by Barry Latzer
Professor, John Jay College of Criminal Justice
David McCord’s Afterword in Judicature (March-April 2006) contends that capital punishment is akin to consumer fraud. These are the same old anti-death penalty arguments in new guise.
Consider first his claim that the death penalty “does not work to sentence only the guilty to death” because “over 20 demonstrably innocent persons . . . have been sentenced to death in the post-Furman era.” In the first place, the death penalty has nothing to do with the wrongful convictions. These 20 (I will assume McCord’s number is accurate) also would have been wrongly convicted if they had been given life sentences. Does McCord think that capital trials, which, as a rule, are far more scrupulously conducted than noncapital proceedings, are less reliable for guilt determination? I’d be interested to hear his arguments on this point.
Second, again assuming that there were 20 miscarriages of justice, isn’t the “does not work” conclusion premature without looking at the failure-to-success ratio? According to the recent Bureau of Justice Statistics count, there were 7,187 death sentences from 1977 to 2004. With 20 wrongful sentences, the failure ratio is .003 (20/7187). Does Professor McCord know of any other product – criminal justice or otherwise – with that low a failure rate?
Let’s turn to his claim that the death penalty is flawed because most of those who are sentenced to death will not actually be executed. This is true. But what is the reason? Might it have something to do with endless judicial delays caused by such pointless redundancies as federal habeas corpus? Surely McCord is not saying that the system is as efficient as it could be, or that no capital punishment scheme could conduct a fair-minded review of sentences in under 11 years, the current average. But if McCord agrees that the capital punishment system can be made more efficient and still be fair, then he should not blame the sentence for the failure to properly implement it.
His third argument is that capital punishment is undermining public confidence in the criminal justice system generally. First of all, this argument is a bit dated. The big drop in crime has knocked public concerns about criminal justice right off the worry list. But to the extent that public dissatisfaction remains, it doesn’t support a more lenient system. If anything, the public’s unhappiness reflects a perceived failure to sentence harshly enough. The average guy isn’t disgruntled because we have a death penalty, he’s frustrated because thinks that we have a phony death penalty, a law on the books that too rarely gets enforced. The latest Gallup Poll (May 8-11, 2006) bears this out. When asked whether the death penalty was imposed “too often, about the right amount, or not often enough?,” only 21% of the respondents said “too often.” 51% said “not often enough.” That view supports not a recall of the death penalty “product,” but rather, a ramped-up use.
Last, we turn to McCord’s claim that many of the worst murderers are spared. I will accept for the sake of argument his little study of the 2004 murder cases and his claims about the relative reprehensibility of the various crimes.
In the first place, I am surprised that McCord would find any reduced use of the death penalty troublesome. As for the maldistribution issue, in previous writings he said that the failure to impose the death penalty on all equally blameworthy murderers (what he called “underinclusion”) simply was not a major concern.* He recognized that prosecutors frequently spare defendants for reasons having nothing to do with blameworthiness, e.g., unpersuasive witnesses, weak forensic evidence, local hostility to the death penalty, a desire to trade leniency for testimony against another criminal, etc. McCord didn’t think that this was improper. In fact, he thought that underinclusion should not even be a consideration when evaluating death penalty jurisprudence.
It is interesting that nearly ¾ of the spared murderers (323/443 = .73) in McCord’s 2004 study were saved by prosecutors, not juries. He should tell us why they were spared, and whether or not he thinks the refusal to seek the death penalty was justified.
In a perfect world, of course, each would get his due, and proof problems wouldn’t matter. In the real world, where underinclusiveness abounds, evenhandedness in the distribution of punishments – all punishments – remains a worthy but elusive goal. But the lack of equal justice, as the late Ernest van den Haag called it, is not a shortcoming of the death penalty. Nor is it more of a problem because the punishment is death. It is a dilemma for the entire criminal justice system, one which can be reduced, but never eliminated.
But if one is especially concerned to reduce the lack of evenhandedness in the distribution of capital punishments, the solution is not elimination of the punishment altogether. Uneven distribution is most obviously resolved by more even distribution. It follows, therefore, that we should develop policies that encourage the application of the death penalty to more of the heinous murderers.
Professor McCord hasn’t made a good case for “recall,” but he has, unwittingly, offered good reasons to improve and increase the application of capital punishment.