Several developments over the last three months seem to indicate that our society is at a moment of decision regarding capital punishment. It behooves us, therefore, to think seriously about this issue and clarify the very muddy waters people have made of it. As I explained in my previous column, there are five basic purposes to a criminal justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. Between the two alternative murder penalties of execution and life in prison without the possibility of parole (LIPWPP), we saw that incapacitation and rehabilitation are essentially moot issues. Retribution, however, strongly favors capital punishment. Let’s continue our analysis.
Deterrence is the goal of giving people who might otherwise be willing to commit a crime a strong enough disincentive to prevent them from making this choice.
This is the most complex part of the discussion and the part most misunderstood by nearly every commentator on both sides.
Given the frequency with which they contradict each other, studies have proven useless in answering definitively whether capital punishment deters. Therefore, it’s left to reason to decide, and reason rather counter-intuitively indicates that capital punishment does not deter. Despite wholeheartedly supporting capital punishment myself, I think that emphasizing deterrence is the signature error most of my intellectual allies make when discussing the issue.
Capital punishment does not deter because the capital offender is not the right sort of person.
There are three kinds of people in any society: the good, the barbaric, and the rational. Good people are self-governing enough that they either do not want to commit crimes or else restrain themselves morally from committing them. Clearly, capital punishment does not deter such people because decency or morality gets there first. Barbaric people are so much like animals that they are incapable of stopping themselves from doing the wicked things they want to do. Such people cannot be deterred because they lack the combination of prudence and self-control which deterrence presupposes. Instead, they must be stopped with the use of force. Rational people are those who want to do illegal things but are self-interested enough that they can perform calculations about risk and reward and decide to avoid committing a crime when its legal penalty outweighs its potential benefits. Thus, deterrence is only an issue with respect to rational people.
The problem is that murderers are not rational in this way.
For one thing, they are more likely to be barbaric than to be rational. Furthermore, at the time of a murder, even people who might otherwise be rational or good usually have become momentarily barbaric. This means that they are not performing the sort of calculus or exercising the sort of self-control necessary for deterrence to stop them. But even if they were, I’m hard pressed to take seriously the claim that capital punishment would deter them whereas LIPWPP would not. If they are indeed rational at the moment, surely LIPWPP represents a massive enough disincentive to deter someone from murder. It’s hard to imagine a potential murderer saying to himself, “I’m willing to kill this person because the worst it could cost me is LIPWPP. If only my state had the death penalty, I surely wouldn’t do this thing.”
Even if you can imagine such an internal dialogue in the mind of a potential murderer, the marginal deterrent difference between execution and LIPWPP would be further weakened by several factors.
Murderers always assume they will not be caught. In the event they imagine being captured, they think that they will be able to escape punishment by some legal technicality or a skillful defense. If convicted, they anticipate acquittal or reduction upon appeal. Even so, they know they will likely be alive for several decades while this process unfolds. And in the end, there’s always the hope of clemency or escape. All of these considerations significantly mitigate whatever deterrent power execution has, but there is a much more significant problem.
Criminals don’t know the law that well.
Other than in New Jersey and Texas, I doubt the average criminal actually knows what the current state of the law regarding capital crimes is. And if he does, he surely might imagine that it could change between now and his own unlikely trial or be nullified by some layer of the judiciary including the Supreme Court. All of these factors create such an ambiguity in the mind of even that rare highly-informed criminal who retains enough rationality just prior to the commission of the crime for it to matter, that the difference in deterrent effect between execution and LIPWPP is effectively diluted to zero.
But here’s a thought experiment for you. Imagine that Mr. H. wants to kill his wife and lives near the border of a state which executes and whose neighbor state does not. Other than in the movies, can you really imagine the long process he would have to go through that would result in him saying, “Well, I guess I’ll drive her over next door before I kill her so that, just in case I’m caught, prosecuted, and lose my appeals over 25 years, at least I’ll get to live out the remaining 15 years of my life rather than die by lethal injection”? Such fantasy is beyond even my nimble imagination.
Dennis Prager once said in a column on this topic that a state which made murders committed on certain days of the week punishable by death but by LIPWPP on the others would surely find a shift from the former to the latter for homicides. Though his hypothetical may be correct for a small subset of criminals, I would instead say that waiting a day to kill is very different from transporting a victim across state lines or selecting residents of another state for victims based on such calculations. Weird hypotheticals produce unreliable conclusions. I know Dennis, and I think his error stems from thinking criminals are even remotely as rational as he. They are not.
Understanding all of this, it should now be clear that capital punishment does not deter. But what if it did?
You may disagree with every point in my prior analysis, and I’m sure many of you will relish doing so. But for the sake of argument, allow me to grant that threatening people with execution for murder might actually deter. Would that justify using it? I say not, and I’ll explain why in my next column.
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