On Capital Punishment

The Death Penalty: A Debate.
by Ernest Van Den Haag and John P. Conrad.
Plenum Press. 305 pp. $16.95.

If we must have another book on the rights and wrongs of the death penalty, we are unlikely to get one much better than this debate between Ernest van den Haag and John P. Conrad. Van den Haag has long been one of the ablest defenders of capital punishment, and Conrad, previously unknown to me, is at least a more reasonable abolitionist than some of his fellows, such as Ramsey Clark.

It may be, however, that the debate is largely academic. Despite the opinion of a great majority of ordinary citizens and their elected representatives that capital punishment is the best cure for many murderers; despite the fact that the Supreme Court has held it constitutional for the more atrocious murders; and despite the fact that more than a thousand condemned murderers now inhabit the nation’s death rows, the indefatigable and incessant litigation of abolitionist zealots has limited the number of actual executions to an average of about two a year in the twelve years since the Supreme Court held in Furman v. Georgia that the ultimate punishment of murderers is not per se “cruel and unusual” and thus is not in violation of the Eighth Amendment. Most of these few have been men—no women have been sentenced to death in recent years—who have decided they prefer death to long incarceration and have refused to authorize any more appeals or petitions for habeas corpus. (Even in these cases lawyers have sometimes argued that the views of their “clients” should be disregarded, since they do not know their own best interests.) Of five murderers executed in 1981, only one sought to avoid his fate.

The Supreme Court has lately attempted to limit the number of lengthy reviews of death sentences, but so far without much success. As Justice Powell wearily put it a few months ago in Kemp v. Smith:

This is the fourth time that this capital case has required action by this Court: once on direct appeal, once on state habeas corpus, once on federal habeas corpus, and now in Smith’s second federal habeas proceeding. Apart from rehearings, this case has been reviewed sixteen times by state and federal courts since Smith’s conviction in 1975.

One reason for the extreme difficulty of actually executing anyone is that the rule of res judicata—that once a case has been finally decided, it cannot be relitigated—does not apply to petitions for habeas corpus alleging some violation of a convict’s constitutional rights. He may file an infinite number of petitions alleging different violations (or, for that matter, the same ones); every petition, no matter how frivolous, will delay the execution for weeks or months, and its denial will be appealed, which takes even longer.

Another reason has to do with the complex procedures which the Supreme Court has in recent years required for consideration of aggravating and mitigating circumstances; these have so far proved surefire breeders of litigation, as has the inevitable contention that the particular convict has been more severely treated than others of equal viciousness. Another reason, according to van den Haag, is that judges, many of whom have been taught by liberal professors in college and law school, are more likely than ordinary people to be merciful to criminals.

The “liberal” attitude toward murderers is well exemplified by two famous cases, those of Warren Kimbro and Jack Henry Abbott. Kimbro, a Black Panther convicted of kidnapping, torturing, and murdering a suspected informer, was greeted as he left prison by Harvard’s Graduate School of Education, which welcomed him as an M.A. candidate, despite his lack of a college degree. (The Reverend William Sloane Coffin, Jr. said Kimbro’s trial was “legally right but morally wrong,” presumably meaning also that the kidnapping, torture, and murder were legally wrong but morally right.) Abbott, a convict who endeared himself to Norman Mailer and other literati by writing a book denouncing the prison system and bourgeois democracy in general, was paroled and led a life of literary celebrity until he killed another man and returned to the pen. His victim would be alive today if Abbott had been hanged in the first place.

These nonstop legal proceedings have produced one of the most curious of the abolitionist arguments: death is not a practical sanction, for the inevitable litigation makes prohibitive its cost in time and money. In effect: I have poured glue in the works of your watch; it is therefore worthless, and you ought to throw it away. By the same token, the abolitionists are quite capable of arguing that, since their efforts have made executions so infrequent, they have become an “unusual,” if not cruel, punishment. So long as the supply of eager lawyers holds out, then—and it shows no signs of drying up—it will remain a labor of Sisyphus to execute anyone, no matter how just and constitutional his sentence may be.

An academic debate on the subject might nonetheless be worthwhile if only to clarify the issues. Unfortunately, The Death Penalty presents few arguments, pro or con, which have not been heard before, and the book is thus unlikely to change anyone’s views. Few members of the large majority who favor the death penalty (known to their opponents as “retentionists”) will be converted by Conrad, and van den Haag’s reasoning, no matter how cogent and logical, will not change the minds of any abolitionists, for ultimately their opposition is not based on reason or logic but on emotion and what they call morality. If the debate is addressed to anyone, it is to the small number of people who have no opinion on the subject.



Both Conrad and van den Haag consider the death penalty in the light of the purposes of any type of punishment. The first is “retribution,” espoused particularly by Conrad. Apparently it means that the penalty should deprive the wrongdoer of the benefit of his crime and express society’s disapproval of his conduct. The death penalty accomplishes this, but so can lesser punishments. A second purpose is incapacitation. Execution achieves this goal more surely than imprisonment, for permanent incarceration exists mainly in theory, as shown by the case of Jack Abbott. Conrad, however, argues that the incapacitation of one murderer is useless, since another stands ready to take his place. (This implies that there must be a vacancy before a criminal can take up the trade of murder, although in fact it seems obvious that every execution means one fewer practicing murderer.)

