference to life. But this proposition can be, and often is, turned around: by refusing to apply the final penalty for murder, we are showing indifference to murder, and to the lives of victims.

Some opponents speak ironically of killing killers, as if the moral possibility of this is just absurd. But is there a genuine contradiction in killing killers? What should we do with kidnappers, for example, under anybody's theory? We should arrest them and imprison them, in other words, kidnap the kidnapper. What should we do with people who steal money from the IRS? We should fine them, that is, steal their money. We don't rape rapists (that seems to be left to their fellow prisoners), but we harm them in other ways, as we harm everyone we punish, or it wouldn't be punishment. If there is irony in executing killers, there is the irony in any ordinary form of punishment for crime, which is always in some way to harm the harmers. Two wrongs don't make a right. But the point is that similar actions are not always equally wrong or right, when they're done in different circumstances, or for different reasons, as between someone's taking money, and someone's taking money back.

It is argued that the death penalty is irreversible, which makes it possible for someone innocent to be punished with no means of recompense. We do know that there have been some close calls, though there are no established cases of false execution in the past few decades. DNA testing has freed one man from death row, which entails that there has been at least a genuine possibility of executing the wrong person. This possibility has been lessened, of course, precisely because we now have DNA tests. There have also been many reversals of death sentences on appeal, which are treated as exonerations by some death penalty opponents. But it has not yet been established how many (if any) such convicts have been actually proven innocent, as distinct from being let go or retried on the basis of faults in the prosecution or defense, or other, often merely technical, problems. In any case, it has also always been true that some people accused of murder die while awaiting trial, or during trial, or while their case is on appeal, or while serving their sentence – some of whom are surely innocent, and now irreversibly deprived of means to show it. Given the relative scarcity of death penalty cases, and the much higher standards of proof and procedure they require, it is almost a certainty that many more innocent murder convicts have died while in ordinary prison than by execution. There are more ways than one to take away somebody's life.

As a final consideration on the immorality of taking a small risk of killing someone who is actually innocent of murder, note that almost all of us drive cars. And we all know that every time we drive, we are running a non-zero risk of slamming into another car, or killing some little kid who runs out into traffic – perhaps while we are driving angry or tired, or flipping through our CDs, or trying to jam a 20-ounce Coke into an ordinary cup-holder. Traffic victims are all innocent, and have not been given any kind of due process, and we kill 42 thousand of them every year, and it's almost entirely avoidable.

The unfairness argument against capital punishment is an important one, or an important set of arguments, which have come to the forefront of the opposition case in recent years. It is quite clear that the death penalty has disparate impact on a wide array of groups. Men are more likely to be executed for murder than women. Obviously, poor people can't afford the kind of representation provided by OJ Simpson's "dream team", which made mincemeat of a group of generally competent state prosecutors. People who are somewhat retarded or mentally ill are plainly at a disadvantage, too. And, of course, people who live in states with capital punishment, like Texas and Florida, will sometimes die, while equally bad murderers in Michigan and Massachusetts get to live. The question of racial unfairness is particularly interesting tonight, but I will put off discussing it for now, other than to note that there are many statistics in play, including the fact that overall, white people convicted of murder are about half again as likely to be sentenced to death, and about three times as likely to be actually executed as black murderers are. As a general fact, in any case, it is plain that in a number of dimensions, the death penalty is unevenly applied. A proponent of the death penalty as it is currently applied would have would have to argue that the equity issue doesn't matter very much. There are always people getting away with things to one extent or another; unless we build a new, perfect society we'll have to live with some inequities. This doesn't mean that systematic inequities should be tolerated. On the other hand, there are other ways to fix inequities than to destroy their contexts altogether. For example, we responded to inequities in education back in the Sixties not by closing the existing schools and universities, but by integrating them, and we continue to practice such things as affirmative action, largely as a matter of promoting or maintaining equity. It can be argued by analogy that the many inequities in criminal punishment ought to be similarly rectified within the present structure of criminal law, including inequitable applications of the death penalty.

