Three of the major emerging themes in the anti-death penalty movement are arbitrariness, expense and delay. The first and third of these are, as I understand it, the principal arguments in the district court's opinion in Jones v. Chappell, about which Kent has written extensively.
I am not in this post going to attempt any extended analysis of these themes; instead, I'm going to do the really, really short take on the first* -- the claim (see, e.g., here) that the death penalty is carried out so infrequently that in has become arbitrary in the constitutional or morally disabling sense.
*In later posts I'll take on the other two.
As happens so often, abolitionist vocabulary needs a translation. "Arbitrariness" is the word now indignantly applied to a concept abolitionists have been pushing forever, namely, that if we are to have a death penalty, it should be applied only very sparingly, to the "worst of the worst."
Well, sure. The actual goal all along has simply been to reduce the number of executions to a point so low that any can be labelled "arbitrary," but to do this under the appealing, if intentionally vague, banner of "reserving the harshest punishment for the most appalling killers."
Over the last several years, there have been roughly 15,000 murders annually but only about 40 (or slightly more) executions per year. Having acceded to abolitionist demands to be extremely selective about who gets executed, we now find ourselves accused of being, for want of a better word, flippant about it -- indeed so flippant that we are morally disabled, and should be legally disabled, from executing anyone at all.
One thing to say about this argument is that it's just odd. At no point has the United States ever executed more than a tiny fraction of one percent of its murderers. The death penalty is no more "arbitrary" today than it was for the entire generation after it was reinstated in 1976 in Gregg. Indeed, it is much less "arbitrary." The average number of persons executed per year today is 50% higher than it was in that generation. Check out the numbers for yourself.
Another thing to say is that the "arbitrariness" argument is reminiscent, in its slyness, of another abolitionist campaign: The now hustled-to-the-attic campaign to replace the electric chair and the gas chamber with (what they were telling us then) was the more humane alternative of lethal injection. Only it turns out that, so far as execution methods are concerned, death penalty skeptics find as many or more things wrong with what they urged the country to do as with what they condemned it for doing before.
Same deal with their take on "arbitrariness" and its conceptual sidekick, their "worst of the worst" argument. There is of course no way to tell whether a quick murder spree with several victims, as in the Dunlap case I discussed earlier today, is "worse" than the slow sex/torture/murder of a child, or murder for hire as a regular business, or terrorist murder (as in the Boston Marathon bombing), or what have you. Thus the demand that we execute (and thus, a fortiori, have a sensible way of defining) only "the worst of the worst" turns out to be a shell game.
Not that it was ever anything but a shell game. Abolitionists may be wrong, but they're not stupid, and they can count on the mainstream media never to point out that the shells are moving.
But even that is not the main point.
Our legal system understands that it will produce at least two things in addition to justice: Mercy and (occasionally) error. There is simply no way to measure mercy, and it is certain sometimes to result in lesser sentences than can strictly be justified on the merits -- but would any normal person want a system that doesn't permit it? The upshot is that the law in any liberal democracy will have "arbitrariness," if one wants to call it that, borne of the ineffable quality of mercy. But that is hardly a reason to think that capital punishment is wrong, much less unconstitutional; mercy is the humane wildcard our system has always included as a check on itself. Understood for the role it was always intended to play, the availability of mercy is a reason to have more confidence in the death penalty, not less.
And there is error, too. Sometimes prosecutors -- under political pressure, or the perceived need to obtain information from the killer, or simply out of misjudgment -- will decline to seek, or will bargain away, the death penalty. Sometimes the jury will bring in an erroneous acquittal. Sometimes the case will simply go unsolved, effectively freeing the killer from any punishment at all. But the fact that we sometimes stumble into windfalls for killers scarcely means that we should intentionally do so every single time. In a world where error in one direction or the other is inevitable, the question for fairness purposes is not whether some people who deserve the death penalty escape it. The question is whether those who get it have earned it. When they have, as happens hundreds of times in case after case after gruesome case, the fact others also guilty sometimes escape is no more a reason to abolish capital punishment than, as noted, the fact that mercy, though indispensable, is irrational.