Rush to Judgment?

Suppose you see a man with a gun chasing another man down the street. You are armed and decide to intervene. You yell at the pursuer to stop or you’ll shoot him. He pays you no heed and continues his pursuit. You shoot the pursuer in the back and he drops dead. The pursued man continues his flight and soon disappears from your view.

You call the police to report the incident, and an investigative team soon arrives on the scene. The crime-scene investigator turns the dead man over and sees that he is a fellow police officer. The investigator calls the officer’s unit to determine the officer’s assignment at the time of the shooting.

The investigator learns that the officer had been about to make an arrest in a drug sting. The man he was chasing was probably a mid-level drug dealer who was in charge of a drug-dealing operation that spanned one-fourth of the large city in which you live. On further investigation, these facts are confirmed. You are charged with manslaughter.

But if the person you shot had been a criminal intent on killing the fleeing man, you would have been hailed as a hero.

This hypothetical situation can be thought of as a metaphor for the possibility that a jury will convict an innocent person for a crime that carries the death penalty.

There is almost always some degree of uncertainty about the guilt of a person who is convicted of murder. Most murder convictions are based on “circumstantial” evidence, though it should be compelling evidence to secure a conviction. But a murderer is seldom caught at the scene of the crime in a manner that points unambiguously to (a) his culpability and (b) lack of mitigating circumstances (e.g., self-defense). Rock-solid, 100-percent certainty of guilt is hard to come by.

There are many who argue that such considerations — wrongful conviction, less-than-certainty — call for abolition of the death penalty.

There are two ancillary arguments against the death penalty. The first is that the execution of a person is an irrevocable act which can’t be reversed if evidence surfaces to prove the person’s innocence or, at least, cast reasonable doubt on his guilt. But imprisonment can’t be reversed, either. Awards of monetary damages in cases of wrongful conviction aren’t truly compensatory; time can’t be rewound.

Thus I am unpersuaded that  the death penalty is wrong because it is irreversible. All penalties except strictly monetary ones, repaid with interest, are irreversible. And even those have some costs attached to them (e.g., time lost, shame) that can’t be erased.

The second ancillary argument — which isn’t really an argument — is that the death penalty is barbaric. I am unpersuaded that the death penalty is barbaric. It is a penalty for the commission of a barbaric act. To call it barbaric is to stoop to the kind of emotionalism that typifies the left, whence flows most opposition to the death penalty. (If it’s not barbaric, it’s racist; if it’s not racist, it’s primitive; and on into the night.)

Lost in all the noise are the the essential purposes of punishment: vengeance, deterrence, and security. Restitution and rehabilitation are pipe dreams.

Capital punishment is the capstone of a system of justice that used to work quite well in this country because it was swift, certain, and harsh. But the erosion of the capstone has led to the erosion the edifice beneath it. When the worst crimes merit less than death, the next worse crimes merit lesser punishments than before, and so on down the line. At the end of the line, there are increasing numbers of police officers who refrain from intervening in criminal activity lest they themselves be charged with brutality. It’s little wonder that the rate of violent crime has risen for the past two years.

There must be a hierarchy of penalties for crime, and that hierarchy must culminate in the ultimate penalty if criminals and potential criminals are to believe that crime will be punished. When punishment is made less severe and less certain, crime flourishes and law-abiding citizens become less secure. (Some of the related posts listed below provide relevant statistical evidence.)

There are those who argue that the deterrent effect of capital punishment isn’t what it used to be. But that is because the death penalty is rarer and less certain than it used to be. The deterrent effect would be greater if there were a strict limit on the number of appeals and the time available for such appeals.

In any event, even if capital punishment had no deterrent effect, the execution of a murderer eliminates the possibility that he will murder again.

What about the possibility of a mistaken conviction? That possibility argues not for the abolition of the death penalty, but for strict scrutiny of the evidence against an accused to ensure that it is completely and timely divulged to the defense. It also calls for a special class of defense counsel: lawyers who specialize in and are knowledgeable of the kinds of evidence that are (and should be) presented and examined in capital cases (e.g., evidence about DNA, ballistics, poisons, etc.).

As a taxpayer, I would rather subsidize the training, testing, and monitoring of such lawyers than put up with the seemingly endless rounds of death-sentence appeals and the costs associated with them. The tradeoff would be enshrined in law: a definite limit as to the number of appeals and the length of time allowed for them, on the one hand, and a greater assurance of robust defense for the accused, on the other hand.

Justice delayed is justice denied.