Finally, a central background assumption for equity arguments, as well as general opposition to the death penalty, I think, is the general view, apparently supported better and better by science as the years go by, that human individuals have only limited resources of free choice. If someone is a murderer, there is bound to be an explanation of this fact in terms of some combination of genetics and environment, both of which are ultimately out of the murderer's control. This is especially so for poor, uneducated people, and particularly the fast-growing number of fatherless young men in cities, who seem to have been be born with two strikes against them. But ultimately, none of us, including Michael Skakel of the Kennedy family, gets to choose his own essential character, whether we have the capacity for murder in us or not. Hence the murderer, too, is a kind of victim, worthy of the most compassionate treatment available, consistently with public safety. If putting someone away for life would work as well, or almost as well, then there is no good reason for us to kill, or even hate, the poor, sick bastards who respond to life with such brutality. This is, I think, a very powerful argument, one that I have always found persuasive. My response to it now is not to try to contradict it, but to argue that that it is broadly irrelevant to questions of criminal justice, and that it damages our ordinary lives to let it influence our actions very much.

A positive defense.

Positive theories of capital punishment usually focus on two moral explanations, deterrence and retribution. Deterrence as a concept is well enough understood; the issue is only whether the death penalty actually provides any deterrence. But the concept of retribution is not. The cartoon version, given mainly by opponents like the ACLU, is that retribution is the same thing as revenge. This calls to mind the angry families of the murder victims, plus many other hate-filled people with no personal stake in the matter, calling for the heads of the poor sick bastards who commit the murders. An eye for an eye will perhaps provide some satisfaction, or at least "closure", to the families, and will satisfy the ignorant masses that some kind of crude, bloodthirsty "justice" has been done. Too bad we couldn't do to him the awful things that he did to his victim, but maybe God will work that out for him in hell. This, as I say, is the cartoon version of retributive justice.

The non-cartoon versions stress the ordinary moral necessity of making punishments fit crimes. Most death penalty proponents are not ignorant or superstitious or full of rage, but still support the this penalty for some murders – the morally worst ones – as a form of proportionate retribution. Almost everybody thinks that a greater crime deserves a greater penalty in general. Almost nobody would go so far as to say that a torturer ought to be tortured to death. We almost all agree that the proportionate punishment for commission of the worst kind of murderer is to take the killer's life away. What remains in the central debate is only the means by which we take the killer's life away, through execution or through a lifetime of helpless, miserable, inescapable imprisonment. We ought to consider our own future medical decisions before we call the one choice barbaric and the other civilized.

I think that the most sensible way of justifying capital punishment (for that matter, any punishment) does not depend essentially on either simple deterrence or simple retribution, but requires a third concept that can be seen as falling in-between. I will call it forfeiture. The main idea expands on the once-common notion of a criminal "paying his debt to society". What does this phrase mean? How are such debts incurred? Why should people have to pay such debts? I think that our debts to society are genuine debts, and that they spring from genuine, though often inexplicit, voluntary pledges, and that people have to pay them in order that we may have been trusted beforehand by our fellow citizens. Perhaps this sounds absurd, so let me illustrate the logic of my view.

