The Death Penalty

September 26, 2000

Does the death penalty deter crime? The New York Times reports that the twelve states that don’t have capital punishment have, on the whole, lower homicide rates than those that do. Texas, for example, has put 144 murderers to death under the current governor — fellow named Bush — yet has a murder rate more than three times as high as gentle Massachusetts, which has no death penalty.

Conclusion? One pundit draws the moral: “Capital punishment fails to deter.” That doesn’t follow. It may be that without the death penalty even more Texans would kill each other, and that with the death penalty even fewer Massachuters, or what ever you call them, would kill each other. We aren’t talking about laboratory conditions here. Many factors may make the difference.

Penalties deter. That’s why the government relies on them. If there were no penalty for failing to pay taxes, do you think revenues would remain where they are? The Internal Revenue Service is based on the assumption that fear is the best incentive for a taxpayer, and liberals don’t clamor for an end to its reign of terror: they like that part of government.

But is the death penalty different? Of course not. If you credibly tell someone to do as you say or you’ll kill him, he’ll do as you say. It works at convenience stores.

A few years ago the Washington Post reported that the “war on drugs” was hampered by the reluctance of witnesses to testify. Why? Because they were afraid of the death penalty, as administered by drug dealers. At least that death penalty deterred. Which didn’t stop the Post’s own columnists from insisting that the death penalty doesn’t work.

The difference is that when drug dealers target you, you don’t get a trial, a lawyer, and years of appeals, as you do when the government charges you with murder. There was a time when state and local governments meted out justice very swiftly. A murderer might be hanged within days of committing his crime, just as a witness today may be shot within hours of talking to the Feds.

You can’t compare swift retribution with what even Texas inflicts. The 144 killers executed under George W. Bush were probably a small fraction of the total number of killers in the state, and they had probably committed their murders many years before he took office. As murderers go, they were no doubt extremely vicious and very unlucky. They may have gotten justice, but it was neither certain nor swift, and in the end it probably came as a surprise. It’s unlikely that they expected to pay the ultimate price when they committed their crimes, some of which must have occurred during the early 1970s, when the U.S. Supreme Court had banned the death penalty. (It later changed its mind, allowing capital punishment under certain conditions.)

That’s the point. If a killer doesn’t expect to die for his crime, he may not be deterred, even if there is a death penalty on the books. He presumably knows the odds. But if he felt it was very likely that he would be arrested and swiftly put to death, he might think twice.

Opponents of the death penalty usually dodge the most basic question: Does a murderer deserve to die? It’s no use calling the death penalty barbaric, unfair, arbitrary, or uncertain until you’ve faced the issue of simple justice. And most opponents don’t want to talk about it. This makes their arguments merely sentimental.

My own view is that, other things being equal, a murderer richly deserves to die. But you can say that and still believe that the state shouldn’t execute him. The state has amply proved, over the centuries (and especially the twentieth century), that it can’t be trusted with life-and-death power over anyone. It can’t be trusted with other powers either: the power to draft soldiers, the power to tax, the power to control the currency. It has abused every power ever entrusted to it, and some of the men whose faces adorn our money deserved the gallows.

The modern state is itself a criminal enterprise. And though the death penalty is intrinsically just and does deter, we don’t want justice enforced by criminals.

Joseph Sobran

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