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Capital Punishment

Introduction

Capital punishment is currently one of the most contentious issues in the United States. (The other is abortion.) There are some very good arguments, and also some very poor ones, on both sides.

First of all, the choice is between capital punishment and life imprisonment without parole as the ultimate criminal sanction. It is not between capital punishment and no punishment (at least, not in any serious discussion I've heard or read). This simple fact is often overlooked.

Even the most ardent advocates of capital punishment do not recommend it for minor crimes. However, most opponents of capital punishment are absolutists -- they oppose capital punishment in ALL cases, no matter how serious the crime.

Of course, these are not arguments, they are merely observations about what is being argued over.

Arguments Against Capital Punishment

Capital punishment is often said to be vengeful or barbaric or whatever. This is a very weak argument. Anyone who uses it must explain why life imprisonment is NOT vengeful or barbaric or whatever.

It has also been claimed that capital punishment is imposed capriciously, or that it is unfairly imposed more often on convicts that are black or poor or whatever. If this is the case, and even if it applies to capital punishment but not to life imprisonment, it is a flaw in the judicial process, not an objection to capital punishment as such. Nevertheless, it might be a valid reason for abolishing capital punishment, if the flaws are serious and cannot be corrected in any other way.

The commonest argument against capital punishment is a familiar one: Capital punishment, once imposed, cannot be rescinded if the executed person is later found to be innocent. Opponents of capital punishment presumably lie awake nights worrying about a convict that is found to have been innocent the day after his execution. This makes good fiction, but it happens so rarely in real life that it can probably be ignored.

A sentence of life imprisonment can rescinded, but only partially. The years of life lost to unjust imprisonment cannot be restored. And if the convict has already died from some other cause, life imprisonment is as impossible to rescind as capital punishment.

Opponents of capital punishment often point out how expensive capital cases are, with all the trials, appeals and other procedures that the law and the courts require, presumably to guard against the possibility of executing an innocent person. However, many of these procedures, such as the "penalty phase" of a trial, have nothing to do with the question of guilt or innocence. Their primary purpose seems to be to overcome the opposition of a determined minority, both inside and outside government, that opposes capital punishment for some other reason.

This leads directly to the best reason, in my opinion, for abolishing capital punishment, or at least limiting it to a very few of the most serious crimes. If the government can do its job of keeping crime to a tolerably low level, and do it at a reasonable cost, without resorting to capital punishment, it should do so, primarily to avoid offending the opponents of capital punishment. For obvious reasons, the opponents of capital punishment usually don't state the matter that way.

A surprising argument against capital punishment sometimes comes from unlikely sources. It is said that life imprisonment without parole should be the punishment for the worst crimes because it is actually a fate worse than death, especially a relatively quick, painless death at the hands of an executioner. This seems quite unlikely. With rare exceptions, defendants do everything they can to avoid capital punishment. The realization that a quick death might have been better, if it comes at all, usually comes years later when it cannot have any deterrent effect. And people who use this argument never recommend capital punishment as a lesser punishment for less serious offenses.

Arguments for Capital Punishment

Only capital punishment can guarantee that the convict won't commit more crimes. A convict serving a life sentence without parole may commit crimes in prison, or he may escape and commit crimes outside prison.

There also the possibility of release, even if there is never any doubt about the convict's guilt, if the government officials change their minds, if different officials come into power, or if the government makes a mistake. Preventing such releases is sometimes set forth as an argument for capital punishment, but in my opinion it is quite arrogant to second guess future officials in this way.

Capital punishment is much cheaper than supporting and guarding the convict for the rest of his life. As noted above, the DECISION to impose capital punishment can be very costly under current circumstances, but it is quite distinct from the punishment itself. And estimates of the cost of imprisonment are sometimes based on the entire prison population, which includes many non-lifers who are easier to guard because they have something to lose if they escape and are recaptured.

This argument would carry less weight if the cost of imprisonment could be reduced, perhaps by requiring prisoners to work without wages, or for wages less than the market price of their labor. This is now being done, but only to a very limited extent. If the cost could be made NEGATIVE, the case against capital punishment would probably be clinched. However, this does not seem feasible. Persons who have committed serious crimes usually do not make docile and productive slaves.

Once a convict has been sentenced to life imprisonment without the possibility of release, capital punishment is virtually the only punishment available if he commits another serious crime. Another life sentence would be equivalent to no punishment at all.

Capital punishment is said to have a greater deterrent effect than life imprisonment. This is probably the case, but it is a very weak argument because good evidence is very difficult to obtain. There are no statistics on crimes NOT committed. And no punishment can be effective unless it is actually imposed. What is the most common cause of death for persons CONVICTED in the United States of crimes that carry the death penalty? Hint: It's not capital punishment!

Although even absolute punishment does not deter absolutely, punishment always deters to some extent. People do not routinely park in no-parking zones, especially when the meter maid is tooling down the street. And for more serious crimes, some people survive murder attempts because their assailants, for fear of being caught and punished, flee the scene before delivering a coup de grace.

Philip J. Erdelsky
October 10, 2011