Posted on 08/30/2002 5:59:57 PM PDT by Coeur de Lion
By a terrible and macabre coincidence both the American and British peoples have found themselves confronted in the last few days with the chilling evil of child murder — and with the grave dilemma of exactly how to punish and deter it.
Last week a California jury found David Westerfield guilty of the kidnapping and murder of his neighbor's daughter, seven-year-old Danielle Van Dam, while in Britain the entire nation was convulsed for weeks over two missing ten-year-old girls. A nationwide hunt ended when their charred remains were found in a ditch. A school janitor has now been charged with their murders and, in a horrible echo of the "Moors Murders" four decades ago, his girlfriend is suspected of complicity in their deaths.
In both cases, it seems that the general public would like to see the death penalty imposed for these and similar crimes. If so, their wishes are almost certain to be thwarted by political elites.
In Britain this elite opposition is quite open. Though polls show that 82 percent of the British would like to see the death penalty restored, the politicians refuse to even to discuss the matter. Their reluctance is reinforced by strong pressure from the European Union that has decreed the death penalty to be incompatible with membership in its civilized ranks. Indeed, EU ambassadors troop annually to the State Department to protest the continued use of capital punishment in the U.S. — and the secretary of state replies apologetically that this is not really a matter for the federal government.
In California, the opposition is more subtle — perhaps because it is carried out in the obscurity of a tortuous appeals process. This is likely to ensure that even if Westerfield is sentenced to death, he will probably die of old age as courts endlessly debate his rights.
Since this looks embarrassingly like an undemocratic contempt for majority opinion, opponents of capital punishment realize that they need formidable arguments to justify it. The arguments they use are as follows: that justifying the death penalty on the retributive grounds that the punishment should fit the crime is barbaric; that it does not deter potential murderers as its advocates claim; that there are no other arguments that might justify the state taking a life; that it risks killing the wrongly convicted; and, all in all, that it is a cruel punishment incompatible with a civilized society.
Are these argument formidable? Well, they are repeated so frequently and in tones of such relentless moral self-congratulation that they doubtless come to seem formidable after a while. But they wilt upon examination. Let us take them in turn: Take retribution. This turns out to be a more complex argument that its opponents may have bargained for. To begin with, far from being cruel or barbaric, retribution is an argument that limits punishment as much as it extends it. We do not cut off hands for parking offenses even though that would undoubtedly halt such offenses overnight. Why? Because we recognize that it would violate retributive norms: It would be excessive in comparison to the crime and therefore cruel.
By the same logic, the death penalty is sometimes the only punishment that seems equal to the horror of a particular crime — a cold-blooded poisoning, say, or the rape and murder of a helpless child, or the mass murders of the Nazis and the Communists.
Significantly, such civilized nations as the Danes and the Norwegians, which had abolished the death penalty before the First World War, restored it after 1945 in order to deal equitable justice to the Nazis and their collaborators. Was that an excessive response to millions of murders? Was it cruel, unusual, barbaric, uncivilized? Or a measured and just response to vast historic crimes?
Even abolitionists find it hard to reply to these questions because they differ among themselves about whether or not to stress the cruelty of the death penalty. Sometimes they assert that it is uniquely cruel; sometimes, however, they claim to favor lifetime imprisonment on the grounds that it is actually harsher than a quick trip to God or oblivion. Acting on the same grounds, retentionists can reasonably (and, I think, correctly) maintain that death is more merciful than lifetime incarceration (especially when that incarceration is accompanied by sadistic brutality from other inmates.)
But this particular dispute is likely to be moot since, as soon as capital punishment is safely outlawed, the ACLU and its camp-followers will immediately file suit to have the courts declare life without parole to be a cruel and unusual punishment outlawed by the U.S. Constitution. In the British debates of the 1970s over whether or not terrorist murderers should face execution, I well remember being assured by politicians who later served as Northern Ireland ministers that convicted murderers would have to serve their full sentence; for there was simply no legal way of releasing them beforehand. Ho Hum. Those same murderers are now walking the streets of Belfast "on license." The Grim Reaper grants no paroles.
So how about the argument from deterrence? Perhaps the loudest and most confident claim made by abolitionists is that there is "no evidence" that the death penalty is a deterrent to potential murders. If that were so, of course, it would hardly be a decisive point in itself. Mere lack of evidence would not establish the reverse proposition — it would not prove that capital punishment was NOT a deterrent. As it happens, however, this claim of "no evidence" is false.
Last year, a trio of economists from Emory University, Hashem Dezhbakhsh, Paul Rubin, and Joanna Melhop Shepherd, released a study — "Does Capital Punishment Have a Deterrent Effect?" — that concluded on the basis of careful statistical analysis of the recent (i.e. since the restoration of capital punishment in the 1970s) evidence that there was a very significant deterrent effect.
Summarizing their conclusions, the statistician Iain Murray of the Statistical Assessment Service in Washington reported that "each execution deters other murders to the extent of saving between eight and twenty-eight innocent lives-with a best-estimate average of eighteen lives saved per execution." On this reasoning, if the 3,527 prisoners now on death row in the U.S. were to be executed, then something like 63,000 lives would be saved! Even if we scale down these estimates sharply, we are left with a very strong argument for capital punishment derived from social concern for the lives of potential victims and the distress of their families. (Mr. Murray is himself an opponent of capital punishment on religious grounds; so he deserves particular credit for his intellectual honesty.)
So, if opponents of the death penalty are to continue to disparage the deterrent argument, they will have to overturn this new research. Mere repetition of past assertions will not be enough.
