Long Live Capital Punishment
Reports of its death have been greatly exaggerated.
BY BRENDAN MINITER
Tuesday, January 14, 2003 12:01 a.m. EST
Has the death penalty lost its spark? Two days before leaving office yesterday, Gov. George Ryan of Illinois commuted all 167 of his state's death sentences--most will serve out life sentences. Last year Judge Jed Rakoff issued a ruling that the federal death penalty was unconstitutional. (An appeals court struck it down.) Polls show capital punishment is slightly less popular than it was a decade ago.
Yet death-penalty opponents have less to celebrate than they think.
This isn't the 1970s. Capital punishment is here to stay, in large part because the system isn't rife with errors the way it was in the 1960s. A full 70% of Americans still support the death penalty. But they are hesitant in applying the ultimate punishment, as they should be.
The execution of criminals for the most heinous crimes still draws little objection. There weren't many tears for terrorist Timothy McVeigh when he was dispatched 2 1/2 years ago. And tolerance for terrorists hasn't grown since then. Even Sen. John Kerry, who says he opposes capital punishment, makes an exception for terrorists.
The death penalty is even gaining strength in some quarters. Kansas and New York state both reinstated it in the 1990s. Virginia--which is getting first crack at trying sniper suspects John Malvo and John Muhammed--isn't squeamish about execution. And lawmakers there are considering making it even harder for the mentally incompetent to avoid justice. Prompted by the murder of eight-year-old Kevin Shifflett in Alexandria by a deranged man two years ago, state officials are considering removing the time limit officials have to make a criminal competent enough to stand trial. Currently, Virginia law allows officials to use medication and other treatments for up to five years.
USA Today reports that a growing number of college professors openly support the death penalty. Robert Blecker of the New York Law School opens his argument with three words: "Barbara Jo Brown." The story of this 11 year-old-girl--who was abducted, raped, tortured and then killed in 1981--draws "gasps from a crowd accustomed to dealing in legal theories," according to the paper.
Although Mr. Ryan claimed he was concerned with the possibility of innocent people being executed, this is less likely than ever before. DNA is getting a few men off of death row, but the strength of this evidence also means that there's little doubt of the guilt of those who remain.
Death-penalty opponents are fond of holding up a list of more than 100 "innocent" men who have been pulled off of death row over the past 30 years. But these aren't men who all narrowly escaped execution for a crime they didn't commit. Researchers have found that only about a third of these men have proven their innocence. Some were never given a death sentence, and many won on legal technicalities.
One of them, Larry Osborne, was convicted of killing a couple in their home in 1997. Grand jury testimony used in his first trial came from an accomplice who died before the case made it to trial. An appeals court granted him a second trial and excluded the testimony because the witness could not be cross-examined. As USA Today reports, Osborne was then acquitted. He joined the "innocents" list in August.
With a disproportionate number of black men sitting on death row, ensuring the system isn't racist is a serious concern. But it's not as simple as it first may seem. With blacks consisting of nearly half of all murder victims, the overwhelming majority of whom are killed by other blacks, one way to read the evidence is that not enough killers of blacks are put to death. "Why are the lives of black victims less valued?" asks Marquette University political science professor John McAdams. (One possibility is that prosecutors in liberal urban jurisdictions are less likely to seek the death penalty than their suburban and rural counterparts.)
Despite ample claims to the contrary, researchers are now finding that the death penalty is a deterrent. Researchers at Emory University looked at nearly 6,000 death sentences and compared them to the murder rates and likelihood of being sentenced to death in 3,000 counties. They found every execution saved as many as 18 would-be-murder victims. Other studies done at the University of Colorado and the University of Houston also found that executions saved lives.
There are problems with the death penalty, of course. It is often overpoliticized, with many judges refusing to apply it. And with many condemned men sitting on death row for a decade or more while the appeals process is exhausted, it simply takes too long for justice to be served.
Ultimately, the majority of Americans think it is only fair that the most vicious murderers should pay for their crimes with their own lives. And a society that is willing to impose the ultimate penalty isn't likely to be lenient on any form of crime. As long as the system fairly discerns the innocent from the guilty, that majority will continue to favor execution.
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