The Chair Deters

National Review, July 17, 2000 by 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.