The American Interest
Religion & Other Curiosities
Published on May 2, 2012
Capital Punishment and the Deficit

Reading the New York Times at breakfast is more than a habit. It is a sort of addiction. One experiences withdrawal symptoms in places where the paper is not available (especially when the only alternative is USA Today). At least in this country, the Times has no serious rival for good international news coverage, by some of the best journalists around. The editorial page is another matter, a predictable assortment of politically correct opinions. [Relevant joke: What will be the very last headline of the New York Times? – “World Ends Tomorrow: Gays, Lesbians, Bisexuals and Transgendered Persons Hit Hardest.”] I rarely agree with a Times editorial. I did on April 13, 2012. The editorial was headed “More Evidence Against the Death Penalty”. The conclusion, with which I strongly agree, was that “Capital punishment… should be abolished throughout the United States.” I do have some questions about the “overwhelming evidence” cited in support of the conclusion.
The editorial was triggered by the news item that Connecticut has just voted to abolish the death penalty, thus becoming the 17th state without the penalty and the 5th to abolish it in the last five years. There is now a growing movement in this direction. Repeal measures are being prepared in California, Florida, Georgia, Kansas, Kentucky and Washington, and death penalty laws are under review in Ohio, Oregon and Pennsylvania. If this movement continues, there is some chance that the United States may cease to be the exception among Western democracies in its enthusiasm for capital punishment. According to Amnesty International, which keeps abreast of this matter, the US is among the 22% of member nations of the United Nations who retain the death penalty both in law and in practice (quite a few have it on the books, but fail to use it). In 2011 the US was the only country in the Americas to have carried out executions. In 2010 it occupied the fifth place in the number of executions carried out (46). Only four countries were ahead of the US—China (2,000 executions), Iran (250), North Korea (60), Yemen (53). A noble company, one might say. As is well known, no country can be a member of the European Union if it retains the death penalty, and the US difference has been an important contribution to anti-Americanism in both Europe and Latin America.
According to Gallup, there have been ups and downs in public opinion concerning capital punishment (possibly related to varying degrees of fear of crime). As of 2010, 64% of Americans were in favor, though there has been some movement toward favoring abolition. This is greatly increased if life imprisonment without parole is offered as an alternative. In any case, the legislative trend is clearly not a response to a big shift in public opinion, but rather a development within the political class. Since this blog has a religion focus, it should be mentioned that support for the death penalty correlates negatively with degree of religious involvement – 65% in favor among those who attend services weekly or more, 69% among those who attend monthly, 71% of those who attend rarely or never. There are interesting differences as between religious groups – 71% of Protestants are in favor of the death penalty, 65% of Catholics, 57% of those with no religious preference. There has been a notable decline in support among Catholics (possibly due to recent teachings about a “culture of life” by the Catholic Church). Across all denominations, Christian as well as Jewish, religious conservatives are more in favor of the death penalty than religious liberals. Not surprisingly, this difference is very visible within Protestantism—among clergy and lay people, and in official positions of church bodies. All mainline Protestant churches have made abolitionist statements, while Evangelical churches (notably the Southern Baptist Convention) have supported retention. Again not surprisingly, the (liberal) Evangelical Lutheran Church in America has come out for abolition, the (conservative) Lutheran Church – Missouri Synod for retention. The ancient affinity between priests and hangmen has not completely disappeared; this is not the place to repeat what I have written elsewhere on this unfortunate phenomenon.
But back to the development commented upon in the Times editorial: What are the arguments made in the current legislative debates? There is the argument that the death penalty is grossly unjust, being imposed disproportionally on the poor and on racial minorities. Thus 35% of executions since 1976 were suffered by African-Americans (currently 12.6% of the population). And there have been many reports of blunders made by court-appointed defense counsels for indigent defendants. There has been a disturbing number of cases where death row inmates were freed as a result of DNA evidence (leading to the reasonable supposition that they were the lucky ones, while others were executed in the absence of such evidence). Yet these facts have been acknowledged by those in favor of capital punishment, only used to call for more stringent procedures.
We live in an era of government deficit. Thus the major argument in favor of abolition has not been for the reasons just mentioned, and even less on grounds of the inhumanity of capital punishment, but quite prosaically because of its cost. According to one study, since 1978 (when a more extended application of the death penalty was enacted) the state of California spent about $4 billion in order to carry out 13 executions. I suppose this could be seen as a rather bizarre proof that the legal system is reluctant to execute, therefore giving a defendant ample time for appeal. Be this as it may, the cost is clearly huge. Donald Heller, who helped draft the ballot initiative which led to the 1978 law, now calls for another ballot to repeal the penalty: “The cost of our system of capital punishment is so enormous that any benefit that could be obtained from it… is so dollar wasteful that it serves no effective purpose.”  Suppose that the cost/benefit analysis came out differently: Would we then drop any opposition to capital punishment?  Or suppose that the routine use of torture by the police greatly reduced the crime rate and its great cost, would we then endorse the practice?

