The Capital Question
The debate continues.

By John O’Sullivan, William Tucker, & Peter L. Berger
From the July 17, 2000, issue of National Review

Editor's note: Yesterday, in light of the current debate over capital punishment sparked by the delayed Timothy McVeigh execution, NRO posted Carl Cannon's June 2000 cover essay for National Review, "The Problem with the Chair: A Conservative Case Against Capital Punishment." Today, we reprint the responses to his piece, from John O'Sullivan, William Tucker, and Peter Berger, which ran in the July 17, 200 issue of National Review.

A Logical and Just Practice
John O’Sullivan
Ernest van den Haag identifies three justifications for punishing criminals: deterrence, retribution, and incapacitation. A possible fourth — reforming the criminal's character — he dismisses as unachievable. It is in any event hardly relevant to the death penalty unless "reform" is used in a highly metaphorical sense. Of these justifications two are invariably employed in the debate over capital punishment: deterrence and retribution.

The general impression is that opponents of capital punishment reject both justifications. That is not so.

Almost no one denies that the death penalty deters murder. What critics contend is that it is not a unique deterrent; severe penalties such as life imprisonment would do as well. But in fact, some statistical evidence suggests that life imprisonment is a lesser deterrent than death. We need not rely on statistics alone, however. The plain fact is that the severe alternatives to capital punishment fade away on examination.

A life sentence in theory is often six years' imprisonment in practice. The recent release of terrorist murderers in Britain as a result of the Northern Ireland "peace process" contradicted countless assurances by British ministers that they would serve their full terms. Many of these assurances were responses to demands that death be imposed on the murderers.

Even if we concede that the death penalty and life imprisonment deter about equally, that does not constitute a clear case against one unless we are given good reasons for preferring the other. And here retribution comes in.

Supporters of capital punishment contend that a punishment should be in some sense proportionate to the offense; opponents reply that such retribution, and the "judicial murder" it supports, are relics of barbarism incompatible with a civilized society.

In fact, retribution limits capital punishment (and all other punishments) as much as it supports them. Eighteenth-century juries — who cannot be suspected of softness on crime — refused to send people to the gallows for sheep-stealing because they thought the penalty unduly harsh. Yet if deterrence were the sole justification for punishing criminals, we might logically impose the death penalty for parking violations and upward. If retribution is a necessary element in punishment, then, does it justify or even require the death penalty? Death is certainly a proportionate penalty for murder — "an eye for an eye," etc. Most of us would feel, however, that not all murders are equally serious or deserving of equal punishment. A proportionate approach to punishment would distinguish between different murders as between different burglaries. Maternal infanticide, for instance, has traditionally received lighter punishment than other homicides because it was felt that nursing mothers were often under great strain and not always in control of their reactions.

Retribution would therefore reserve capital punishment for the most terrible cases — perpetrators of genocide, serial murderers, calculating poisoners. In such cases, however, the limiting effect of retribution would also require the death penalty rather than permanent incarceration because it would be too cruel to put a man in prison with the words "Abandon Hope All Ye Who Enter Here." Death, by contrast, offers either hope or oblivion — both preferable to a living hell.

All this would be beside the point if retribution and capital punishment were incompatible with civilization. But that is plainly not the case. Death was the conventional penalty for murder in every civilized country until the 1950s. It is still supported by popular majorities in many European countries where it has been legally abolished. And its abolition there reflects not the fact that Europeans are more civilized than Americans but that their elites are more liberal and their political systems less democratic. In short, the abolitionist argument redefines the word "civilized" to mean "opposed to capital punishment." Thus translated, the sentence "a civilized person is opposed to capital punishment" becomes "a person opposed to capital punishment is opposed to capital punishment," and hence an uninteresting tautology.

It is, of course, uncivilized to execute innocent persons. And though no human institution can be entirely free from error, that means there must be both very strict safeguards against wrongful conviction and some important benefit that corresponds to the risk of such executions.