Related reading: John Paul Wright and Matt DeLisi, “What Criminologists Don’t Say, and Why“, City Journal, Summer 2017

Related posts:
I’ll Never Understand the Insanity Defense
Does Capital Punishment Deter Homicide?
Libertarian Twaddle about the Death Penalty
Crime and Punishment
Saving the Innocent?
Saving the Innocent?: Part II
More Punishment Means Less Crime
More About Crime and Punishment
More Punishment Means Less Crime: A Footnote
Clear Thinking about the Death Penalty
Let the Punishment Fit the Crime
A Precedent for the Demise of the Insanity Defense?
Another Argument for the Death Penalty
Less Punishment Means More Crime
Clear Thinking about the Death Penalty
What Is Justice?
Why Stop at the Death Penalty?
In Defense of Capital Punishment
Lock ‘Em Up
Free Will, Crime, and Punishment
Stop, Frisk, and Save Lives
Poverty, Crime, and Big Government
Crime Revisited

Let’s Make a Deal

Let's make a deal

The last deal negates all of the concessions made in the other deals — for those of us who will choose to live in Free States.

In Defense of Capital Punishment

Edward Feser, writing  at Public Discourse on September 29, 2011, “In Defense of Capital Punishment“:

Traditionally, the aims of punishment are threefold: retribution, or inflicting on a wrongdoer a harm he has come to deserve because of his offense; correction, or chastising the wrongdoer for the sake of getting him to change his ways; and deterrence, discouraging others from committing the same offense. Retribution is necessarily the most fundamental. Strictly speaking, we cannot correct someone who doesn’t deserve correction; at most we might try to affect his behavior (via drugs, say) in a sub-personal manner that doesn’t appeal, as true correction does, to his sense of desert and shame. We also cannot justly inflict a punishment on someone for purposes of deterrence unless he deserves that punishment. That retribution is fundamental doesn’t entail that those with the authority to do so must always exact retribution on an offender. It does, however, mean that retribution may be exacted, all things being equal (though of course things are not always equal); it also means that retribution—inflicting a harm that is deserved—must always be part of any act of punishment, even if it is not the only part.

I agree with Feser that retribution is fundamental, though I would go further:

Justice, at bottom, can only be revenge. Murder and mayhem cannot be undone or somehow ameliorated. The loss of a life, a limb, or an organ is permanent. Other injuries take time to heal, and may heal imperfectly; the healing time and its attendant costs are lost, in any event. Theft is rarely made whole.

Aside from the inculcation of morality, our surest protection from predation is the promise of swift and sure vengeance. When the state fails in its duty to exact that vengeance, it becomes illegitimate.(“What Is Justice?,” June 19, 2011)

Deterrence and retribution (vengeance) are tightly bound. As for correction, the best corrective is to keep criminals away from the rest of us, for as long as is reasonably possible.

What about capital punishment? Here is Feser:

If wrongdoers do deserve punishment, and if punishment ought to be scaled to the gravity of the crime (harsher punishments for graver crimes), then it would be absurd to deny that there is a level of criminality for which capital punishment is appropriate, at least in principle. Even if it were claimed that a single murder would not merit it, it is not difficult to imagine crimes that would. Ten murders? Ten murders coupled with the rape and torture of the victims? Genocide? If wrongdoers deserve punishment and the punishment ought to be proportional to the offense, then at some point we are going to reach a level of criminality for which capital punishment is appropriate at least in principle. To claim that no crime could justify capital punishment—to claim, for instance, that a cold-blooded genocidal rapist can never even in principle merit a greater punishment than the lifelong imprisonment inflicted on a bank robber—is implicitly to give up the principle of proportionality and, with it, any coherent conception of just punishment.

My thoughts parallel Feser’s

Capital punishment is the capstone of a system of justice that used to work quite well in this country because punishment was certain…. There must be a hierarchy of … penalties for crime, and that hierarchy must culminate in the ultimate penalty if criminals and potential criminals are to believe that crime will be punished. When punishment is made less severe and less certain … crime flourishes and law-abiding citizens become less secure in their lives and property. (“Does Capital Punishment Deter Homicide?,” October 4, 2004)

Related posts:
Does Capital Punishment Deter Homicide?
Libertarian Twaddle about the Death Penalty
Crime and Punishment
Abortion and Crime
Saving the Innocent?
Saving the Innocent?: Part II
More on Abortion and Crime
More Punishment Means Less Crime
More About Crime and Punishment
More Punishment Means Less Crime: A Footnote
Let the Punishment Fit the Crime
Another Argument for the Death Penalty
Less Punishment Means More Crime
Crime, Explained
Abortion and Crime (from a different angle than the earlier post of the same name)
Clear Thinking about the Death Penalty
What Is Justice?

Why Stop at the Death Penalty?