An Unemotional, Amoral Argument Against Capital Punishment

This past week, the state of Texas executed white supremacist John William King for the 1998 hate-crime of murdering an African American truck driver named James Byrd, Jr. While I can't say I personally mourned Mr. King's passing, I do object to the fact that we as a society murdered him in an act of primitive revenge unworthy of a so-called civilized society. And I was disturbed to see how many so-called liberals were cheering his execution. To me, the idea of a pro-capital punishment liberal makes as much sense as a pro-KKK civil rights activist.

But of course, as soon as one begins a debate about capital punishment, emotions immediately flare and the 'arguments' for and against rely very little on facts and logic and very much on appeals to our baser instincts. Inevitably, religion gets brought into the argument. As usual, either side of this moral argument (as with every other moral argument) can equally rely on their favorite holy book to support their position. Just as I could make equally strong arguments for or against rape, incest, slavery, murder, infanticide, and even polytheism using the Bible, for example, I could build a strong case both for and against capital punishment using that maddeningly inconsistent and morally ambiguous text. (Yet another reason I am not a believer.)

So let's just leave morality, emotion, and religion completely out of the debate, shall we? If none of these can give us clarity and each can be used equally easily by both sides, it seems illogical to rely on any of them to settle the argument. Let's just proceed with facts and evidence, and in the process dispel some myths and misunderstandings about capital punishment, to wit:

1) Its value as a deterrent to others. The argument here is based in human psychology. It's very simple: I don't want to die, so I will be less likely to commit a capital offense knowing that doing so could cost me my life. This argument shows a very poor understanding of both 1) the evidence we've accumulated about the deterrent value of capital punishment and 2) basic human psychology. To the first point, the most obvious flaw in the argument that it is a deterrent is the fact that the United States executes more people than all but five other countries (China, Saudi Arabia, Pakistan, Egypt, Somalia) and yet has the highest violent crime rate of any highly developed industrial country (by quite a wide margin). So if capital punishment is doing such a bang-up job of scaring potential murderers, why don't we have the sixth-lowest violent crime rate after those other countries who execute so many people? (Note that none of those other five countries is exactly a peaceful paradise either.)

But, you may understandably object, is it fair to compare us to other countries, given our other unique qualities, especially the ubiquity of firearms in the U.S.? OK, so let's compare internally. Do the states that execute the most have lower violent crime rates than non-death penalty states? Surely all those potential murderers are too scared to do the deed in bloodthirsty Texas, for example? Well, apparently they aren't. Texas has a homicide rate that is three times higher than Maine, which does not have the death penalty. And the most violent state in America, Louisiana, ranks 13th in total number of executions since 1976.

I believe this failure of capital punishment to act as a deterrent is strongly related to the second weakness of the deterrent argument itself: basic human psychology. First of all, even if a murderer is acting on a premeditated  plan, few criminals count on being caught, so I do not believe there is much mulling over the consequences going on here. In other words, the idea of being executed only impedes one's plot to the extent that one plans on getting caught in the first place.

But secondly and most importantly, most murders are not committed while the perpetrator is in a state of mind to consider the consequences in any rational way.

Let’s say I am an abusive husband intent on permanently silencing my wife and dispatching my children while I’m at it, I am hardly in the frame of mind to stop and carefully consider what this means for my life expectancy. That's the last thing on my mind until after the deed is done, at which point it is too late for the death penalty to weigh on my reasoning. 

But of course, once I have committed these murders, suddenly the death penalty is all I can think about. And what exactly am I now thinking? The police are closing in. A cop has just pulled me over. I have my gun at the ready. I strongly suspect he's pulled me over because the jig is up and there is an APB out on me and my vehicle. So if self-preservation is my goal, what is the logical thing for me to do in a state with the death penalty? Simple: murder the cop, because I know it's them or me. And I should also eliminate anyone else who stands in my way. 

And this is not a hypothetical at all: how many times have you read stories of murderers going on sprees after they kill their first victim(s), only to die in a hail of bullets in a shootout that often takes law-enforcement officers' and other innocent lives? But what's my smart play if I am in a non-death penalty state and the cops are closing in? Simple: try my best to get away, but, if all else fails, turn myself in peacefully, because that guarantees my survival (while violently resisting risks getting me shot).

The third and final issue with the appeal to the psychology of the human survival instinct is that it is by no means a given that a rational person will view life imprisonment as preferable to the death penalty. While some people might desperately seek to avoid it (and thus become even more violent once one crime has been committed, as above), others may find the prospect of execution as preferable to life imprisonment and thus not be deterred at all. Indeed, for people of this mentality, capital punishment may seem like an easy way out compared to the alternatives of either prison or suicide.

So in summary, the deterrent argument is supported neither by the actual evidence we've accumulated nor by what we know about human psychology and basic human nature. 

2) Its cost. Perhaps I should have led with this, given that it is most frequently the first non-emotional argument I hear. It is simple in its chilling calculus: "Why should I, an American taxpayer, have to pay to keep a murdering scumbag alive, fed, clothed, and housed for life?" It's extremely easy to dispense with this argument: lawfully killing people in a country with a strong commitment to rule of law is a very expensive business, and is far, far more expensive than simply imprisoning them for life. This is so well documented and such an easy calculation that I won't bother going into further detail when others have already done all the research.

Of course, the obvious counter to this argument is that we should simply streamline this process and kill our victims more quickly and efficiently. And all we have to do to achieve this goal of emulating countries like Iran, Saudi Arabia, North Korea, and China, is to completely abandon our centuries-long commitment to the rule of law and our tradition of juris prudence. In short, all we have to do shake off is our democracy and everything our country stands for. Easy peasy.

3) Its equality of application. Another argument typically thrown out to support the death penalty is that it serves to reinforce our collective moral beliefs by teaching citizens that actions have consequences. However, objectively evaluated, it teaches no such lesson at all. Quite the contrary: even a casual observer of our penal system would quickly conclude that the true lesson to be drawn is that in our society, at best, some actions have some consequences for some people some of the time. This is not a matter of debate. Simply look at how the death penalty is applied. According to the ACLU, people of color, for example, make up 43% of those executed since 1976, far out of proportion either to their population or to their crimes. And your skin color as an accused criminal isn't the only area in which the system is unfair: your skin color as a victim matters, too. People accused of killing white people are far more likely to be executed than people accused of killing people of other races. So if capital punishment is meant to be an expression of our values, what does it say about our values when it so clearly favors whites? I blush at the thought of answering that damning question.

4) Its reversibility. This takes no time to cover. There are two easily proven statements here: 1) the United States has often executed innocent people and 2) to my knowledge, death remains an irreversible condition. If both of these statements are accepted as true, and in the absence of a methodology to reverse the first fact going forward (quite impossible), then the death penalty cannot be called a workable solution for a society that claims to value justice. If we could magically ensure that all those convicted  of capital crimes are indeed guilty, we would "only" have the three issues above to contend with. But given that University of Michigan professor Samuel Gross estimates that up to 4% of current death row inmates may in fact be innocent of their crimes, I would say we're in no pending danger of having to fall back solely on those other factors.

So in conclusion, the death penalty is not a deterrent, is not cost-effective, is not evenly applied in a way that reflects our aspirational values, and is irreversible and thus cannot be fairly applied, given our imperfect system of determining true guilt. Therefore, the death penalty is, logically, an unacceptable option for any civilized and rational society. 

Quod Erat Demonstrandum.