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Attorney General William Barr announced last week that the federal government would resume the imposition of capital punishment, directing the Acting Director of the Bureau of Prisons to schedule executions of five inmates convicted of truly heinous murders.
One important issue, not addressed here in detail, is why the punishment of these individuals has been left to federal authority under federal law, as the respective crimes could have been prosecuted under state law. No conservative seeking to preserve our constitutional structure should support a federalization of given crimes merely because of a sense that the penalties mandated under state law are insufficient. And it is far from obviously appropriate that the same criminal acts be covered by both federal and state law under a “dual sovereignty” theory of jurisdiction, although the Supreme Court ruled recently that it is.
For conservatives the issue of capital punishment, whether imposed at the state or federal level, confronts a dilemma much more fundamental. On the one hand, an effective system of capital punishment is necessary to rationalize the system of penalties for greater and lesser crimes, that is, to preserve an effective system of “marginal deterrence.” On the other hand, the traditional conservative skepticism of government power generally, and of the perverse incentives of prosecutors in particular, might lead toward a net conservative opposition to capital punishment, the imposition of which cannot be limited in those cases in which the innocent are convicted wrongfully. The discussion here attempts to find a route escaping this dilemma.
With respect to marginal deterrence, consider for example the case in California of Jesse James Hollywood. (Yes, that is his real name.) He is serving a life sentence (without the possibility of parole) for the kidnapping and murder of 15-year-old Nicholas Markowitz in August 2000. After Hollywood “called his lawyer and learned the severe penalty for kidnapping, police say, the young men decided they had to kill Nicholas” (Los Angeles Times, August 26, 2001).
In other words, since the penalty for kidnapping was a life sentence, or close to it, the marginal (or “extra”) penalty for murdering the young and innocent Markowitz was perceived to be small or zero, in that the actual application of capital punishment in California was and remains both unusual and subject to long delay.
More generally: If a criminal faces a life term for a given crime, and if there is no effective threat of a death sentence, why not get rid of the witnesses? Stiff penalties and other policies are likely to deter crimes, as suggested by the scholarly literature, but if the structure of the penalty system makes even stiffer penalties difficult to impose, that structure actually can encourage crimes even more egregious.
Such crimes as attempted murder, aggravated rape, or kidnapping for ransom are so egregious that they appropriately carry very stiff penalties approximating life sentences. In the absence of capital punishment, that necessarily reduces the marginal penalties for offenses even worse, a state of affairs that can be predicted to increase the rate at which such terrible crimes are committed.
One way around this deterrence problem is to reduce penalties for the large array of lesser crimes so as to preserve marginal deterrence for the more serious ones. But that would yield an increase in the rate at which the lesser crimes — many of which are hardly trivial — are committed, and might actually increase the rate at which the truly serious crimes are observed, in that some offenses, such as unplanned killings of convenience store clerks, are outcomes of lesser felonies. In short, an attempt to preserve marginal deterrence by reducing penalties across the board is likely to increase serious crime generally and the taking of innocent life. Therefore, a society serious about deterring egregious crimes generally and murders in particular, and anxious to use punishment as a moral expression of the value of innocent life, must have an effective system of capital punishment.
But: Can there be any doubt that prosecutors have perverse incentives to hide exculpatory evidence, to suborn perjury, and to use plea bargaining as a hammer to induce the accused to plead guilty so as to avoid penalties even more severe, including capital punishment? I betray no secret when I report that many prosecutors are loath to allow new evidence to threaten their prior conviction “victories,” the pursuit of justice be damned. It often is asserted that prosecutors have an ethical obligation not to threaten filing of capital charges in order to obtain a plea bargain in exchange for, say, a life sentence. How this ethical constraint is to be implemented in practice is far from obvious. More generally: That prosecutors often are elected and have ambitions for higher office create incentives far from salutary in the context of the fundamental pursuit of justice rather than convictions.
In the absence of capital punishment, a second conceptual solution to the problem of marginal deterrence would be a Soviet-style system of general-, strict-, and special-regime prisons offering inmates declining standards of comfort in inverse proportion to the seriousness of the crimes committed. Even the general-regime prisons were brutal, and it is not obvious that inmates would prefer years in a special-regime facility to a quick execution. Obviously, such a prison system would violate traditional norms of American morality, and the courts would be unlikely anyway to uphold it as consistent with the 8th Amendment.
The goal is to preserve marginal deterrence while limiting the effects of perverse prosecutorial incentives. A third solution to this conundrum — consistent with the moral pursuit of justice and the preservation of political support for capital punishment — would be that those accused of capital crimes be given the resources, say, $750,000 or whatever the funding necessary for a serious defense and appellate process. (Whether such funding would be need-based and other administrative details are not of direct concern here.) This hardly would be an important fiscal burden in an economy with a GDP approximating $20 trillion. Such a political compromise restoring an effective system of capital punishment might also include a new state or federal court of appeal specializing in capital cases, combined with strict time limits on the number and length of appeals. This new court would be subordinate to the Supreme Court, but it is likely that the latter would accept few or no appeals from the former.
The common argument that a humane society cannot risk even one execution of an innocent is misguided: Just as most of us risk death daily in order to drive automobiles, participate in extreme sports, or watch the Lifetime channel, it is axiomatic that virtually anyone would be willing to bear the infinitesimal risk of wrongful execution in order to obtain the far more important reductions in serious crime that an effective system of capital punishment makes possible. Capital punishment is an extremely difficult business. The alternative is worse.
Just as most of us risk death daily in order to drive automobiles, participate in extreme sports, or watch the Lifetime channel, it is axiomatic that virtually anyone would be willing to bear the infinitesimal risk of wrongful execution in order to obtain the far more important reductions in serious crime that an effective system of capital punishment makes possible.
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