October 23, 2003 | Commentary on Crime
In October 2002, hundreds of thousands of Washington, D.C.-area residents lived in constant fear of being murdered by mysterious snipers. Eventually, John Allen Muhammad and Lee Malvo were arrested and charged with 21 cold-blooded, premeditated attacks that killed 14 people across the country-- 10 of them in the D.C. area alone - and seriously wounded several others. Among the victims:
Malvo and Muhammad allegedly hunted humans like deer, using a high-powered rifle, tripod and scope to drop their prey by shooting through a hole they had drilled in the trunk of their car. Their trials are set to begin this fall. In jail, young Malvo reportedly has boasted of his feat and laughed about the people he'd executed in cold blood.
The question is, do he and Muhammad deserve a similar fate if convicted?
Some opponents of the death penalty, including many Europeans and other critics of the U.S., say no. They insist that in this day and age, the death penalty is a relic of the past, a barbaric instinct for vengeance no better than the crime it purports to punish.
But such sentiments, however heartfelt, ignore the horrific nature of some criminal deeds. And to do that is, in many senses, to devalue human life itself, for it denies the value of the life of the innocent victim and exalts that of the murderer.
We can see this tendency every time death-penalty opponents object to anyone highlighting the victims. According to opponents, the guilt of their murderers, not the fact that their victims were 'good' people, is the central legal issue. But that is precisely backwards. The "legal issues" are not an end in themselves; they are not what moral philosophers would call an "inherent good." Rather, the legal system is a means to an end -- namely, discovering the truth and doing justice. Death-penalty opponents can argue for abolition only by elevating the "system" and devaluing the victim - and calls to ignore the victims show this unfortunate moral calculus at work.
Simply put, there is a class of people whose crimes are so heinous, like Malvo and Muhammad, that the death penalty should apply. For those who oppose the death penalty the ultimate thought experiment is: "What would you do with Adolf Hitler?" Anyone who can answer that the principle of non-retribution requires society to permit Hitler to live demonstrates remarkably little regard for any moral calculus that reflects a serious consideration of what it means to be just.
Safeguarding the Innocent
The death penalty is tough on criminals, yes. But any lesser punishment is tougher on innocent people. And as a matter of moral justice, do Muhammad and Malvo deserve anything less than execution? Killing should in aggravated cases carry consequences equal to the gravity of the harm caused. People may be free to choose their actions, but in a civilized society, they certainly ought not to be free to choose the consequences of those actions. On the contrary, only a barbaric society would permit such behavior to be weakly punished.
Do innocent people ever get caught in the crosshairs of justice? Not as often as death-penalty opponents would have us believe. According to Dudley Sharp, from Justice For All, a nonprofit organization that works on criminal justice reform, "somewhere between 15 and 30 death row inmates have been released from death row with credible evidence of actual innocence. That represents about a 0.3-percent error rate of the 7,300 sentenced to death since 1973." None of these people were executed before their names were cleared. Those who say otherwise - who think that the error rate is higher -- often confuse two types of error. Some cases are reversed because of a legal error about, for example the admissibility of certain evidence. But reversals of this sort are not indicative of the execution of innocents. With respect to that issue - factual errors resulting in the execution of an actually innocent defendant - no case has been identified since the US re-instituted the death penalty in 1973.
Thus, though the risk of error is certainly real, the likelihood of it happening is sufficiently small that we ought not let that small risk that innocents might die prevent us from taking action that would save other innocents.
For that, precisely, is what the death penalty does. It is a deterrent that dissuades people from killing. Indeed, it would be illogical to assume that, as a group, murderers are ignorant of the negative consequences their act could bring. And so it would be equally illogical to assume that some potential murderers are not deterred by the threat of a more severe punishment - namely, execution. Evidence substantiating the deterrent effect of the death penalty is stronger than that against it and supports this intuition. As long ago as 1975 economist Isaac Ehrlich published a study concluding that each additional execution deters seven or eight murders. More recently, three economists from Emory University conducted a study using multiple regression analysis to isolate the deterrent effects of a death penalty from other factors affecting murder rates. They calculated a deterrence rate of between eight and 28 murders for each execution. Given the overwhelming evidence that criminals do respond to the potential of negative consequences, reason supports the conclusion that executions do deter and that they deter more than lesser punishments do. And what that means is simple - without a death penalty you condemn innocents to death at the hands of murderers.
