How to End the Death Penalty for Good
It’s a topic the public feels strongly about. But it’s also a topic on which the public’s feelings have swung quite rapidly. Hmm.
Americans began to favor abolishing the death penalty in the 1960s, and then, abruptly, shifted back to supporting it. That continued for decades, but the trend has just reversed: In recent years, according to data from Pew, there has been a dramatic shift away from support for capital punishment. The “favor” side still has the edge, at 49 percent. But “against” is now up to 42 percent, making it entirely possible that in the next few years, the lines will cross.
Practical opponents of the death penalty, myself included, argue that it offers limited deterrence, carries a risk of grave injustice and is monstrously expensive because of the extensive automatic appeals. So I root for its end, and I see two obstacles.
The first is simply rising crime. The shift that occurred in the late 1960s is sharp but also entirely explicable: Crime was on the upsurge, and a fearful public decided that we had obviously been too lenient with criminals. And so lawmakers and prosecutors and judges went for tougher sentences. As crimes of lesser outrageousness started to carry stiffer terms, greater outrages obviously need even greater penalties; we do not want to be handing out the same sentences for burglaries as for brutal gang rapes. And if a crime already carries life without parole? Unless we start turning our prisons into torture chambers, there is only one stiffer penalty we can deliver, and that’s to kill.
As a method to reduce crime, simply handing out stiffer sentences has only limited effectiveness. For one thing, people tend to age out of violent crimes, so as people age, you get less and less crime-reducing benefit from holding people behind bars. A 60-year-old man being detained for a gang murder committed 30 years ago is probably not being kept from doing much except walking around.
Nor do long sentences necessarily provide as much deterrence as you might think. To be sure, if the sentence for a particular crime is “stand in a corner for 10 minutes,” you probably won’t get any deterrence at all, and you need to increase the sentence. But most criminals are not rational calculating machines of the sort that will think, “Well, given the odds of getting away with it, I’m willing to risk a sentence of 15 years, but not 30.” Violent criminals tend to be impulsive, and not very good at calculating cost-benefit ratios. The economic jargon for this is “hyperbolic discounters”: they place very high weight on things that will happen in the very near future, and very low weight on things that will happen a long time from now.
Because of this, increasing the length of the sentence is much less effective than increasing the probability of the sentence -- which is to say, the likelihood that someone who breaks the law will get caught and punished. Probation systems, parole boards and drunken-driving-prevention programs have all achieved amazing results with new models that use very short jail terms (as little as a night or two), combined with much tougher monitoring to ensure that anyone who violates the conditions of their parole will definitely spend those nights in jail.
This, it turns out, is much more effective than the model that public policy professor Mark Kleiman calls “randomized draconianism,” or as a probation judge put it to me, “No punishment, no punishment, no punishment, BAM! Five years in prison.”
But while these ideas are absolutely influencing criminal-justice policy among professionals, I don’t see much evidence that the general public thinks along these lines. Support for the death penalty has fallen because crime has fallen, and people no longer feel the need for brutal measures to protect them. If the recent uptick in violent crime turns out to be a trend, I would expect to see a corresponding uptick in support for the death penalty.
The second risk we face is that elites will decide the death penalty is stupid, and try to outrun the voters on the issue.
In 1972, in Furman v. Georgia, the Berger court invalidated basically all the death penalty statutes in the United States. I tend to agree with crime (and baseball) writer Bill James about the result:
By 1972 the death penalty had been in decline in America for four decades, and was near to extinction. The same was true of abortion laws; both had been in decline in America for decades, neither had the benefit of any organized public support, and both, in the view of the author, would have died a natural death before 1980 had the Supreme Court simply stayed out of it.
Americans don’t like having courts tell them what they may decide through the legislatures. Bringing the courts into the matter tends to mobilize and harden opposition that was previously inchoate. There are other reasons that support for the death penalty went up in the 1970s, but I think the Supreme Court helped it along. And I think there is a danger the justices will be tempted to do so again.
At this stage in the election, it looks much more likely than not to me that Hillary Clinton will be our next president, and that she will appoint liberal Supreme Court justices. They may well try to end the death penalty once and for all. This would be a terrible mistake. Especially if that decision happens just as crime is starting to rise. The public’s frustration would be counterproductive to the long-term cause of criminal-justice reform.
I hope that crime will flatten out or continue to fall, and that support for the death penalty will continue to decline, letting us move to more effective models of punishment.
The path to those outcomes, however, requires death-penalty abolitionists to do more than talk about how terrible the death penalty is. We should be working hard to ensure that crime stays low and to ensure that any changes to our criminal-justice system are done with the consent of the voters, rather than in spite of them. Of course I’d rather end executions sooner rather than later. But it’s even more important that when we end them, we end them for good.
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