A basic example is the mortgage on a house. I want a house, but don't have nearly enough money to buy one. So I ask my banker for a hundred thousand dollars. My banker's a nice guy, but he doesn't know me all that well, so he can't just trust me in exchange for nothing. If he did that sort of thing he'd probably go out of business pretty fast (not because of me and other honest people, but just a few cheaters could bankrupt him). He needs proportionate collateral in order for it to be rational for him to hand out that much money. So the deal is, if I make the payments, everything is fine, but if I don't make my payments for a certain length of time, he gets the house. I happily sign this contract, and the banker and I thank each other, because we are both going to benefit. Now, a couple of years later, I lose my job (perhaps because I say something awful at a public debate), and my wife leaves me. I get another job at Wegman's but it won't come close to covering my mortgage, so, after a few months of begging from my friends and going through various procedures I lose the house. Either I sell it myself and give the money back to the bank, or, if I refuse, the bank just takes the house and kicks me out. Now, it's not compassionate to kick a guy out of his house, especially a nice, middle aged guy who has just lost his wife and his job and most of his friends. And it isn't fair, either. If anybody needs a place to live, it's me, besides which lots of people say dumb things and don't get fired, and anyway, some people inherit their houses, so they don't have to pay mortgages, and some people are rich enough to buy their houses with cash. So how is it justice for the bank to take my house? Well, to answer this, we have to look beyond compassion and fairness. I made a deal with the bank, and I didn't keep my side of the bargain, so, as agreed in advance, I forfeit the house. But can't my banker take pity on me, and let me stay another year, until I get my feet back under me? Yes, he might make a special exception for me, but it would have to be an exception; bankers couldn't do this sort of thing routinely. Why not? Because if they aren't going to demand the forfeit, at least most of the time, then they will not be able to trust people in the first place with their money – nor will the bank's depositors be able to trust the bank with theirs.

That's what forfeiture is like in civil cases. What about criminal cases? Consider driving cars again. We get a license, having proven that we know at least most of the rules, and something of the corresponding penalties. This is close to an explicit contract. We agree in advance to suffer certain penalties in certain circumstances if we should break these rules. And in exchange for what, exactly? What do we gain from promising to pay such penalties? Well, quite a lot. Even at the age of 16, we are permitted – trusted – to go whipping around town and country, unsupervised, in two tons of very dangerous machinery. There are no regulators on our throttles; most cars will go a hundred miles an hour, which is never legal. But we are trusted, for the most part, not to do it. If we do, we have agreed implicitly to pay the fine. We owe the money, as a debt to the state and to our fellow citizens. If we should break the traffic laws repeatedly, we may well forfeit not just money, but our licenses, and potentially our freedom if we choose to drive without them. And all of this is commonly held to be justice, even though it falls in practice unequally on people with unequal resources, and certainly on the young, and on men, and on people who drive Camaros, and probably on some minority ethnic groups as well.

The criminal law is like the civil law in general, I think, as an exchange of trust for something like collateral. We are generally trusted with all sorts of means to harm our fellow citizens or to cause other forms of mischief: cars, trucks, guns, knives, alcohol, karate lessons, poisons, Rottweilers, propane tanks, duct tape, swimming pools, gangster rap, storage units, the Communist Manifesto, and Viagra. Unlike a lot of people in the world, we are not state-supervised in daily life. Police may not even enter our homes without a warrant. So it is very, very, easy for us to rob and rape and kill our fellows if we have a mind to. But we are trusted not to, in exchange for an agreed-upon complex of penalties if we should break the law and get caught. If we didn't have the penalties in place, in advance of any crime, we couldn't be so well-trusted in the first place. And most of us deserve to be trusted in any case, so we don't fear these penalties.

Like most adults, I thrive on trust. It's an essential feature of my self-respect that I can be trusted, with money and with confidential information and with people's teen-aged daughters in my basement office, and with piles of unmonitored work. Most of the time, nobody even knows where I am (or wants to know), despite the fact that I am being paid to do a full time job. And I would gladly agree to much harsher conditional penalties in exchange for even more trust and less supervision. Would I be willing to pledge 20 years of my life in prison (should I commit armed robbery) as collateral in exchange for being trusted to own a gun? Of course I would; I'm not going to rob anybody. Would I be willing to pledge life imprisonment without parole against the prospect of my committing murder in the first degree? I would, again, because I'm not going to do that. Would I be willing to pledge my very life, in exchange for being trusted not to murder people in the cold-blooded ways that make a crime "death-eligible" now? The answer, again, is yes – of course I would. I would be perfectly happy to offer my life as collateral against any first-degree murder (and, for that matter, forcible rape) in exchange for nothing at all, simply as a point of self-respect.