Opponents of the death penalty claim a life sentence is just as harsh a punishment and effective a deterrent as a death sentence for murderers. Not so. Some life sentences come with the possibility of parole. And all sentences short of capital punishment involve the risk that a convicted murderer will escape and prey upon other victims. Furthermore, those who are locked up for life without any possibility of parole have no incentive to refrain from killing fellow inmates and guards. (If they can't possibly be punished any more severely than they already have been, nothing deters them from turning their aggression on others confined with them.) Other convicts sent to prison to serve out sentences, and not to die should not be subject to the "death penalty" at the hands of fellow inmates who have no reason to behave.
Besides complaining about the unfair nature of the death penalty, American critics also say it isolates us from other countries who oppose it. Despite the overwhelming support for the death penalty among the American public, our continued insistence on it has become a bone of contention with many of our allies, particularly those from Europe, who see it as an antiquated, inhumane policy.
It is true that virtually all European nations have abolished the death penalty. The United Nations Commission on Human Rights has, several times over the last few years, drafted resolutions asking nations to impose a moratorium on the death penalty. Many nations around the world already refuse to extradite any criminals to the U.S. that might face the death penalty. Some international organizations are even getting involved in U.S. capital punishment cases by filing legal arguments in support of the defendants.
But should we care that some countries object to the death penalty and thus are turning up the pressure on the U.S. to abandon the practice? No. European views shouldn't control American law.
To begin with, yielding to such criticism would require a significant reversal in the course of American history. From the time of our nation's founding, Americans have recognized that the concept of "just deserts" allows for the ultimate punishment of those whose malevolence demands it.
More fundamentally, we long ago rejected the premise that American thought should be bound by European, or international, convention. (After all, that is why we had a revolution.) Rather, the European view should control only to the extent it has the power to persuade.
And on that score, the abolitionist view fails. Consistent with our expectations and our conceptions of deterrence, the rates of violent crime in the United Kingdom and on the Continent are rising - up 20% in England; 37% in Italy and 31% in France in the second half of the 1990s. Homicides in England, for example, rose from 725 in 1991 to 1048 in 2002. At precisely the same time, according the Bureau of Justice Statistics, the rates of violent crime fell 36% in America, while homicide rates dropped by more than half. Can the divergence be wholly attributed to respective attitudes to the death penalty? Probably not. But we are entitled to ask Europeans who oppose capital punishment to offer an alternative explanation.
Why does the European Union reject the notion of requiring a murderer to give his life as penance for his crime? At the heart of their outrage are, they claim, civil rights concerns. They say that every human being has a fundamental right to life. True. But the European Union and its abolitionist allies never turn the challenge around and ask: What of the right to life of the murdered? The rights of the victims and their families? If we refuse to punish those who kill, then where do those pained by their crimes turn for justice? More prosaically, though execution is physically identical to murder, it is both morally and legally distinct - a distinction that the abolitionist view simply ignores.
Finally, there lies behind this question a buried issue of national sovereignty. Simply stated, it has never been a tradition within the U.S. to submit to the whims of international bodies that, for the most part, are not bound to respect American sovereign concerns. Though their views may, at times, be persuasive, we cannot be bound by them, lest, for example, we find ourselves responding to criticisms of our policies from a U.N. Human Rights Commission whose current chair is a Libyan dictator.
Rather, we must agree to respectfully disagree with other countries on the death penalty. We can discuss the issues with them, but when they seek to thwart the laws that govern our people, they engage in the very sort of cultural imperialism they normally accuse us of. They don't want us to tell them what to do in their countries to their criminals, yet they feel comfortable (with an air of supercilious moral superiority) advising us what to do with ours.
Death is different - it requires different legal mechanisms and a different moral calculus. For this reason we must be cautious in imposing it and America has developed a complex (some would say too complex) series of mechanisms to insure accuracy. But caution does not require inaction. Those outside America who oppose capital punishment urge, in effect, moral equivalency between murderer and victim. Worse yet, if our concept of deterrence is anywhere close to accurate, they condemn countless unnamed and never-to-be-identified victims to acts of violence that might have been deterred.
Or, to return to where we began: the argument for the death penalty can be restated in two words: Lee Malvo.
And if you need two more, think of victim Linda Franklin.
Paul Rosenzweig is a senior legal research fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and adjunct professor of law at George Mason University.
Published in Foreign Service Journal (October 2003).