Who Can Really Say?

Tookie Williams is dead. Captain Ed is a prominent conservative blogger, but opposes the death penalty.

Again, I oppose the death penalty, primarily on two grounds: religious and practicality. I don't think the state should take a life unless the person represents a present threat to the safety and security of the public, or a threat to the national security of the US or our allies. I also don't think that the death penalty saves us any money, and needlessly clogs our appellate courts with frivolous motions and delaying tactics. When we have the person locked up, he should stay locked up -- and I mean locked up for good, and none of the Club Fed treatment, either. Three hots and a cot, and anything else depends on how well the prisoner behaves. That to me settles the entire case in a relatively expeditious manner without having twenty years of legal motions keeping the case alive.

He received a lot of feedback from his post, including an email from a CA prosecutor, which he published in full, and which I excerpt:

A few examples to make my point: Suppose we have a career criminal with a long record of violent felonies, what we in California would call a "three-striker", who knows that he will be sent to prison for the rest of his life if he is ever caught committing a new offense. When he goes to rob the local convenience store, he doesn't want to hurt anyone - he just wants the money. But he also knows that, as there is no death penalty, he will face the exact same punishment (life imprisonment) whether or not he kills the clerk, the only witness to his crime. He would be a fool not to do so. If he happens to bump into a police officer on the way out, he may as well kill him too - there is no extra charge, so to speak.

If we somehow manage to catch the "three-striker" and place him on trial, it will be in his best interest to sabatoge his own trial by killling witnesses, jurors, prosecutors or judges. After all, if we can't convict him, he goes free. (Remember that scene from the movie Traffic, where the druglord walks?) And even if we manage to successfully prosecute him for one of these new murders, he will still only face the same life sentence that he was sure to get in the first place.

If we do manage to put a murderer like Tookie away for life, he can then kill anyone he wants to - inside or out of prison - with complete impunity. What are we going to do to him - give him two life terms? In California, we presently have something like 30,000 inmates serving life terms (29,999 as of 12:01 AM!) Most of them have little or no prospect of ever being paroled. I would not like to be there on the day that they are told that they have been given a license to kill.

Captain Ed further quotes a quote from a Brookings study:

Support for capital punishment is, of course, usually associated with the political right. But the lead author of a new paper making what might be termed the "big government" case for the death penalty is the noted liberal scholar Cass Sunstein. The paper draws in part on a study conducted at Emory University, which found a direct association between the reauthorization of the death penalty, in 1977, and reduced homicide rates. The Emory researchers' "conservative estimate" was that on average, every execution deters eighteen murders. Sunstein and his co-author argue that this calculus makes the death penalty not just morally licit but morally required. A government that fails to make use of it, they write, is effectively condemning large numbers of its citizens to death?a sin of omission like failing to protect the environment or to provide adequate health care. "If each execution is saving many lives," they conclude, "the harms of capital punishment would have to be very great to justify its abolition, far greater than most critics have heretofore alleged."

As for me, I think these death penalty arguments are strikingly similar at times to arguments about whether the FDA should consider a drug "safe". Whether it's good policy to release a drug into the market depends, among other things, upon the size of the good the drug might do against the size of it's adverse reactions, including serious ones. We manage that with warnings, my current favorite being that you should see a doctor if you're taking Cialis and your erection lasts more than 4 hours. But I digress.

How much good is done by the death penalty? Eighteen lives saved for each executed? Although I haven't seen the study, that argument strikes me as very strange. If it were true, then we could eliminate all capital murders by executing every 19th murderer, and after a while we'd have no murders. That may well be a very unfair interpretation, but that's what I get based upon the summary.

Rather, it's my understanding that studies have demonstrated the death penalty does not deter murders. I assume those studies control for various factors including comparing murders in jurisdictions without the death penalty with jurisidictions that have it. The CA prosecutor suggests 30,000 convicts will start killing not only themselves but other convicts too if the law is changed. Well maybe, I guess. I see the incentive point and all.

But regardless, it's hard to conclude the death penalty is more than problematic at best. When it's applied in the right case it satisfies our sense of justice. It's the "right case" bit that we'll never stop arguing or worrying about.

[Linked to the Beltway Traffic Jam.]