* Re: Death Penalty
Topics: Crime
13 Mar 1995
From: "DG Ervan Darnell"
Stephen Patterson wrote:
> [ Story of an apparently senseless murder at the scene of traffic accident ]
>Are we agreed that we need swift and certain death for these creeps, who
>have no more regard for human life than this?
No. Had the victim been armed and killed the perp on the spot in (clear)
self-defense, I would say justice had been served. Similarly, I don't think
the Eigth Amendment's injunction against "cruel and unusual" punishment
prohibits the death penalty. So, you won't hear any bleeding heart
sentiments from me.
However, wanting to apply the death penalty jumps over a couple of other
issues that are necessarily involved. The first is the sticky matter of
just what the criminal justice system is supposed to achieve. You suggest,
>if some bleeding heart wants to rehabilitate this guy
As a practical matter, rehabilitation seems to be a failure. The advocates
of rehabilitation also fail to address the adverse impact it might have on
deterrance, which is an important (if the not the only) aspect of the penal
system. How much of an impact it has is a matter to be determined
empirically, but always overlooked in such schemes. So, I agree with you here.
>This scum bag deserves to die, and not nicely.
This sentiment is more problematic. "Deserves" is a loaded word here.
Victims deserve restitution, no doubt. The criminal justice system should
make perps pay restitution where possible. That is not possible in this case.
What is left is exacting vengeance, and that's what I hear you pining for in
the above. I don't agree that's a legitimate function of the criminal
justice system. It should strive to keep the crime rate as low as possible
and not strive to massage the emotional states of victims at the cost of
doing the wrong thing. By what standard is the victim owed emotional
satisfaction? Is there any consistent ground for arguing the perp owes that
satisfaction to the victim but the perp's mother does then not also deserve
retribution on the witnesses who condemned her son? I mean this as a
serious question because retribution leaves the realm of particular harm,
and thus particular guilt, and says merely that you have a 'right' to
certain kinds of happiness. Neither guilt nor innocence affect that
argument. Just saying 'the victim deserves the chance to exact retribution
but other aggrieved parties do not' seems rather ad hoc.
So, that leaves the matter of whether the death penalty serves to create
additional deterrance in a cost effective manner. I submit that the matter
of how much deterrance it creates is an open question, in part because the
additional amount, if any, is so small that it is buried in the noise in the
data. The direct amount saved by lowering prison-years is more than sucked
up in legal expenses to jump through all of the appeals hoops and thus no
hard $$$ savings is realized (this is definitely accurate as of five years
ago, but may be turning around now).
However, there is an important, abstract cost which needs to be considered:
the change in law enforcement behavior the possibility of the death penalty
creates.
To say that first and second degree murderers should receive the death
penalty assumes that it is obvious who the guilty person is. In the current
system, it is obvious who such persons are with only the rarest of error,
but granting the power more broadly may destroy that relation. Allowing the
death penalty gives the government the power to decide who should die, after
being filtered by a jury. Though the U.S. has been reasonably free of
abuse, most other governments have used the death penalty capriciously for
the purpose of silencing political opponents. Once a government has that
power, it will start finding ways to focus prosecution on particular people,
if not engage in outright 'frames' and entrapment. For instance, with the
death penalty for drug kingpins, it becomes a simple matter to plant a pound
of cocaine (which is automatically "trafficking", if not "kingpin", status
regardless of any other actions) in order to execute any inconvenient
person. For my part, I would rather deny the government that tool entirely
and suffer the minimal effects it might have on the crime rate.
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