George Will has a column in today's Washington Post titled, "Capital Punishment's Slow Death." In it, Will makes three arguments against the death penalty. All of them are wrong.
Here's how he puts it:
The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism.
Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence....
Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay.
Let's start from the beginning.
1. Will, often and astutely a fan of history, tells us that, by imposing the death penalty, democratic government is asserting "majesty" and "infallibility." It is asserting neither.
George Washington -- known for, among many other things, turning down majesty -- not only supported but used capital punishment, as did Lincoln and FDR. It remains on the books today, as it has for all but four years of our distinctly non-regal history, not because Americans think the government is majestic, but because the people themselves overwhelmingly support it. According to Gallup, 60% or more of the public has supported the death penalty for 40 straight years.
And no one takes the government to be infallible. No one thought it infallible (merely plainly in the right) when the government declared wars, including WWII, that killed exponentially more people, and exponentially more innocent people, than the death penalty ever has. We fought, knowing in advance that thousands would die -- many of them adventitiously or from sheer stupidity or mistake -- because the nation judged it worth the candle.
That is the test Will misses. The question is not whether X government program is infallible. The question is whether, knowing that it (and all other fallibility) cannot be escaped, the risk of error is so small and the reward to justice so large (as with Tsarnaev and McVeigh) that the benefits are worth the risks.
2. Much of this answers Will's next objection -- that if we execute an innocent man, the error is irretrievable. That is true, of course, but if (for example) we continue to travel by train, innocent people are certain to die, as they did two weeks ago, and just as irretrievably.
No one suggests, however, that we give up train travel, although it unlike justice is merely a convenience. What they suggest is that we do what we can to make it safer. They propose this although the improvements are likely to cost a lot of money and still won't make it infallibly safe.
It is a central part of their thinking that conservatives understand that, in public policy, everything is a matter of balance -- balancing costs, benefits, and trade-off's. Surprisingly, Will seems to miss this entirely, and thus seems to take the possibility of executing an innocent person as an absolute barrier to capital punishment, rather than merely an extremely serious cost.
Finally, Will points to not a single execution of an innocent person in the last fifty years. That's because, so far as any neutral authority had been able to determine with any degree of assurance, there has been none. That does not make the risk of executing an innocent disappear, but it does make it vanishingly small.
3. The deterrent value of the death penalty is much debated; the majority of (but not all) studies say that it does have deterrent value, although (as Will correctly points out) not as much as it would if imposed more frequently.
But to say that it would have more deterrent value if imposed more often is an odd argument that it should not be imposed at all. It also simply walks past the two more frequently cited reasons in its favor: That, for some especially grotesque murders, it's the only punishment that fits the crime; and that it's the only certain means of incapacitating the killer.
Will does not discuss, for example, what we are to do with a psychopath who kills once, is given a life term in prison, then kills a guard in an escape attempt (or a prisoner from a rival gang, or some weaker inmate who refuses sexual favors). Just as there is no infallible judicial process, there is no infallible prison security. What is the just punishment in such a case? Loss of canteen privileges?
Finally, Will says that the considerable expense and delay of capital punishment "are here to stay."
How does he know that? Fifty years ago, we were told, by people who think as Will does now, that (then) growing national opposition to the death penalty itself was "here to stay." And they were right -- for about a decade, after which, once past its brief flirtation with abolition, and not caring for the results, the country re-instated capital punishment and has since executed roughly 1400 grisly killers.
As the thinking man's conservative, Will should know better than to make breezy statements about what is "here to stay." He should also know that the way to make capital punishment less expensive and time-consuming is not to abolish it, but to place sensible limits on its currently grossly indisciplined costs and delay. A civilized society should spend what it takes to make certain we have the right guy, but should do much more than we have (and could) to shrink manufactured procedural delays far removed from the determination of guilt or innocence.
**********************
Will ends his essay by citing Earl Warren and Albert Camus for the point that "evolving standards of decency" would never tolerate the "spectacle" of executions. Is that true? Wasn't it precisely evolving standards of decency that tolerated -- indeed demanded -- the executions of Nazi war criminals? Will never tells us.
He can have Earl Warren and Camus. I'll take Washington and Lincoln.
Bill,
As usual, you make a persuasive argument. And do a good job of refuting Will's logic.
But what do you make of the attempt in conservative Nebraska to abolish the DP?
Do the majority of Nebraskans favor the DP? And, if so, why would so many GOP legislators be in the anti-DP camp?
Could it be that Will's opinion is resonating among many anti-big government conservatives?
