DEATH PENALTY: WHAT I’M NOT ARGUING. This John O’Sullivan piece addresses mainly the least compelling arguments against the use of the death penalty in America. Let me take his points one by one (but quickly, since, like I said, he didn’t really engage with the better arguments against capital punishment).

1) Ending the death penalty is undemocratic, since a majority favors it. No kidding. That’s why I’m trying to, you know, change people’s minds and stuff. (This criticism only applies to people who want capital punishment to be abolished by judicial or perhaps federal fiat. I don’t.)

2) The death penalty is the only punishment that fits some crimes. Actually, I’m not sure if the death penalty is bad enough to fit some crimes. A guy rapes and murders seventy women. He gets a lawyer, free food, possibly TV, gym, library, and a quick death without the torture his victims suffered. We don’t want proportionality–we don’t want the punishment to actually fit the crime, because that would require meeting torture with torture. The death penalty is more merciful than strict eye-for-an-eye justice. So both sides are agreed that mercy is relevant and acceptable in sentencing. Death penalty opponents add the further claim that the state should not kill people unless it has to. The fact that life in prison (especially life in a decently run prison) sucks less than lethal injection is not especially relevant, just as it’s not especially relevant that lethal injection sucks less than getting dragged to death behind a truck. The relevant question is whether life in prison is a sufficient a) protection and b) punishment. On that, reasonable people can differ; but O’Sullivan doesn’t make the case, he just assumes it.

3) Life without parole is politically impossible. This may be O’Sullivan’s best argument; or it may not, I really can’t tell, since I don’t know enough about the political battles over life without parole in different areas of the United States. I’ve heard that Texas, for example, puts so many people on Death Row in part because its parole laws are wacky; but again, that’s hearsay, and certainly isn’t sure knowledge on my part. However, it might be worthwhile to try to fix parole laws, and if that does prove possible, then discuss capital punishment.

4) Capital punishment prevents murder–it deters. This I don’t doubt at all. What I would like to know, though, is whether a similar deterrence effect could be gained by criminal-justice reforms that don’t include the death penalty. Charles Murray’s excellent Losing Ground includes data on the rise in crime through the ’60s and ’70s. He noted that he didn’t correlate crime with the presence or absence of the death penalty; he looked at other information, like how likely you were to be arrested if you committed a crime, how likely you were to be charged if arrested, how likely you were to be convicted if charged, how much of your sentence you were likely to serve if convicted, and so on, and found that at every stage of the process a criminal became less and less likely to be punished at the start of the decades of rising crime. Those changes removed deterrents, leaving only one, last-ditch deterrent–the Chair. Why not put those deterrents back, and then see whether the deterrence case for capital punishment is as compelling? (The added advantage here is that we should put most of those deterrents back anyway.)

5) Nobody’s been wrongfully executed since the reinstatement of the death penalty in 1976. You know the saying about the Vatican and the sausage factory? The one about how once you’ve seen how it’s made (canon law, or sausage), you may not want to eat it? Well, I know a lot of lawyers (yes, Tushnet is a Jewish name, why do you ask?), and at least one of them has worked on a case that in her opinion ended with an innocent (or at least strong-possibility-of-innocence) man being sentenced to death. Maybe he’ll overturn his case on appeal. But maybe not. Once you’ve seen the ways that some people end up on Death Row, you’re less convinced that every wrongful conviction will eventually get overturned. Now, O’Sullivan may nonetheless be right, but that is in part because of the restrictions on who can and cannot be sentenced to death, which makes his next claim problematic.

6) 820 people are serving time for their second murder–committed either after they’d been released, or while they were in prison. If they’d been killed after their first murders, there would have been no second. This also is true. What I’ve never seen, though, when this fact is brought up, is an examination of how many of these double-killers actually faced the death penalty for their first murder. There’s a basic trade-off here: You can sentence all killers to death–and there are lots of murderers in the USA–and thereby make it much more likely, basically inevitable, that you will execute the innocent. (You’ll also incur even greater litigation costs, but that’s a side note.) Or you can sharply restrict the application of the death penalty, and end up with a) double-killers, and b) the terrible problem of deciding whose dead child was killed in a “horrible enough” fashion.

7) The argument that “civilized societies don’t execute” is lame. This, I agree with. That’s why I don’t make that argument. All I am saying is that we don’t need the death penalty to protect society or to punish wrongdoing.