7/03/00 10:45 a.m.
Alter Falters
When debating capital punishment, innocence is not the issue.

By Robert Pambianco, chief policy counsel, Washington Legal Foundation

ichael Kelly wrote not too long ago that with the exception of 13-year-old girls, there is no group more prone to group-think then the press. Confirmation of that statement can be found in the ongoing stampede of news stories about the death penalty, which stand in sharp contrast to the public’s lack of concern for the issue.

Among the latest to join the bandwagon is Jonathan Alter, who, in last week’s issue of Newsweek, explains his conversion to the anti-death-penalty side. Like so many of the other participants in this one-sided discussion, Alter focuses on the possibility of innocent people being executed rather than on the morality of capital punishment. Indeed, he goes to great length to underscore that he is not a criminal-coddling, bleeding-heart liberal and that his opposition is animated only by a concern for fairness. Which is a shame, because why should one be opposed to capital punishment if not out of a conviction that it is immoral? Innocence is not the issue; nor should it be.

For one thing, the innocence argument is just plain bogus. Innocent people are not being put to death. Can anyone guarantee that an innocent execution could never happen or that it has never happened? Of course not. But the death penalty is as close to a sure bet as you’re going to get anywhere in the law. While imperfect, the system bends over backward to ensure the guilt of those executed, and people can be more certain about capital punishment than most else in life.

What none of the commentators who have fixated on innocence seem to grasp, is that judges love to overturn death sentences. Appeals courts make these decisions all the time not because the system is hopelessly flawed, but because the system is super cautious about executions. As it should be. All the chatter about mistakes at trials raises the obvious question: Would opponents be happier if the courts of appeals were less aggressive in their scrutiny of such cases? But enough about that, because innocence is not the issue.

Life is full of activities which we know with a certainty will result in people dying unintentionally — driving, flying, waging war, mountain climbing, vaccination programs, and so forth. Despite this knowledge, people and governments engage in such activities because of a determination that they are otherwise legitimate or beneficial.

For example, it is known that when a government sends soldiers into battle a certain number of innocent casualties will result. It is also known that there is high likelihood that a certain number of said soldiers will die as a result of friendly fire. Do such facts mean that the country should not use force to defend its interests because of that knowledge?

Consider another, more topical, example. Government officials know that innocent people will be killed, raped, or otherwise made the victim of a crime as a consequence of paroling prisoners. However, some jurisdictions maintain these programs because of a determination that they serve some supposedly useful purpose (a dubious proposition to be sure).

Of course, at a certain point such crimes would become — and in many states did become — intolerable. Certainly, in the case of capital punishment, if there was some reason to believe that innocent people were regularly being executed, then the innocence question would be relevant. However, nobody seriously believes that. In the overwhelming majority of capital cases, there is no credible issue of innocence, and most death-row appeals are not even based on a claim of factual innocence.

Boiled down, the argument about innocence is an argument for abolishing the criminal-justice system. In essence, opponents are saying that unless someone can guarantee with absolute certitude that no innocent person will ever be put to death — in other words unless the system can be shown to be infallible — it should not be allowed to operate.

Well, if society must be denied capital punishment because of an inability to ensure perfection in its implementation, then how can society maintain the punishment of life in prison with no possibility of parole? After all, the chances of an error in a non-capital murder case are much higher because of the safeguards and redundancies built into the capital cases. (One of the ironies about the innocence issue is that an “innocent” man — defining that term as broadly as possible — sentenced to death is much more likely to be vindicated than one sentenced to life in prison.) Applying the innocence rationale, the imperfect life sentence also should be eliminated. At a minimum, there should be a moratorium so the issue can be studied.

Placing the Risk
Rather than obsessing about the risk of an innocent execution, it is better to ask where risk should be placed — more accurately, on whom should it be placed.

It is well known that there is disagreement about the deterrent value of capital punishment, and opponents insist that deterrence cannot be proven. That is true in the sense that many different factors affect the vagaries in crime and murder rates around the country, and it is difficult to say for certain what factors are controlling. However, even if one concedes for the sake of argument that the death penalty does not have a substantial impact on the overall murder rate, commonsense dictates that it deters some crimes, even if only a relative handful.

So, where do you want to place the risk? On the truly innocent murder victims or on the death-row prisoners who have been convicted by a jury and who will be afforded roughly eleven years of appeals in federal and state courts before the sentence is carried out — if ever.

Opponents of capital punishment put much faith in their assertion that nobody, especially the governor of Texas, can state with certainty that every person put to death was guilty of the crime. Very well, but how certain are they in their conviction that it’s never a deterrent to murder?

What about the risk that opponents are wrong about deterrence? Suppose capital punishment prevents 50 murders in a year, or even ten? In terms of society’s crime problems, these murders may be insignificant. Not to the 50 or the ten, however. Are opponents of capital punishment so confident in their position that capital punishment deters no crimes, that they are willing to risk those people’s lives?

If supporters of capital punishment who believe it’s a deterrent are wrong about the deterrent, the result is that people convicted of horrible brutal crimes will be executed. If opponents are wrong about deterrence and prevail in eliminating capital sentences, the result will be the murders of some number of really innocent people. That risk seems much more intolerable than the extremely remote possibility that an innocent person could be executed.

Make no mistake about it, deterrent or not, capital punishment saves lives. It is undisputed that murderers kill again. In states that do not have capital punishment, prosecutors are unable to use the death penalty as a negotiating chip. That is, they are unable to exchange a promise not to seek the death penalty in exchange for a guilty plea and life without parole. In those states, they almost always have to take these cases to trial and a jury. And the risk of a guilty defendant going free — free to kill again — increases accordingly.

Then there are the prison murders, i.e. murders of guards and other prisoners. How do you punish a murderer who is already serving consecutive multiple life sentences unless capital punishment is an option? Hint: You can’t. In the absence of a possible death sentence, there is no judicial mechanism to restrain the behavior of such prisoners. They are there for life, and without capital punishment they know nothing else can ever happen to them.

Again, maybe this is not a large number of cases. But when talking about the death penalty, one is never talking about lots of cases. There are about 12,000 murder convictions every year, and of that number about 300 or so will be sentenced to death, and in any given year maybe 100 executions will occur. Contrary to the assertions of anti-death penalty activists, capital punishment remains reserved for a tiny group of the most cruel and violent murders, e.g., those involving multiple victims, other violent crimes, victims who are children, victims who are tortured, etc.

Which brings us back to the big morality issue. Alter and others emphasize that a moral objection is not the impetus for their position; this is strange. Morality would seem to be the only conceivable legitimate reason for opposing capital punishment.

It is, after all, a life and death issue. So how can one debate it without addressing the morality or justness of this form of punishment. And if one believes that capital punishment is just, it seems ludicrous to suggest that society should be denied this form of justice because of a theoretical possibility that in a rare case it could be misapplied.

Insisting that capital punishment is wrong because it is the deliberate taking of a human life is a logical, coherent position. It is not one that I share, yet I can respect those who make it. It is a view based on principle as opposed to utilitarianism.

The focus on innocence is a smokescreen, which trivializes and diverts attention from the real question.

Are there some crimes that are so heinous that it would be an injustice to impose less than the ultimate punishment? The answer is yes, but why is it that so many opponents of capital punishment want to avoid such questions?