WHAT IS, AND IS NOT, WRONG WITH THE DEATH PENALTY

Should this country continue to have a death penalty? Currently, a majority of Americans would probably answer "yes." The law reflects this position, and both the federal government and quite a few states provide for capital punishment in some cases. In addition, though debates about the penalty can be quite heated and passionate, both presidential candidates express support for capital punishment — though Bush may be somewhat more enthusiastic in his support than Gore is.

Accordingly, there is not much in the way of sustained public debate about the basic proposition that death is an acceptable penalty in a civilized nation. Those who favor the abolition of capital punishment typically do not engage the arguments of the majority; in turn, the majority ignores the arguments of the abolitionists.

This essay will begin what I hope will be a dialogue about capital punishment. As a first step, it will evaluate critically the merits of the arguments that opponents of the death penalty most often mobilize on behalf of their cause.

Opponents claim that the death penalty does not deter crime. This may be so. Certainly, if a would-be killer is weighing the consequences of his actions, he can anticipate with some confidence that death is highly unlikely, particularly in the immediate future. The overwhelming majority of people convicted of murder are not sentenced to death, and those who are may still bring extensive (though often ill-fated) appeals. Due largely to post-sentence challenges, many prisoners have remained on death row for over ten years.

These factors may lessen the immediacy of the death penalty in the minds of those planning a murder. The problem for death penalty opponents, however, is that given these realities, the deterrence problem could just as effectively be solved by swifter, more frequent application of the death penalty as by its abolition.

Death penalty opponents also argue that the government behaves barbarically and hypocritically when it first condemns a person for deliberately killing another, and then deliberately kills the person as an expression of that condemnation. Upon closer examination, however, this claim loses much of its force.

The rule of law rests on the principle that private individuals surrender to the State their prerogative to use physical force and self-help to fight wrongful behavior. The urge for retribution is not inherently barbaric or unjust, but the law tells citizens that as a cost of being part of a society, they must resist it. In exchange, the State assumes responsibility for addressing harmful acts through the criminal law.

Most commonly, the State imprisons the perpetrator, taking his freedom away and forcing him to live in a custodial setting. If a private individual decided to substitute her own custodial setting for the State’s, however, her act would represent kidnapping or false imprisonment. The punishment for these crimes is itself imprisonment. Yet when a kidnapper is convicted and incarcerated, no one argues that it is barbaric or hypocritical for the State to hold him captive as a penalty for having held another captive.

In short, the State may punish criminals in ways that private individuals may not, through the use of physical force — whether it be imprisonment or infliction of the death penalty. That is because we believe that the State is usually in a better position than a private individual to determine whether it has the right person in custody (through the trial process) and if so, to issue a uniform and fair penalty.

Death penalty opponents also maintain that the penalty virtually guarantees that innocent people (wrongfully convicted) will, on occasion, be executed. As Justice Blackmun said in dissent from a 1993 Supreme Court decision, "[t]he execution of a person who can show that he is innocent comes perilously close to simple murder." Moreover, unlike an unjust prison sentence, an unjust execution is irreversible.

These arguments are both accurate and extremely troubling. But so is the prospect of an innocent person imprisoned for life, and such a person is much less likely to be freed than his counterpart on death row. Only in death penalty cases are heroic efforts routinely made to ascertain whether the convict may be innocent and if he is, to fight to reverse the penalty. The irreversibility of death thus, ironically, makes reversal of error much more likely in capital than in non-capital cases.

Does this mean that sentencing an innocent to death is better than sentencing him to life imprisonment? No. It does mean, however, that the emergency we must address in this country is the conviction and punishment of innocent people. The promise that abolition of the death penalty will protect the innocent from extreme injustice is an illusion, not a reality.

Finally, opponents contend that racial disparities in capital sentencing call into question the nation’s commitment to racial equality. And it is extraordinarily troubling that we execute people at a higher rate when they kill white people than when they kill African-Americans, and that this disparity increases again for cross-racial murders.

Again, however, the solution does not necessarily lie in the abolition of the death penalty. As I mentioned above, most murder convicts are sentenced to prison; relatively few are sentenced to die. As a result, prosecutors and juries have broad discretion in choosing the few cases in which capital punishment will be imposed. And the biases of our society predictably emerge in force under these circumstances.

Traffic stops are a parallel phenomenon. Because police stop relatively few drivers for traffic violations, officers exercise enormous discretion in deciding whom to stop. One consequence of this discretion has been racial profiling, the practice of disproportionately stopping minority drivers.

One solution to the profiling problem is to limit police stops to cases of serious misconduct. The Supreme Court has, however, already limited capital punishment (for similar reasons) to the most serious of crimes, murder with aggravating circumstances. We might be able to reduce racial disparities further by executing more eligible murderers.

Perhaps, for example, we ought to begin executing more white defendants convicted of killing African-Americans. This idea seemed to be on George W. Bush’s mind when he shocked death penalty opponents at one of the presidential debates by speaking proudly of Texas’ planned execution of white men convicted of dragging an African-American man, James Byrd, to his death.

Despite the analysis I’ve given above, I nonetheless find myself favoring abolition. I came to feel this way most acutely while clerking at the Supreme Court. Every time an execution was to take place anywhere in the United States, a law clerk from each Justice’s chambers remained at the Court to receive last-minute stay petitions that would come in until the sentence was carried out. After reviewing multiple petitions with our respective Justices, we would walk resulting votes around to the different chambers. Participating in these "execution nights," as we called them, was as close as I ever came to carrying out a death sentence.

At some point during an execution night, perhaps at midnight or three o’clock in the morning, clerks would get the call that we could go home because the State had already gassed, electrocuted, lethally injected, or hanged the condemned. I thought often in those days of the people whose job it was to carry out the sentence. It was their responsibility to kill a person they knew, a person who posed no immediate threat to them and who may never have harmed them personally in any way.

Though I do not believe it is wrong in theory for "the State" to execute people, I do believe that private individuals — and private individuals must inevitably carry out the command of "the State" — should not be required as part of their jobs to kill unarmed prisoners. It is not that these prisoners do not deserve to die. In many cases they do, and opponents of capital punishment ignore this desert at their peril. What troubles me most is the harm we do to the people who are forced to bring about that death. It did not surprise me, for this reason, to learn that wardens in charge of death row administration typically come to oppose the death penalty. No one should go home from work and have to live with having just killed an unarmed man.