Whatever morally neutral arguments may be used in public debate, the basic motive for abolition is moral: It is the conviction that capital punishment is an intrinsically inhuman barbarity. [Full disclosure: I fully share this conviction.] Thus a moral conviction, and not any arguments about economics or unfairness, led to the abolition of the death penalty throughout a Europe still under the shadow of the monstrous inhumanity of Nazi power. Two passionate books by famous authors were influential in the debate about this—Arthur Koestler’s Reflections on Hanging (1956) in Britain and Albert Camus’ Reflections on the Guillotine (1957) in France. [It is significant that Koestler narrowly escaped execution by the Franco forces in Spain, and that Camus was active in the Resistance in Nazi-occupied France.]
Opponents of capital punishment might wish that similar moral arguments, rather than economic calculations, would lead to the end of capital punishment in the United States. However, it is results rather than purity of motive that finally matter in what Max Weber called the ”ethic of responsibility”.  Quite frequently in history morally desirable changes occurred for reasons that had nothing to do with morality: How important in the abolition of slavery was the insight that keeping slaves was more expensive than employing free labor? How many South African businessmen turned against apartheid because it was ruining the economy, rather than because they were impressed by sermons on racial equality? And must one deplore if some east European states are improving their treatment of minorities in accordance with European Union law, not because they are sorry about past atrocities, but because that is a condition of obtaining EU subsidies?  History is not an ongoing seminar in moral philosophy. This does not mean that moral considerations play no role; it does mean that, much of the time, it is more effective to appeal to interests rather than conscience.

  • Dr. Thomas Balogh

    And it is significant too that Koestler and Camus loved the same woman in the late ’40s – Mamaine Koestler neé Paget…

  • mike

    One would hope that you also oppose abortion.

  • Kris

    “the US difference has been an important contribution to anti-Americanism”

    Polls indicate substantial or even majority support for the death penalty in many “enlightened” European countries. This could lead one to speculate that if the issue is contributing to anti-Americanism, it is among the “ruling classes”. One might furthermore wonder if in the absence of said issue, anti-Americans would suddenly discover the wonders of America.

    “the abolition of the death penalty throughout a Europe still under the shadow of the monstrous inhumanity of Nazi power.”

    But not quite quickly enough to prevent the results of the Nuremberg trials.

    “The ancient affinity between priests and hangmen has not completely disappeared”

    There’s a guard, and there’s a sad old Padre.

  • Richard Treitel

    The cost and morality are not orthogonal dimensions. I don’t know what it costs Texas to carry out an execution, but I imagine their hang-em-high sell-em-cheap approach is much cheaper than California’s … and kills many more innocent people. The states where execution is expensive are the ones that try hard to apply it conscientiously with respect to some of the moral issues raised in this article. That gets expensive precisely because doing executions in a morally satisfactory way (satisfactory to a hefty majority of their voters) is … darn near impossible.

  • Dave Shuford

    There are some crimes so heinous that a decent regard for morality demands death as the appropriate punishment. Whether or not the death penalty acts as an effective deterrent is impossible to determine with any accuracy. In any case that aspect is secondary to the society’s need to establish and maintain hard limits on behavior.

  • Pingback: The Religious Tend to Oppose the Death Penalty » First Thoughts | A First Things Blog

  • Adam Garfinkle

    I understand the view that sometimes interests are more compelling motivational factors in politics than considerations derived from sound moral logic. But I think it is a mistake to highlight cost considerations when thinking about the death penalty. As many observers have remarked, over the past few decades we have witnessed a kind of mindless invasion of market metaphors into domains of our social life where they have no business being. I think consideration of the death penalty should be the last place that we would want to introduce such metaphors.

    Not that anyone asked, but my own view of the death penalty also admits of practical matters, though not any matters concerning costs. In my view, the death penalty should be on the books as a symbol of society’s elevation of human life to the pinnacle of our value hierarchy. But I think the conditions under which the death penalty should be carried out ought to be so stringent that it virtually never occurs. This was, more or less, the attitude of rabbinic Judaism at least until recent centuries. In the Talmud a court that invoked the death sentence even once or twice in an entire generation was called “a bloody court.” The conditions iterated for implementing the death penalty are so stringent that, were they to be followed today in our penal system, very few if any executions would actually occur. I think that is the best balance between principal and practice.

  • http://www.conservativemormonmom.blogspot.com Eva

    I’d be interested to hear your thoughts on the repeat offenders. The ones released from jail who rape/murder again and again. Life in prison is even more expensive than the most expensive death penalty, and what sort of a life is it anyway, to live in prison for decades?