If red Nebraska, could (very) blue California be far behind?
paul --
I think the results of Kent and Prof. Blecker's debate have a lot to tell us here.
The great majority of Americans, and certainly the majority of Nebraskans, favor the DP. The abolition bill in my view results principally from three things: complacency, inertia and misinformation (sometimes known as "lying").
The murder rate is low, so people are complacent. There have been only three executions in Nebraska in the last 50 years, so it's really just a ratification of inertia. And abolitionists don't tell the truth -- when Kent and Prof. Blecker were there to correct this in their Intelligence Squared debate, those with an open mind came over to our side by almost five-to-one.
The DP has zip to do with big government. It existed at the Founding, when the government was as small as it's ever been in this country.
Justice hardly requires big government. It requires clear thinking and determination.
George Will has an ally. And there is another argument for you to dismantle.
http://www.time.com/3890975/kareem-abdul-jabbar-abolish-the-death-penalty/
paul --
Kareem had a great sky hook (although Wilt was the better player overall), but George Will speaks to the audience I am most interested in.
Probably the best written-down debate that covers the ground on the death penalty is the one where Kent and I squared off against Prof. David Dow and ACLU star Natasha Minsker. It's here: https://www.fed-soc.org/publications/detail/death-penalty
As you did with Will, I am going to answer your arguments starting from the top.
1) George Washington -- known for, among many other things, turning down majesty -- not only supported but used capital punishment, as did Lincoln and FDR.
George Washington also owned slaves. I hope that your not suggesting re-instituting slavery based on George Washington having owned slaves is a valid argument.
Society evolves and moral perceptions change over time, there are many practices and customs which were abolished that we would never dream of bringing back; slavery being one of them.
2) That is the test Will misses. The question is not whether X government program is infallible. The question is whether, knowing that it (and all other fallibility) cannot be escaped, the risk of error is so small and the reward to justice so large (as with Tsarnaev and McVeigh) that the benefits are worth the risks.
How about we ask any of the 153 people that have been sentenced to death since 1971 only to have their (conviction vacated / charges dismissed / exonerated through DNA testing) how they feel about the risk of error vs. the reward of justice.
We could try to gain some insight from Cameron Willingham's experiences with capital punishment, but that would be a little difficult since he was executed for a crime that many people don't believe he committed.
http://camerontoddwillingham.com/
Just google his name, there is plenty of material posted on the internet.
That begs the question, how many wrongful executions or exoneration's does it take? How many should society tolerate before capital punishment becomes unacceptable?
3) Much of this answers Will's next objection -- that if we execute an innocent man, the error is irretrievable. That is true, of course, but if (for example) we continue to travel by train, innocent people are certain to die, as they did two weeks ago, and just as irretrievably.
This is an incredibly weak analogy.
First and foremost, people aren't forced to ride a train. Like any other form of mass transportation, the choice to embark is strictly voluntary (except in the case of prisoner transportation). As we all know, executions are anything but voluntary. People don't line up of their own accord to buy a ticket for a lethal injection.
4) It is a central part of their thinking that conservatives understand that, in public policy, everything is a matter of balance -- balancing costs, benefits, and trade-off's. Surprisingly, Will seems to miss this entirely, and thus seems to take the possibility of executing an innocent person as an absolute barrier to capital punishment, rather than merely an extremely serious cost.
I would take this statement much more seriously if you or someone you loved has actually had to sit in a courtroom facing an opponent:
1) with virtually unlimited resources.
2) with the ability to make deals for testimony against you (truthful or otherwise).
3) with the ability to cherry pick only jurors favoring capital punishment.
4) that will be granted absolute immunity from civil and criminal liability for any actions taken in the courtroom even in the event of gross malfeasance.
Innocence should be an absolute barrier to capital punishment.
According to you, being placed in an environment for the rest of your natural life where you risk being forcefully raped (or killed for your resistance) by a stronger inmate isn't quite punishment enough. The state should also have the power to kill you, innocence be damned.
Lastly, people always seem to ignore the other side of the capital punishment coin. Its not just about the potentially innocent person being put to death, but what happens to the guilty person that will never be brought to justice once the death sentence is carried out?
Mr. Otis,
I appreciate your commentary and think it's a good, if arguable, counterpoint to Will's column.
Where I take issue with this post the most is your assertion that the U.S. has never executed an innocent man.
First, there is no reason at all to believe that, and it flies in the face of logic, given the large number of undisputed exonerations of persons on death row. Moreover, it is almost certain that the U.S. has executed many innocent people in the past, given that many evidentiary pillars and forensic practices have been undermined scientifically as knowledge has advanced and that DNA has only recently been a well-developed input to verdicts and post-verdict proceedings.
