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Arbitrariness, Expense and Delay

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.


Does the 15,000 represent murder convictions or actual murders?

Actual murders. I read somewhere that there are 9,000 murder convictions annually, and that sounds plausible, but I can't vouch for it.

I doubt that, for purposes of answering the arbitrariness argument, it makes any difference whether we're talking about 9,000 or 15,000. Forty executions is .0044 of 9,000 convictions, and .0026 of 15,000 murders.

At this point, we on head-of-a-pin territory. If one is inclined toward this way of thinking, a percentage as tiny as .0044 is no less subject to the charge of arbitrariness than .0026. Both are microscopic. So I'm perfectly content to rest on the two points in the text, to wit (1) at no point has the United States ever executed more than a fraction of one percent of its murderers; and (2) the average number of persons executed per year today is 50% higher than it was in the generation following Gregg -- Gregg being the case that rejected Furman's idea that imposition of the death penalty was too rare and "freakish" to be considered anything but arbitrary.

Bottom line: "Arbitrary" is just the abolitionist word for "highly selective," a concept upon which they have (rightly) insisted for decades.

I agree that whether you measure it by convictions or actual murders, it is not an indicia of arbitrary-ness. I was just curious.

I am not sure if there are any common elwments to those who are sentenced to death (bbesides being convicted of a capital crime). Given that the jury makes the call, there is going to be variation on who is sentenced to death and whether it is only for the "worst of the worst" depends on how you define "worst". If that is arbitrary, then so be it - or phrased perhaps another way if one commits a capital crime he really can't complain if he is sentenced to death because easier way to not get sentenced to death is to not commit capital crimes.

As to prosecutorial discretion is seeking the death penalty, I can sort of see a legitimate gripe if in fact prosecutors were seeking the death penalty against certain types of defendants but not others. I doubt this is the case.

Personally, I would like to see prosecutors seek the death penalty more often and at the end of the day let the jury sort it out. I know that is unrealistic from a resource perspective but I think it would be the best way to quash any lingering arbitrary arguments

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