Friday, December 12, 2003

Punishment is a Capital Idea

The Death Penalty has always been one of the more controversial pieces of our penal system.  On some level, it hearkens back to Biblical punishments: “An eye for an eye.”  Some deem it a way of providing closure for victims’ families, especially in light of our system’s parole methods, whereby a killer can sometimes eventually go free before having served an entire term (although they have to convince a board that they have learned their lesson, are sorry, have changed, etc.).

Opponents like to put up four primary arguments against it.
  • First, that we know our system is flawed, and we sometimes unfortunately put innocent people in prison.  And given that that is bad enough, how much worse is it to kill someone for a crime that they did not commit?  This is really the most cogent argument against the death penalty, that it raises major moral and ethical dilemmas.  I tend to think that we should not use it if there is the barest shadow of a doubt; in my college days, I was much more willing to to discard some innocents in the name of disposing of the truly bad ones, but I know more about the real world today.  Fortunately, with DNA evidence techniques and such, we are increasingly able to toss that shadow of a doubt.
  • The second standard argument is that European countries have almost to a one done away with the death penalty, and so should we, in order to become more civilized.  Unfortunately, this ignores the question of why the Europeans have discarded it.  I don’t think it is only because they are more “civilized” (whatever that means).  I think that because of their smaller societies, different diversity of populace, language, and thought, different legal structures, and so on, that they simply have a lower incidence of such extreme violent crimes.  (Statistics bear this out, from what I’ve seen.)  As a result, they simply don’t have either the number or percentage of criminals involved in death penalty-level crimes, and thus perhaps less need to deal with them in extreme ways.
  • Third is the claim that the death penalty is cruel and unusual punishment.  Hello?  The person (assuming they are actually guilty) killed someone.  (In most cases.  I don’t know that the death penalty is appropriate for violent or serious crimes which don't result in death or maiming.)  I suppose you can argue that some of the death penalty methods (electrocution, hanging) may be more painful than others, and thus more “cruel” (but then again, some death crime methods are also more painful than others), but in the end, the criminal is getting what he or she dished out.
  • The fourth — and my “favorite” &mdash argument against the death penalty is that it doesn’t work.  Not that it fails to kill people, but that as a deterrent, it doesn’t work.  Follow that thinking through: despite having the death penalty available as an option (in most states), people still kill, and thus the death penalty doesn’t serve to stop anyone.  Do you see the fallacy in there?  Let’s try it with a different violation of the law and a different penalty.

    There is a fine associated with automobile speeding.  The more you speed, the higher the fine, and it may be increased further in construction zones, school zones, and under other circumstances.  But people still speed, don’t they?  Does that mean that the deterrent of the fine doesn’t work, that the existence of the fine doesn’t stop speeding?  What if the fines were ten times as high: speed and you face a $2000 fine.  Would that stop speeding altogether?  No.  What if the penalty was the extreme: death.  Would no one ever speed again?  Heck no.  What you would find is most people would pay really close attention to their speedometer, and a heck of a lot of people would abandon their cars completely, to prevent the accident.  A small minority would still speed, most of them probably only a little (like many of us do now, 3-5 miles over the speed limit), with the expectation that they would not get caught, or they would be able to legally wrangle themselves out of the extreme punishment.  But so long as there were cars and speed limits, people would do it, no matter what the penalty.
So back to the death penalty for capital crimes…?  The question isn’t whether the death penalty is a deterrent at all, it’s whether the death penalty is an effective deterrent. We know there will always be extremists (of whatever stripe) who will commit the crimes.  But will the existence of major penalties slow them down any?  Will it stop any of them?  Has there ever been a single person who, because of the death penalty as a potential result, decided to cool his or her head and thus did not kill someone?  I don’t know, of course, but I sure do believe that it’s likely to have happened at least once, and thus probably actually fairly often.  (On some level, every time you, a non-criminal, give any thought to the penalty, it is doing its job as a deterrent, reminding you of the extreme result that extreme actions can have.)

So then we’re left with the much dicier question: given that the death penalty presumably does act as a deterrent, for some people and in some cases, can we measure how good a job it does?  (I suppose we could try to find similar populations in states which do and do not have the penalty and compare violent crime rates, but I suspect that the cognizance of “There’s no death penalty in this state, they can’t kill me for this crime” really doesn’t enter into things to the degree that “The death penalty means I could get killed for this crime” does.  Even if a given state doesn’t have the penalty, the thought probably is that the country as a whole does, and that’s sufficient.)  And the parallel question: is it possible to shift the way our system operates so that the deterrent of the death penalty is more effective, such that people will both be aware of it and won’t believe that they can get off with a lesser penalty for the crime.

Needless to say, I don’t have an answer for these.  So I’ll just settle for recognizing that the argument that the death penalty isn’t a deterrent is flawed and doing my best to make sure the opponents of it are aware of that.  In my experience, on many social issues, neither proponents nor opponents have genuinely thought through their support/opposition to it; rather, they just parrot a simplistic phrase about the subject that they got from someone else, someone who had an agenda to conflate a deterrent which isn’t 100% effective to one which isn’t effective at all, or someone who is just over the top with regard to punishment in general.

Updated on October 26, 2010

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