Second, it seems doubtful there is any quantum of proof that would be sufficient for death penalty supporters to give up that talismanic assertion. You hint as much in your "neutral authority" qualifier (which is misdirection given that there is no neutral authority examining the issue and that anyone who is examining the issue is almost certain to be dismissed as non-neutral). But many reasonable people have concluded that there are at least a couple of cases that qualify as probable executions of the innocent -- Cameron Todd Willingham and Carlos DeLuna.
You don't seem to view the execution of an innocent person as a bar to continuing the death penalty. I think that's admirably honest. I'd much rather see a death penalty debate that acknowledges some degree of risk, and to see death penalty supporters support reasonable attempts to buttress the system to avoid it, than see blind reliance on that broad assertion.
In the end, I'm ambivalent about the death penalty -- not fundamentally / philosophically opposed, but skeptical of the system in practice. I also don't see what you assume, but don't detail/prove here -- namely, the benefit to justice that comes from having something like our current death penalty system, as opposed to life without parole.
-- "George Washington also owned slaves."
Do you people ever tire of this? Or of pretending that you're morally superior to Washington?
George Will claimed that having capital punishment shows Americans' belief in the "majesty" of government. In fact, as both he and (I strongly suspect) you know, no country on earth is LESS into majesty, and in particular the "majesty" of government, than this one. Severe skepticism of government is, as they say, as American as apple pie. Washington is an excellent personification of this, which is one of the reasons I used him as an example.
Will conflates "majesty" with "moral confidence in democratically enacted law," which are two vastly different things.
-- "I hope that your not suggesting re-instituting slavery based on George Washington having owned slaves is a valid argument."
And I hope you don't try that BS with me again, ever, or you are done on this blog.
If you apologize, I will continue to engage you. Otherwise, get lost.
-- "Where I take issue with this post the most is your assertion that the U.S. has never executed an innocent man."
I never said that.
-- "Moreover, it is almost certain that the U.S. has executed many innocent people in the past, given that many evidentiary pillars and forensic practices have been undermined scientifically as knowledge has advanced and that DNA has only recently been a well-developed input to verdicts and post-verdict proceedings."
Speculation and extrapolation never got very far in court, and don't get a lot farther here either. See Justice Scalia's concurrence in Kansas v. Marsh.
-- "...it seems doubtful there is any quantum of proof that would be sufficient for death penalty supporters to give up that talismanic assertion. You hint as much in your 'neutral authority' qualifier..."
I plead guilty in spades to unwillingness to accede to biased "authority."
-- "But many reasonable people have concluded that there are at least a couple of cases that qualify as probable executions of the innocent -- Cameron Todd Willingham and Carlos DeLuna."
They may be reasonable in a whole bunch of things. But after-the-fact bystanders with an agenda do not get to declare that the judge, jury and reviewing courts -- who considered the case when the chips were down -- all got it wrong, and they're getting it right. That's not being reasonable. That's being loaded down with hubris.
Willingham's own lawyer has said he was guilty. How many of the Willingham-is-innocent bunch have had the opportunity to talk with Willingham as candidly as his lawyer did?
-- "You don't seem to view the execution of an innocent person as a bar to continuing the death penalty. I think that's admirably honest. I'd much rather see a death penalty debate that acknowledges some degree of risk, and to see death penalty supporters support reasonable attempts to buttress the system to avoid it, than see blind reliance on that broad assertion."
And I'd like to see abolitionists acknowledge, not just the possibility, but the established fact, that incarcerated murderers have killed many more people post-sentencing than the number even the most eager abolitionists claim as executed innocents.
There is a risk to innocent life in having the death penalty, true -- and a bigger risk to not having it. For me, this does not pose a hard choice.
But for however that may be, you omit to mention one of my major points in the rejoinder to Will. Our law and the society from which it emerges ALL THE TIME take the risk of death to innocent people. We do this because we understand that, although such deaths exact a heavy cost, there are some things for which the cost is worth paying.
One of those things is so mundane as allowing very high speed limits. If we lowered the speed limit to 25 mph nationwide, we would save thousands of innocent lives every year.
Are you in favor of a nationwide speed limit of 25?
No one else is either.
The reason is that allowing higher speeds is worth the candle for the benefits it produces.
If society can make that judgment, merely in the name of convenience, then surely it can make the judgment to allow a far, far smaller risk of taking innocent lives in the name of a punishment the great majority views as just.