the Greater Nomadic Council

Death to the Death Penalty

Prompted by comments in a previous thread, I've decided to write about why I'm opposed to the death penalty in order to, hopefully, prompt a debate on the matter.

One of the best and most eloquent defenses of capital punishment in murder cases is John Stuart Mill's "Speech In Favor of Capital Punishment".

Mill begins his defense with an appeal to compassion, arguing that the death penalty is actually less cruel than any other reasonable punishment for aggravated murder:

I defend this penalty, when confined to atrocious cases, on the very ground on which it is commonly attacked--on that of humanity to the criminal; as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime. If, in our horror of inflicting death, we endeavour to devise some punishment for the living criminal which shall act on the human mind with a deterrent force at all comparable to that of death, we are driven to inflictions less severe indeed in appearance, and therefore less efficacious, but far more cruel in reality.

However, this passage subtly contradicts itself. Since we consider murder the "most heinous of crimes" and wish to do everything in our legal power to deter it, then surely a less cruel punishment would induce less fear in those who might face it, not more. If there is a correlation between the fear any given punishment induces in a potential murderer and whether or not he murders, why not opt for the crueler, yet still humane, punishment? We already imprison for life those convicted of lesser crimes which is fairly convincing evidence that we do not, in fact, consider capital punishment the less cruel crime. Of course, Mill here is talking about "imprisonment with hard labor for life," which, as a sentence we no longer impose on civilians, is not germane to the discussion. However, Mill is not actually concerned with the objective harshness of the death penalty, but with the fear it imposes:

For it is characteristic of all punishments which depend on duration for their efficacy--all, therefore, which are not corporal or pecuniary--that they are more rigorous than they seem; while it is, on the contrary, one of the strongest recommendations a punishment can have, that it should seem more rigorous than it is; for its practical power depends far less on what it is than on what it seems. There is not, I should think, any human infliction which makes an impression on the imagination so entirely out of proportion to its real severity as the punishment of death.

I must agree with this as most rational people fear death more than imprisonment. That, however, is the flaw. The vast majority of murders are not pre-meditated; they are, instead, "crimes of passion." In these cases, there was, by definition, no time for the murderer to consider the consequences and, hence, no possible deterrent effect for any punishment, be it death or a lesser one. Of course, this leaves the problem of pre-meditated murder, a crime for which capital punishment might be considered more justifiable. Unfortunately, it can be difficult to impossible to discover motives. A clever murderer could arrange the crime to appear as one committed in a rage, whereas a truly unpremeditated one could easily appear to a jury as just the opposite. Naturally, there are cases where there can be little to no doubt about the nature of the murder, but there are also many hazy cases. The injunction to find in favor of "reasonable doubt" has proven itself insufficient in determining the guilt or innocence of many defendants; there is no reason to assume it can do better when dealing with a more subtle and difficult distinction.

All this is moot, though, if it can be shown that the death penalty deters more murders than other punishments. After all, better that a few more murderers die, whether their crimes were premeditated or not, than innocents. Mills writes:

As for what is called the failure of death punishment, who is able to judge of that? We partly know who those are whom it has not deterred; but who is there who knows whom it has deterred, or how many human beings it has saved who would have lived to be murderers if that awful association had not been thrown round the idea of murder from their earliest infancy?

Unfortunately, there is no evidence that the death penalty deters murders. Of the states without a death penalty, ten of the twelve have the fewest per capita murders. Of those that do, over half have the highest. This, alone, is not enough to prove there is no deterrent effect though. Each state, though still having much in common with the others, has its own culture and its own history that could affect such statistics. Far better then to compare neighboring states or the same state with and without capital punishment. In the former case:

When comparisons are made between states with the death penalty and states without, the majority of death penalty states show murder rates higher than non-death penalty states. The average of murder rates per 100,000 population in 1999 among death penalty states was 5.5, whereas the average of murder rates among non-death penalty states was only 3.6.

A look at neighboring death penalty and non-death penalty states show similar trends. Death penalty states usually have a higher murder rate than their neighboring non-death penalty states.

In the second case, the history of a state that has both had and not had the death penalty, there is actually evidence that the death penalty increases the murder rate.

So, given that the data suggests capital punishment does not deter murders, there is no case left except that of the morality of the punishment itself. If it is morally right for the state to kill murderers, then deterrence is only a secondary concern. However, this morality would be negated if, as Mills writes:

by an error of justice an innocent person is put to death, the mistake can never be corrected; all compensation, all reparation for the wrong is impossible. This would be indeed a serious objection if these miserable mistakes--among the most tragical occurrences in the whole round of human affairs--could not be made extremely rare. The argument is invincible where the mode of criminal procedure is dangerous to the innocent, or where the Courts of Justice are not trusted.

Of course, Mills underestimated the danger of innocent people being convicted. Since 1973, 114 people have been exonerated; this is unlikely to be all the innocent people on death row. Many of them were found not guilty due to the work of volunteers and students, not the courts. In fact, the system is so flawed that Illinois's pro-death penalty former governor, George Ryan, declared a moratorium on the punishment and appointed a special commission to look into the problem of innocent victims of the punishment. The commission found:

After two years of concentrated study and discussion, all Commission members were left with the firm belief that the death penalty process itself is incredibly complex, and that there are few easy answers. The Commission was unanimous in the belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death.

Mills also deals with this, but draws the wrong conclusion:

Even that which is the greatest objection to capital punishment, the impossibility of correcting an error once committed, must make, and does make, juries and Judges more careful in forming their opinion, and more jealous in their scrutiny of the evidence. If the substitution of penal servitude for death in cases of murder should cause any declaration in this conscientious scrupulosity, there would be a great evil to set against the real, but I hope rare, advantage of being able to make reparation to a condemned person who was afterwards discovered to be innocent. In order that the possibility of correction may be kept open wherever the chance of this sad contingency is more than infinitesimal, it is quite right that the Judge should recommend to the Crown a commutation of the sentence, not solely when the proof of guilt is open to the smallest suspicion, but whenever there remains anything unexplained and mysterious in the case, raising a desire for more light, or making it likely that further information may at some future time be obtained.

Sadly, as has been shown, this ideal has not and will never be realized in our justice system. Innocent people will continue to be put to death so long as we have a death penalty. Is it therefore right that we keep it in place so that we may punish, but not deter the obviously guilty? Even if it were morally proper to execute the true murderers—an assertion I would likewise debate—the sure knowledge that the death penalty will also and always ensnare innocents destroys that justification. The death penalty is a barbaric, immoral practice and should be permanently abolished.