A Prosecutor’s Rebuttal

My posts on the Stanley Williams execution and my opposition to the death penalty has generated a number of comments and e-mails. One e-mail comes from a prosecutor who wrote such a good argument that it deserves a wider exposure, even though he disagrees with my position. I suspect it speaks for a number of CQ readers.
I’m a big fan of yours, and I read your blog daily. As a prosecutor in Los Angeles, I appreciated your comments today regarding the disgusting glorification cum martyrdom of Tookie Williams, particularly as you are personally opposed to the death penalty.
I’m not a good enough theologian to even try to convince you of the moral propriety of the death penalty, but I would like to take a stab at the LWOP argument. It seems to me that it isn’t enough to say that the people of California could have simply chosen to keep a killer like Tookie locked up forever. Getting rid of the death penalty means that we have to also consider the foreseeable consequences of guaranteeing criminals that they can kill as many innocent people as they want, for whatever reason at all, without even facing the theoretical possibility of placing their own lives at risk.
A few examples to make my point: Suppose we have a career criminal with a long record of violent felonies, what we in California would call a “three-striker”, who knows that he will be sent to prison for the rest of his life if he is ever caught committing a new offense. When he goes to rob the local convenience store, he doesn’t want to hurt anyone – he just wants the money. But he also knows that, as there is no death penalty, he will face the exact same punishment (life imprisonment) whether or not he kills the clerk, the only witness to his crime. He would be a fool not to do so. If he happens to bump into a police officer on the way out, he may as well kill him too – there is no extra charge, so to speak.
If we somehow manage to catch the “three-striker” and place him on trial, it will be in his best interest to sabatoge his own trial by killling witnesses, jurors, prosecutors or judges. After all, if we can’t convict him, he goes free. (Remember that scene from the movie Traffic, where the druglord walks?) And even if we manage to successfully prosecute him for one of these new murders, he will still only face the same life sentence that he was sure to get in the first place.
If we do manage to put a murderer like Tookie away for life, he can then kill anyone he wants to – inside or out of prison – with complete impunity. What are we going to do to him – give him two life terms? In California, we presently have something like 30,000 inmates serving life terms (29,999 as of 12:01 AM!) Most of them have little or no prospect of ever being paroled. I would not like to be there on the day that they are told that they have been given a license to kill.
In short, we can be unreasonably tolerant in granting appeals and delays which put off the actual day of reckoning for decades or more (in California, were looking at about a 25-year process), but I cannot see how we can get rid of capital punishment altogether without creating powerful incentives for criminals to commit murders that they would otherwise not do. I would not want to be the legislator who had to explain to a prison guard’s widow that we knew that we had created a system of justice that refused to set any punishment for the lifer inmate who killed her husband. I take these situations, where potential killers are facing or already serving life sentences, to be the “rare or practically non-existent” cases for which the Catholic Catechism permits the use of the death penalty.
CQ reader Jeff Norris also sends this link by e-mail from The Atlantic Monthly, which covers a Brookings Institute study that surprisingly finds that each execution deters eighteen potential murders:

Support for capital punishment is, of course, usually associated with the political right. But the lead author of a new paper making what might be termed the “big government” case for the death penalty is the noted liberal scholar Cass Sunstein. The paper draws in part on a study conducted at Emory University, which found a direct association between the reauthorization of the death penalty, in 1977, and reduced homicide rates. The Emory researchers’ “conservative estimate” was that on average, every execution deters eighteen murders. Sunstein and his co-author argue that this calculus makes the death penalty not just morally licit but morally required. A government that fails to make use of it, they write, is effectively condemning large numbers of its citizens to death—a sin of omission like failing to protect the environment or to provide adequate health care. “If each execution is saving many lives,” they conclude, “the harms of capital punishment would have to be very great to justify its abolition, far greater than most critics have heretofore alleged.”

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