  • Geoff Brown

    Many arguments against the death penalty are flimsy. For example, supposedly it’s used much more if the defendant is black — but this is not the case when comparing apples-to-apples crimes. If people who are black are 1/3 of those put to death, but commit well over half of homicides — and this is the case — then they are underrepresented among those put to death.
    The death penalty is costly because of the absurd grounds for appealing and the fact that the states are usually paying both sides of the case — the appellate defenders and the prosecutors both.
    This may sound odd, but I think the death penalty is sometimes used for the wrong crimes. It is the armed robber or sexual assailant who may be deterred from murder by a strong likelihood of being put to death, not the serial thrill killer. It may be the violent spouse who is deterred.
    Perhaps the ancient courts of Israel were slow to use the death penalty but the law of Moses prescribes the death penalty for a lot of crimes, some of which we no longer recognize as crimes. Certainly the death penalty has been used wrongly in the past and is sometimes used wrongly now around the world, but I’m not convinced that is true in the US.
    There is a place for an absolute moral argument against execution — and we should all listen to it. I have not yet accepted it and I doubt I will. I’d prefer a world where the question never came up because the crimes never occurred.

  • William Goldman

    First Degree Murder (i.e. murder in cold blood) is arguably deserving of death as the punishment. But in practice, states that practise capital punishment get it wrong at times (for a variety of reasons) – and someone who has been executed cannot be let out and compensation to enjoy the rest of his life. That is why I oppose capital punishment.
    I am also opposed to abortion, since it always involves the killing of an innocent.

  • William Goldman

    Sorry, “compensated” not “compensation”

  • Cunctator

    If the state can call upon its citiczens to sacrifice their lives in its defence (i.e., conscription), surely it can execute those who threaten (or have completely extinguished) the continued safety of its citizens.

  • Luke

    [quote]Thus a moral conviction, and not any arguments about economics or unfairness, led to the abolition of the death penalty throughout a Europe still under the shadow of the monstrous inhumanity of Nazi power. [/quote]
    Yet somehow, they were just fine with us hanging Nazis.

    This is quite possibly the most ridiculous post I’ve ever seen on the internet.
    And that’s saying quite a lot.

    Europeans favor capital punishment by substantial margins. It’s their “leaders” who don’t. Given a referendum, nearly all European countries would once again have the death penalty.
    The states that have rejected the death penalty are among the least religious. Which makes the non sequitur about church attendance especially humorous.
    Latin America’s anti-Americanism is largely driven by a communist ideal. An ideal which has never been bashful about utilizing capital punishment. (Nor are there any shortage of stories about death squads and gulags in South America. Due process? Not so much.)
    The Bible explicitly and implicitly endorses capital punishment. You have no moral case without rejecting the moral authority of the Bible.
    That foreign countries execute people for things we do not recognize as crimes does not, in any way, invalidate the principle of executing people for crimes that we find heinous.
    Bullets are cheap and effective. If we were allowed, we could easily clear my state’s Death Row for under $5. There’s no shortage of us who would volunteer to pull the trigger, and even be willing to supply the ammunition.

  • Grover

    Lets see, paroled convicts who rape the wife & two daughters and then burn them alive should be kept alive. This way they can get a boy toy in prison, get into fights beat & insult guards and other types of fun. And if you think it prison is a deterrent why would convicts do this? If you think they do not ENJOY violence why would they do this? and why would they not get enjoyment out of prison violence?

  • JoeS

    As DNA has proven the innocence of people falsely convicted, from now on, we can execute people truly convicted using DNA.

  • doug

    The only reason capital punishment is expensive if because of endless appeals. Give one basket of appeals. That, Peter, is the problem. But to make this work, and to reduce the number of people who are unfairly on death row, you should also have hard criminal (mandatory) punishments for those prosecutors and police who knowingly hide exculpatory evidence. There is no reason why the rest of us should have to pay to keep repeat offenders alive, well-fed, and supplied with cable TV.

  • Charles R. Williams

    I oppose the death penalty. Put the issue in front of me on a ballot and I will vote against it. But there is nothing inherently unjust about executing people who are guilty of capital crimes. I do think it panders to the baser instincts of a certain segment of the population. It is also a costly circus because of the inefficiencies of the American legal system.

    It is far more important to reduce, restrict and ultimately eliminate induced abortions. There seems to be some sense in people’s minds that these issues are linked. But there is a world of difference between killing innocent people deliberately and executing guilty criminals.

  • Robert Speirs

    How about a real argument against capital punishment on moral grounds rather than the bald assertion that it is “intrinsically inhuman”?? Why? Because you say so? A much better moral argument can be made that it is barbarous to allow a murderer to live. Do we not put down mad dogs? 46 executions in a nation of 300+ million people is a moral crisis? Well, yes, but only because at least a hundred times that many fiends in human form were suffered by our profoundly immoral “justice” system to go on living.

  • Mark in Texas

    The short version of this essay is that you feel comfortable in trying to impose your moral values on everybody else. That’s fine, most people do, although they are less up front about admitting it.

    How about this consideration: What if we change the law so that organs from executed criminals are available for transplant regardless of the wishes of the executed party? By arguing against capital punishment then you would be condemning several innocent organ recipients to death, often a rather unpleasant death at that. Would that assuage your concerns that the social and legal apparatus of capital punishment as conducted by human beings in the real world fails to achieve 100% perfection?

    The consideration that foreigners might hate us less if we abolished capital punishment is just too silly for response.