A third purpose is rehabilitation. Though death does not exactly rehabilitate a killer, Conrad concedes that imprisonment rarely does either. There are murderers, such as the people who kill an unfaithful spouse or lover, who are very unlikely to do it again, but not because they have been rehabilitated. Jean Harris, who shot a lover who had grown tired of her, is an example. But people who commit crimes passionels have rarely been executed, even in the past, and could not today be constitutionally sentenced to death.

To these reasons for punishment one might add simple revenge, the normal human desire to see bad men get what is coming to them. But most people believe that the principal purpose of punishment lies elsewhere, in convincing other potential criminals that the benefits of the crime are outweighed by the risk of punishment. The two debaters in this book agree that the best way to achieve that goal is to make punishment swifter and more certain. At present the American criminal justice system is unsuccessful in both respects; most crimes go unpunished. In part the failure is a price we pay for due process of law, but much could be done to increase the likelihood of punishment without violating the Fifth Amendment. An increase in the severity of punishment also increases its deterrent effect: Conrad concedes that criminals fear a long prison term more than a short one.

The crucial question then becomes whether the death sentence deters murder more than the threat of twenty years or life in the penitentiary. Common sense suggests that it does, for the herculean legal efforts of almost all convicted murderers to avoid execution show that they fear it more than imprisonment. But the statistical evidence is inconclusive. Until comparatively modern times, statistics on crime practically did not exist. Abolitionists are fond of telling a venerable tale: in the 18th century, pickpockets, who if caught could be hanged, regularly worked the crowds watching public hangings. Neither van den Haag nor Conrad, however, knows the source of the story, which seems to be no more than a popular anecdote, wrongly attributed to Dr. Johnson. Even if the myth were true, it would prove nothing, for we do not know how many pickpockets there were in London in those days, or how many of them were hanged, or whether there would have been more without the hangings.

Modern statistics are better, but furnish no conclusive proof of the superior deterrent effect of the death penalty. Comparisons of the murder rates in jurisdictions which have capital punishment and in those which do not are not of much help, for there are too many other variables, such as the number of young males and the racial and socioeconomic mix in the respective populations. But Conrad is clearly wrong in maintaining that “there is not a jot of evidence” the death penalty deters murder more than incarceration. In 1973 Isaac Ehrlich applied the techniques of mathematical economics to the problem and concluded that every execution prevented seven or eight murders. Ever since, there has been a hot controversy between statisticians who agree with him and those who do not. So far as the argument is conducted in English rather than in mathematical formulas, Ehrlich seems to me to have somewhat the better of it. But his opponents may be right in saying that because of the complexity of the social phenomenon involved, we will never know with certainty.

Evidence of the deterrent effect of capital punishment is, of course, irrelevant to those who oppose it. Abolitionists say simply that killing people is wrong. The state should not, “in cold blood,” kill the most flagitious murderer, not even, some of them say, if his execution would save not merely seven, but 500 innocent lives.

What seems to me a much stronger argument against capital punishment, however, is the chance that an innocent man will be executed. Yet that chance is very small; I know of no modern case in which there seemed to me to be any real doubt of a condemned murderer’s guilt. Still, it cannot be said that such a thing is impossible. The only answer is that an unjust execution, if it should ever occur, should be treated as a variety of wrongful death, caused by the state, like being run over by a negligently driven Post Office truck, for which the victim’s survivors are entitled to compensation.

There are other arguments for abolition, some of which I suspect are not taken very seriously even by abolitionists. One is that execution is distressing to those who must carry it out. As Conrad writes, “The sense that killing people is wrong will rise in the mind of a decent man, no matter what the condemned man has done to merit his execution, [although] it is always possible to find tough and callous men to do the work. It is wrong to delegate these functions to such men.” But why? Sometimes toughness and callousness are necessary and desirable qualities, as with soldiers and surgeons, or, for that matter, judges. Nor are such qualities always needed. I dislike trapping mice, but I don’t think I would have flinched at springing the trap on Ernst Kaltenbrunner or Adolf Eichmann. (The Nazi war criminals are not mentioned by Conrad.) Another argument: execution prevents “reconciliation between society and the offender.” Baloney. Another: the criminal is deprived of his right to remorse and atonement. More baloney. Yet another: “The real agony is in the long wait for execution.” The wait could and should be made much shorter.

Finally, it is also asserted that a disproportionate number of blacks are sentenced to death. Indeed, racial discrimination was among the reasons advanced by a majority of the Supreme Court for invalidating the particular death sentences involved in Furman v. Georgia. But Conrad concedes that it is not true today. Blacks are overrepresented on death row because, for a variety of reasons, they are overrepresented among murderers. Yet all of the five men executed in 1981 were white.

There is no absolute proof that capital punishment saves the lives of innocent victims of potential murderers. But there is also no conclusive evidence that it does not do what common sense suggests that it does.



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