The necessary safeguards are provided by a comprehensive system of appeals. And it is absurd to cite successful appeals as indicating legal "errors" that require abolishing capital punishment. The success of these appeals is shown by the fact that there have been only a handful of wrongful executions.

The necessary benefit is provided by the third justification for punishment, one almost never discussed in the context of the death penalty, namely incapacitation--the fact that murderers, once executed, cannot harm anyone again. This is far from being a merely theoretical benefit. As Prof. Paul G. Cassell pointed out in his testimony to the House Judiciary Committee in 1993: "Of the roughly 52,000 state prison inmates serving time for murder in 1984, an estimated 810 had previously been convicted of murder and had killed 821 persons following those convictions. Executing each of these inmates following their initial murder conviction would have saved 821 innocent lives."

Each of those 821 victims is a mute witness to the constant value of capital punishment to set against the handful of mute witnesses to its occasional tragic failure. And since some murderers murder again in prison, an equal protection cannot be obtained by ending parole. Unless, of course, we don't mind if criminals are murdered.

The Chair Deters
William Tucker
The death penalty has become the issue du jour. It isn't too hard to account for this. Liberals see George W. Bush as vulnerable on the issue. But Bush should be congratulated for leading a crusade against the number-one public-health and safety issue of the last 35 years: the astonishing national epidemic of felony murder.

Let's be clear about what the death penalty can and can't do. Executions probably don't deter "crimes of passion." Arguments between spouses, friends, or lovers that escalate into murder probably won't be deterred because there is no rational process leading to this sort of homicide. Tempers flare, people lose control of their emotions and strike out. At least that's what the defense attorneys tell us.

The place where the death penalty clearly intercedes in a rational thought process is felony murder. This is murder committed in the course of another crime — most commonly robbery, burglary, or rape. A person who is robbing a stranger has a rational motive for killing him. The victim is the principal witness to the crime. By eliminating the victim, you eliminate the principal witness.

The decision to escalate a robbery into a murder is sometimes calculated, often impulsive. Amateur criminals are the most susceptible. A young hoodlum hijacks a car and rides around the neighborhood for half an hour trying to find a way to ditch the car's owner. He really only wants the car, but he soon realizes this person has had a long, long look at him. What other way out is there than to murder the victim? The "surprised burglar" is another common scenario. A teenager breaks into a neighbor's house and suddenly the person comes home. The kid only wants jewelry, but the neighbor knows him by sight. There isn't any chance that he isn't going to "tell." Murder is the only alternative. And in the case of a parolee or prior offender facing long years in prison, a few more years tacked on won't make much difference. Much better to chance escaping altogether. Murder is the rational choice.

For centuries, the purpose of the death penalty has been to draw a clear, bright line between felony robbery or rape and felony murder. Rape or rob and you will get a long sentence in jail. But escalate the crime into murder and the punishment becomes qualitatively different: You forfeit your life.

Well, actually, it didn't always work that well. Overzealous use of the death penalty clouded the issue. Hanging people for picking pockets produced unwanted incentives in the pickpockets. From the Enlightenment on, reformers pointed this out. "It is a great abuse among us to condemn to the same punishment a person who only robs on the highway and another who robs and murders," wrote Montesquieu in The Spirit of the Laws (1748). "In China, those who add murder to robbery are cut in pieces: but not so the others; to this difference it is owing that though they rob in that country they never murder. In Russia, where the punishment for robbery and murder is the same, they always murder. The dead, they say, tell no tales."

Nineteenth-century reforms brought a halt to this mistaken practice (except in the American South). A clear line was drawn between robbery and murder. The last execution in New York State took place in 1963. In the chair was a two-bit criminal who had stuck up a bar in East Harlem. When one woman didn't hand over her wallet fast enough, he put a bullet through her forehead. His execution was a clear and precise application of capital punishment. Did it work? The statistical record clearly indicates that it did.

