The Federalist Society

Debate Comments


[D. Michael Enfield]

I applaud the vigorous exchange regarding the death penalty. Particularly, I am impressed that the arguments of those opposed -- it costs too much, it is ineffective, there is risk of an innocent being executed, the costs of capital punishment could much better be deployed elsewhere for societal protection, capital punishment constitutes unjustified state killing, the death penalty is discriminatory toward blacks, life imprisonment is at least as much of a deterrent as capital punishment -- either do not address the fundamental question or they cannot be reconciled with the preponderance of evidence and logic.

Considering these failings in reverse order, Kent Scheidegger properly points to the testimony of Dr. Paul Rubin to the Senate Judiciary Committee. That testimony summarizes scholarly research into the question of whether or not the death penalty is a deterrent to capital crime. The inescapable conclusion is that it very much does. Any persistence in suggesting that it does not, or that life imprisonment is an equal or even superior deterrent, cannot be considered in the absence of countervailing and equally scholarly research.

Moreover, were no scholarly studies available either in support or opposition, the preponderance of logic and evidence presents an undeniable premise in support of capital punishment. Put another way, if there is no significant scholarly study available (which, as has been shown, there is), then one must reduce the question to an article of faith. Either you believe that capital punishment is the ultimate deterrent, or you do not. The uncomfortable reality for those who do not, however, is that logic and evidence do not support that faith.

At every other level of unwanted behavior – from a hand in the cookie jar or exceeding the speed limit, to cheating on your taxes or robbing a bank – it is the fear of the sanctions that acts as the predominant deterrent to said behavior. Logically, why would the death penalty be any different? The evidence we have certainly suggests that it is very much a deterrent. For all the attention that opponents focus on the state’s costs of capital punishment, where is the focus on the massive costs of those who desperately try to avoid a capital sentence when brought to the bar? Those defendants do not want to be killed. I understand that.

If there is one jurisdiction in the world that can be said to be virtually free of a drug problem, it is surely Singapore. Why? Well, how about this: if you are apprehended with drugs in Singapore, the state executes you. I get that too.

All the other arguments against the death penalty fail to respond to the fundamental question of whether or not society needs or should be allowed to enforce a death penalty, which is this: will one innocent life be spared if convicted murderers on death row are executed? If the answer to that is yes, then the other arguments against it simply dissolve. Let’s review them:

It costs too much? How much is that one innocent life worth? As Bill Otis rightly observes, that is a question for the taxpayers, not for the courts or the lawyers.

It is ineffective? Not in the face of its deterrent value, even if only one innocent life is spared. It is true that the random implementation of the death penalty weakens its effectiveness as a deterrent, but it does not eliminate it, as Dr. Rubin’s testimony satisfactorily sets forth.

There is risk of an innocent being executed? Of course there is. But society cannot insist on requiring motorists to stop at green lights, simply because there is the risk that someone might violate the red light. After reasonably exhaustive precautions have been taken, if the state judges that someone is guilty of a capital crime, then that person must be presumed guilty, and the sentence carried out.

The costs of capital punishment could much better be deployed elsewhere for societal protection? If so, it must follow that TWO or more innocent lives would be spared if we were to discontinue capital punishment, or that the cost is too high to justify. The first suggestion fails for lack of any scholarly support, and the second has been thus far asked and answered by the taxpayers.

Capital punishment constitutes unjustified state killing? How could the state possibly be justified in NOT killing a convicted murderer, if in so doing at least one innocent life would be spared? Or reverse it: how could the state justify sentencing an innocent person to die by refusing to employ the deterrent of capital punishment? Ernest Van den Haag of the New School for Social Research set forth this exact thesis over forty years ago.

The death penalty is discriminatory toward blacks? Without responding to the validity of that proposition, may I point out that its diction is flawed? It can only reasonably be averred that the manner of our enforcement of the death penalty is discriminatory toward blacks. If it were always and everywhere enforced properly, then exactly the same percentage of black capital felons would die as would white capital felons, hopefully 100% in both cases. If there is a disproportionately high number of black capital felons, that is not the fault of the death penalty. Properly enforced, the death penalty – like any penalty – is decidedly non-discriminatory.

Life imprisonment is at least as much of a deterrent as capital punishment? Asked and answered, and failing for lack of reasonable and scholarly research, such as exists in favor of the deterrent value of capital punishment.

Unless the opponents of capital punishment can present arguments that are rooted in scholarly research, logic, common sense and empirical evidence, their positions remain what they have always been: tedious rationalizations of their emotional difficulty with the concept of the state taking a human life. I cannot fathom why they do not have a far greater emotional difficulty with the state allowing other murderers to take innocent life, but that isn’t really relevant in a discussion of the non-emotional issues that must be addressed.


[Matthew]

The death penalty is a necessary evil. To take a life, one must sacrifice their own. When people commit murder or rape, they are ruining lives beyond repair, and so they must suffer the consequences. On which method to use... we should not care. Ethics should not have a role in "emptying" death row. Those we are about to kill did not pay attention to ethics when they commited such acts, so why should we? The needler, the chair, they loop, the chamber, the firing squad, none are humane but those we are using them on are not human. They have travelled their path for the human experience and it led them to somewhere dangerous. They should not be guaranteed any rights except a trial by jury and one year to appeal.

The Federalist Society