But what if there is a possibility of error, so that I might be falsely convicted and executed – would I still take the pledge? I think it would depend on the actual probability of error. Nothing is perfect, but I know that the probability (as a white man of my age) that I'll be murdered is about 1 out of 500. A hundredth of that probability would be 1 in 50,000. I think I'd be happy to take a hundredth of that probability, or 1 in 5,000,000, which would add up to my accepting that about sixty people now alive would get falsely executed, which is probably very high, given the kinds of constraints we place on executions.

Broadly speaking, it seems to me that the correct penalty for any crime will be the harshest one that reasonable, decent people would accept in advance for themselves and everybody else, regardless of their social position (along with a proportionate likelihood of error). Thus, the fines for things like running red lights should be enough to sting practically everybody, or else the pledge we all take not to go through red lights won't be meaningful. But such a fine cannot be so high that a person who is barely rich enough to have a car is going to be made destitute. Anyone might someday find himself reduced to stealing bread to feed his family, so most reasonable people would not agree to any very harsh penalty for that. But nobody is forced by circumstances to commit armed robbery, regardless of their situation, so I think any reasonable person should be happy to pledge substantial jail time as collateral against their doing it. And for murder in the first degree? As I have said, I would be happy to guarantee against this with my own life, and I do not see why any reasonable, decent person would do otherwise, in exchange for any increment of social trust.

Well, maybe this is just my suburban background, or my education, or my so-called "white skin privilege" talking. Privileged, educated people like myself rarely commit murder, after all, so it's easy for me to promise that I won't, and pledge my life to back it up. It hardly seems fair to demand the same promises of poor, black high-school dropouts, who are much more likely to commit such crimes. But attend to the alternative. Shall we really say that poor black people would not, or should not, be willing to take the same pledge, regardless of their circumstances? Statistics do show that black people have committed more murders than white people, despite their smaller population, for the past few decades – that's just a fact. But here is a decision that we have to make now: we can expect poor black people to behave as decently as anybody else, or we can expect them to continue to commit more murders and other violent crimes, in which case we have no choice but to trust them and respect them less than we do white people – as if their lower average prosperity made them retarded, or mentally ill, or generically childish. I am not willing to do that. If I were to start treating black people as less than myself, lower than myself, in respect of basic human decency, then that is what would make me a racist. The alternative is to treat black citizens as moral equals to ourselves, despite the awful problems that some poor black (and poor white) people have to contend with. This is what I try to do, and what I want us all to do, despite how awkward this can sometimes be.

Look at our soldiers. These people pledge their lives in our defense, and what they get in return, essentially, is not a dirty job with lousy pay, but the automatic respect of most of their fellow citizens. You can come from the poorest, nastiest background – and a lot of soldiers do – and just by joining the army you get more respect than a professor in a lot of places, precisely because this means that you have pledged your comfort and your freedom and your life in the defense of your compatriots. But does this mean that we have to redeem these pledges in the case of war? Can't we just keep our troops at home? Unfortunately, sometimes, no, our soldiers must march into battle, sometimes to forfeit their lives – and they will face the sternest consequences, even the death penalty, if they should refuse. But isn’t this unfair? Isn't it just human nature for soldiers to run away when they are being shot at? Yes, it is just human nature. But if our soldiers actually ran away with any frequency, then we wouldn't be able to take their pledges seriously in the first place, and the desire for high trust and respect that motivates most soldiers – poor minorities as much as anybody else – would have no other ready means of satisfaction.

What I would like is for all our citizens to be like soldiers (also firefighters and police), if only in a very small way. I want us all to pledge our lives as surety, not to defend our fellow citizens at great personal risk, not indeed to take any risks, or to perform any positive action at all, but merely to refrain from slaughtering innocent people. This is not a lot to ask of anybody, but it would help to support a somewhat more trusting and respectful society. I know that anyone who would be willing to take that very minimal pledge would gain at least a measure of respect and trust from me, including the next 18-year-old black man I ran into on a sidewalk in the middle of the night. And anybody who would really not be willing to take such a pledge, when thinking only of his own self-interest and self-respect, a pledge of his life just not to murder anybody in the first degree, is someone I don't want in my society.