The Death Penalty – Yes, No, Maybe?
The revival by Trump/Barr of the federal death penalty was the impetus for me to finally put into writing how have I’ve been thinking about the death penalty. I hate, during election season, when I get the survey calls, and one of the questions is, “Do you support the death penalty?” They want a “Yes, No, Don’t Know,” but the best I can do is “well, sort of.”
Let me take you on the trail of my probably twisted logic on the subject. We’ll start with the reasons against the death penalty. Frankly, they are compelling, and most are based on mistaken beliefs about the penalty. The “law and order folks” tell us it makes us safer. Nobody wants to be put to death, so it is a great deterrent. We need to get these evil people off the streets, and dead so they can never hurt another person. And besides, it’s cheaper to just kill them than to imprison them for life and victim families deserve that closure.
Let’s dissect each of these. There’s no evidence the death penalty reduces crime or the murder rate. The National Research Council reviewed all of the deterrence studies from all sides of the issue and found there was no credible evidence that the death penalty deters murder.1 There are several ways to look at this. Key is the fact that it would follow state with the death penalty would be safer. Turns out the opposite is true. Regions with the most executions have the highest murder rates, and in states that have repealed the death penalty, there’s no increase in murder rates. In fact, murder rates fell in New York State, New Mexico, Illinois, and Connecticut in the years following repeal.
It also seems to just anecdotally follow that it isn’t an effective deterrent. First, executions are far removed from the actual crime. By that I mean the execution happens years, if not decades after the crime was committed. Murders are often crimes of passion or happen in a rush of events (a robbery gone bad, a domestic situation that goes too far, etc.). People in these circumstances are not stopping to weigh the risks of possible punishments. In other cases, the murders may be well-calculated, but if that’s the case, the murderers are certainly not expecting to get caught.
It’s not cheaper, even in the long run. First, it can take up to 20 years to exhaust all appeals, so there are the same costs for incarceration to a large degree. Every study done seems to show that it costs significantly more to prosecute death penalty cases than to pay for extended incarceration. A 2017 independent analysis of the costs of capital punishment estimates the state of Oklahoma costs, on average, $110,000 more than non-capital cases. 2 The West Palm Beach Post found that Florida would save $51 million each year by punishing all first-degree murderers with life in prison without parole.3
I was listening to a report on NPR this morning, and they were interviewing a victim rights activist. This issue of closure and “justice” for survivors came up. It rarely provides the closure these folks think. First, you have to realize that not all survivors are in favor of the death penalty and object on religious and moral grounds. The interviewee this morning reported that many families, after going through the lengthy emotional roller coaster of a death penalty process end-to-end changed their minds and felt like a life sentence would be better. That then raises the claim about keeping the evilest people locked up forever. Well, it turns out that life without parole means just that, life without parole. Absent some future finding of innocence or a pardon or commutation, people who receive that sentence will be prison until they die.
Lay loves to watch the real-life crime procedurals, including the ones about prison life. Let’s be clear, maximum-security prisons are not the summer camps that lots of people like to believe they are. I’m not sure that life without parole isn’t a worse sentence than death.
And then there is the elephant in the room. We can be certain that innocent people have been put to death. We can know this because of the number of people on death row who have subsequently been found not guilty, and in many cases that has happened just before, and in a few, after their death.4 You can’t take back an execution. You don’t get a do-over.
So with all this said, if we’re going to continue to have a death penalty, and we know it costs more, doesn’t make us safer, isn’t a deterrent, then we need to just admit it’s about vengeance. I think if we realized that, and accepted that’s what it is about, we might look on it differently. We might use it more sparingly.
And that’s why I can accept it in some few cases. Sometimes a crime rises to such heinousness society just needs to exact vengeance. Even the founders expected it to be used for only the very worst of crimes…the worst of the worst. For me, the perfect example of the type of crime where I could accept the death penalty was the Oklahoma City Bombing of the federal building. It meets all my criteria.
The bombing was a direct attack on a large number of people, and on America itself as an attack on those working for us in our government. It was especially gruesome because it included children. There could never be a justification for what was done. In addition, the perpetrator admitted to the crime, and significant evidence corroborated his admission. In fact, it was very likely he would have been convicted absent the confession. (I’ve learned watching these crime procedurals with Lay that a confession doesn’t always mean a person committed the crime.)
I am OK with a person who commits a crime like that being put to death. I doubt any of the victim families felt any less of a loss after McVeigh was killed in prison. Their lives were not better than the day before his death or the day before his sentence. We’re not a better country because of his sentence. Sometimes, some things are just so evil vengeance is what society demands.
But I think we’ve come to use it far more often than it should be. What’s left. If we put someone to death for killing someone during a drug deal gone wrong, how do we punish the next Timothy McVeigh? How do we, as a society, designate the bombing of a public building as worse than any other murder, if we use the same penalty for both.
So yeah, I have a nuanced view of the death penalty. I think that our criminal justice system is not perfect enough to take the power of life and death into its hands, but I do think as a society we have the right to claim vengeance in certain of the worst cases of evil.
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Loading ...- “Deterrence and the Death Penalty,” National Research Council: Law and Justice, April 2012.
- State Studies on Monetary Costs, Death Penalty Information Center, 2017.
- “What Price for Vengeance on Society’s Worst Killers?,” Palm Beach Post, Capital Bureau, S.V., Jan. 2000.
- “Former Supreme Court Justice Confirms Texas Once Executed An Innocent Man,” Buzzfeed News, Tasneem Nashrulla, Jan. 2015.