The swift and certain application of the death penalty throughout the early years of the century brought murder into a steady decline. The peak in homicides occurred in the 1930s--generally associated with Prohibition. Executions also peaked across the country in 1935 at 200 (roughly four per state). After that point, the murder rate dropped steadily. As homicides fell, the number of executions followed them down. By the early 1960s, capital punishment was applied only in a few well-publicized cases. Still, the concept of "going to the chair" was fixed clearly in everyone's mind. By 1963, the murder rate was triumphantly low.

Then a fatal miscalculation occurred. Convinced that the problem of felony murder had been solved forever and that it was now "barbaric" to continue executions, liberals mounted a campaign to abolish capital punishment. By 1966 there was a de facto moratorium in nearly all states, and in 1971 the Supreme Court overturned all existing death-penalty laws. But at zero executions, the predictable happened. Beginning in 1966, the rate of murder skyrocketed, soaring by 1980 to more than double the 1963 rate. Moreover, this was not just a broad, general rise in murder. "Crimes of passion" stayed virtually the same. Almost the entire increase was the result of an explosion of felony murder.

Proving cause and effect in broad social trends is virtually impossible, and I will not try to make the case that the rejection of capital punishment was the sole cause of the upsurge in felony murders after 1966. There were many factors at work — urban riots, the broad acceptance of drugs, the general embrace of social disorder. After all, it was the Sixties. But put it this way: If the common social expectation of capital punishment indeed deterred hundreds and thousands of felony murders, and if its removal could be expected to unleash a hitherto suppressed torrent of fatal confrontations, the figures wouldn't look any different than they do in the historical record.

In 1963, 90 percent of murders were "crimes of passion." In fact, one of the major arguments of death-penalty abolitionists was that murder had become a "crime of passion." Therefore the death penalty was "barbaric." In typical liberal fashion, the abolitionists failed to see the vast number of crimes that were being deterred by the death penalty. Once it was abolished, the furies were unleashed.

More than half of all murders are now "stranger murders" — probably the most significant social trend in the last 35 years. Fewer than half these crimes are ever solved, proving beyond any doubt that killing your victim has calculated advantages. Old-time police officers recognize the difference. "I patrolled Flatbush Avenue in the 1950s, and at least half the time when we stopped an armed robbery, the gun turned out to be unloaded," says John Coughlin, a retired New York City cop who campaigns for the death penalty. "The criminals wanted the fear of the gun, but they didn't want even the slightest possibility that the gun might accidentally go off. That meant 'going to the chair.'" Willie Sutton, the most notorious bank robber of the era, prided himself in never harming any of his victims. He had good reason.

Today, murder-in-the-course-of-a-crime has become almost routine. "Leaving no witnesses" is an articulated policy. Homicide is now the number-one cause of occupational death for women and number two (behind vehicular accidents) for men. The highest rate of victimization is among cab and livery drivers, convenience-store workers, gas-station attendants, and bodega owners — people who face the public in commercial settings with little or no protection. The one ray of hope has been in the recent rise of executions. Publicizing of the death penalty seems to be penetrating the criminal mind. As executions have risen steeply in the mid 1990s, the murder rate has dropped precipitously. We are at least back to a level of 1969 — still more than double the days when the death penalty was routinely enforced, but well below the peak of the execution-free 1980s.

In light of this national epidemic, it is difficult to fathom why reporters and editorialists spend so much time wringing their hands over the remote possibility that somehow, somewhere an innocent person may be executed by the state. (In fact, the vast majority of overturned capital cases involve procedural technicalities and do not seriously challenge the guilt of the offender.) Still the critics persist.

In a recent dismissal of capital punishment, even in the most egregious cases, columnist Richard Cohen wrote: "The dead cannot be helped." Retrospectively, the thousands who died over the last 30 years for lack of a death penalty certainly cannot be helped. But prospectively?

Mr. Tucker, a veteran journalist, is CEO of theelevator.com, a matchmaking service for entrepreneurs and investors.