That brings us to what is genuinely the strongest argument of the abolitionists — wrongful execution. For it must certainly be admitted that an innocent man might be wrongly convicted and executed, that we can never entirely eliminate that risk, and that such a miscarriage of justice would be shameful. For that very reason we take extreme measures to avoid it. As a result, only a handful of such miscarriages of justice are known to have happened; none of them has happened since the restoration of capital punishment in the U.S. in 1976; and the science of DNA has now added a further barrier to such terrible mistakes. The recent release of man as a result of DNA evidence, cited by Rod Dreher (in The Corner) as justifying his opposition to the death penalty, in reality strengthens the case for it since it makes future errors even less likely than they were before.
Even though wrongful executions are exceedingly rare, we know a great deal about them. Yet we hear little or no mention of their exact equivalent on the other side of the argument — namely, murders committed by those who have already committed a murder, served their sentence, and been released to murder again (or who have murdered an inmate or guard in prison.) That is curious. For a few years ago there were 820 people in U.S. prisons who were serving time for their second murder of this kind.
If the death penalty had been applied after their first murders, their 820 subsequent victims would be alive today. That figure is not a statistical inference but an absolute certainty. Of course, it is intellectually possible for abolitionists to argue that it is better to acquiesce reluctantly in the murder of 820 innocent men than to execute mistakenly one innocent man — but somehow I doubt if that argument, stated so plainly, would convince the democratic majority.
What those 820 murders establish is that, contra the abolitionists, there is another strong argument for capital punishment. It is known technically as the argument from incapacitation (i.e., dead men commit no murders.) And that argument alone is more than adequate justification for capital punishment. That is perhaps why we never hear of it.
Where, then, does that leave the final, broad conclusion that capital punishment is incompatible with a civilized society? Well, to answer that, we must have some idea of what abolitionists mean by "a civilized society."
Do they mean a society that has a written language, at least an oral historical tradition, social institutions that claim a monopoly of force and violence, and similar social inventions? It would seem not since such societies have almost invariably imposed the death penalty, sometimes for crimes much less serious than murder. Indeed, the replacement of private vendettas by state executions is as good a definition of the birth of civil society as political scientists can come up with.
Do they then mean a society marked by gentle manners, courtesy, low levels of private violence, and declining crime? If so, that argument too backfires on them. Britain in the 1930s and America in the 1950s were societies that had achieved high levels of social tranquility by comparison with their own pasts and the standards of other advanced societies. Yet they employed the death penalty for serious crimes — indeed, murder trials were among the gripping social entertainments of those days. And as the death penalty was gradually abolished (formal abolition generally following on a growing reluctance to impose it except in the most terrible cases), so crime and violence rose, and so society became increasingly brutalist in its popular culture — the violence of films and television making the murder trials of the 1930s seem, well, civilized by comparison.
Britain is still in the midst of this perverse experiment that combines official squeamishness with rising levels of violent crime; America began to restore the death penalty in the 1970s — and 20 years later violent crime began to fall.
What the "civilized" argument boils down to in the end, as the late Ernest Van Den Haag used to point out in his intellectual demolitions of the abolitionist case, is the circular logic that capital punishment is incompatible with a civilized society because a civilized society is one that rejects capital punishment. Or, to put the abolitionist case as simply as possible: "People like us don't like capital punishment."
A genuinely civilized society would take a very different view of the evidence cited above. It would pay more attention to the cries of the victims than to its own squeamishness. And it would transfer its compassion from the David Westerfields of this world to the Danielle Van Dams.
For if the death penalty would certainly have saved 820 innocent lives, and might arguably save tens of thousands of innocent lives in the future, almost certainly at the cost of no innocent lives at all, then surely a society that shrinks from using it deserves to be called sentimentalist and cruel rather than civilized. And if in addition it ignores majority opinion in order to indulge its refined sensibilities, then it deserves to be called undemocratic too.
When next the EU ambassadors come calling at the State Department to complain of executions in Texas, Colin Powell might tell them exactly that.
SEND ME TO THE 'LECTRIC CHAIR
Judge your Honor, hear my plea
Before you open up your court.
But I don't want no sympathy,
'Cause I done slit my good man's throat.I caught him with a triflin' Jane
I won him back before
I had my knife and went insane
And the rest you ought to know.Judge, Judge, please Mr. Judge
Send me to the 'lectric chair
Judge, Judge, good Mr. Judge
Let me go away from hereI want to take a journey
To the Devil down below
I done killed my man
I want to reap just what I sow.Judge, Judge, Lordy, Lordy Judge
Send me to the 'lectric chairJudge, Judge -- hear me, Judge
Send me to the 'lectric chair
Judge, Judge, send me there Judge
I love him so dearI cut him with my barlow,
I kicked him in the side
I stood there laughing over him
While he wallowed 'round and died.Oh Judge, Judge, Lordy Judge
Send me to the 'lectric chairJudge, Judge, please Mr. Judge
Send me to the 'lectric chair.
Judge, Judge, good kind judge
Burn me -- cause I don't care.I don't want no bondman to post my bail
I don't want to spend no ninety-nine years in jail.
So Judge, Judge, good kind Judge
Send me to the 'lectric chair.
A truly civilized society takes quick and effective action to insure that the perpetrator of such a heinous and ultimately unforgiveable crime shall never repeat this unpardonable act.
There is only one way to do this. And a truly civilized society adopts the requisite method without whining or quibbling.
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