A Logical and Just Practice

National Review, July 17, 2000 by 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."