Beyond the ‘Humanly Tolerable’
Peter L. Berger
For a long time, it has seemed that conservatives are as mindlessly enamored of the hangman as liberals are of the abortionist. Given recent developments, however, we may now see a break in at least the former affinity. It would be salutary if George W. Bush, the champion of "compassionate conservatism" and the official in charge of the busiest assembly line of executions in the nation, were embarrassed by the sordid details that have come out of Texas. Perhaps he might even be induced to add a modest disclaimer to his bland assertion of confidence that no innocent person has ever been executed on his watch.

The evidence is rapidly mounting of the likelihood that innocent people have indeed been executed all along. And, as Carl M. Cannon said in the recent National Review, conservatives should not be surprised by this, since the judicial system, after all, is a branch of government: Conservatives have a supremely validated suspicion about government in all of its branches. It is almost an instinct of conservatives to distrust the wisdom of government, and therefore to limit its powers; surely this distrust should extend to this ultimate power over life and death.

To limit the power of government to take life should be a conservative principle — and never mind if Jesse Jackson happens to agree with it. Cannon might have added that a large body of evidence suggests that the death penalty fails to deter, giving this particular exercise of governmental power a distinctively gratuitous character.

Opposition to the death penalty, in the United States as elsewhere, does in fact correlate with other liberal positions. One need have no sympathy with these other positions to agree on the death penalty, and one also need not agree with all the reasons given by liberals for their opposition. Clarence Darrow was an admirable character, but his famous defense of Leopold and Loeb was a masterpiece of mushy thinking: What he essentially said was that we are all animals determined by the laws of evolution — and therefore these two murderers should not be executed. The evolutionary maxim concerning the survival of the fittest in the struggle for existence seems to have escaped him (I would actually argue that Darrow was moved by compassion despite his rather silly philosophy). It is especially important to state that opposition to the death penalty is not necessarily linked to other "soft" attitudes toward crime (such as the notion that criminals are victims of society or that the judicial system should be a therapeutic institution). Opposition to the death penalty, I contend, should be based on much deeper grounds: on the perception that there are acts of cruelty that put in question our very humanity.

It is fair to assume that the overwhelming majority of Americans today are opposed to torture as a form of punishment. Why? It was, after all, a routine practice for much of history and, alas, is still routine in many countries today. One can imagine a social-scientific study showing that the prospect of torture would serve as an effective deterrent. One could also imagine certain judicial procedures to safeguard the innocent. I think (or, perhaps, as a pessimistic conservative, I should say that I hope) that the majority would still oppose torture, for the simple but crucial reason that this is a practice that offends our basic understanding of what is humanly tolerable. Of course, there are extreme cases that would put this understanding under pressure, as in the case of a captured terrorist who knows where an atomic bomb has been placed to go off. But here is another sound conservative principle — that good law must not be based on extreme cases.

And here is the critical insight relevant to this debate: The death penalty is an exercise of torture, superficially sanitized by the quasi-medical method of execution now prevalent in this country. It is an act of unutterable cruelty to hold an individual in prison and to inform him that he will be put to death on a specified date. To perceive the death penalty in this light is not the result of a philosophical or empirical argument. Rather, it is a primordial perception of the limits of what is humanly permissible. This perception, historically rooted in the Jewish and Christian view of the human condition, took a long time to mature and to be disseminated among significant numbers of people. An analogous case is the slow maturation of the perception that slavery is humanly intolerable. Slavery, torture, and the death penalty share this quality of an act that demeans those who inflict it as it degrades and torments those subjected to it. No civilized society should institutionalize such acts.

In the matter of the death penalty, the United States today stands virtually alone among democracies, in the company of a repulsive collection of tyrannies. It is no wonder that American preachments about human rights are treated with derision by many, especially in Europe and Latin America, who share American democratic values. Perhaps — and I say so with minimal optimism — the current debate over the death penalty will lead to a situation that will allow Americans to find other areas in which to affirm their exceptionalism.

Mr. Berger is director of the Institute for the Study of Economic Culture at Boston University. His most recent book is Redeeming Laughter: The Comic Dimension of Human Experience.