A priest argued that the murderer kidnapper rapist ex-FedEx driver Tanner Horner deserved death for crimes so terrible even Stephen King wouldn’t allow himself to ponder them, but, said the priest, we ought not to execute Horner, even though there is no doubt whatsoever about his guilt, because why?
Because for many reasons, but first listed was that, the priest said, capital punishment does not deter crime.
This is false. Executions certainly deter, and reduce, crime.
There are many arguments about the morality of capital punishment, all worthy of thought. But you and I will ignore all these and only examine the argument that justly executing a convicted criminal, known to be guilty of a terrible crime, deters crime more than leaving the criminal alive.
We are accepting here that we are at least morally certain (“beyond reasonable doubt”) of a criminal’s guilt, as we usually are, and certainly are in the case of Horner. But even when this is false in rare cases, and that an innocent man is incorrectly executed, it is still a separate question whether this mistaken execution deterred crime, because at the time of the execution his guilt was assumed proved. It is extremely unlikely a person thinking of committing a new crime and worried about being executed if caught would say to himself, “I heard Jones, who was executed, was recently and posthumously exonerated because of new evidence; therefore, I shall commit this crime and not worry about being executed if caught.” If anything, the injustice of executing, on very rare occasions, an innocent man has an even greater deterrence effect.
I make the artificial but helpful distinction between capital punishment, the just, certain and timely execution of a convicted criminal, and of the death penalty, which is also a just sentence of death but in which it is known and expected the execution may never occur because of endless appeal, activism, pandering, and so forth. By “certain execution” in capital punishment I mean that the criminal sentenced to capital punishment himself knows, and society also knows, that the execution will surely happen soon after conviction, barring rare and extraordinary events (say, a prison riot in which our man escapes).
Capital punishment with certainty deters crime, in the two ways of deterrence to be defined next. The death penalty also deters crime, but to a far lesser extent. Let’s now think about what deterrence means.
Deterrence
Consider Kenneth McDuff, who was convicted and known to be guilty of killing three teens, capital crimes. He was sentenced to death, but was not executed, and indeed was eventually let out of prison. When released, he went on to murder several other women. McDuff is far from alone: endless examples exist. Some can be found in the aptly titled article “Paroled Murderers Who Were Freed Only to Kill Again“. If McDuff, and these others, were executed after their first convictions, their post-conviction crimes would have been deterred.
That is our first sense of deterrence: the necessary truth that if the criminal is executed he could not go on to commit more crimes: these crimes have been deterred. Thus it is trivially true that capital punishment deters crime—in this strong sense.
Here is an important, but often unacknowledged, second form of strong deterrence. If a heinous offender is executed swiftly, this eliminates all crime against him from vigilantes in prison. Consider there are many now openly saying they hope Tanner Horner (and men like Horner) is murdered, or at least tortured, in prison. They recognize Horner deserves death, but they also realize the state is squeamish and cannot bear to pull the trigger, let alone form a firing squad. The effeminate officials charged with carrying out Horner’s sentence would not feel sadness were Horner murdered, or at least physically punished.
This a nauseating indictment on society. We willingly put temptation in front of bad men and hope, often secretly, these bad men will do our “dirty work” for us. We will and long for these crimes, which could have been deterred had the death-deserving criminal been quickly executed. The execution deters these crimes. These unnecessary crimes are the worst sort because of the cowardly manner in which they are created. We all share in their guilt.
These hoped-for crimes also further weaken the rule of law in the obvious way, and makes the system more anarchical, which in turn causes even more crime.
Consider Saquon Black, who has been arrested many times for various crimes, including some that would have merited capital punishment were it not for panderous plea bargaining. Black was eventually released, sometimes immediately, after every new crime. Yet he has just moved to a state which reinstituted capital punishment, and in which it is well publicized criminals are being executed shortly after their convictions, with no exceptions. Black pondered this and then reconsidered holding up the gas station.
This is deterrence of the soft kind, in which would-be criminals avoid crimes which could lead to their own deaths for fear of punishment.
The argument is that the more likely the criminal thinks he will be executed, the greater the deterrence effect. Up to a limit. The limit is because “crimes of passion” or insanity or unthinking fury will always be with us. No formal program can wholly eliminate man’s nature: he often acts heedless of consequence.
Which means deterrence of the soft kind does not necessarily (in the logical sense) deter crime, but does so only to a lesser extent. Under capital punishment, would-be criminals are more likely to think (and ought to think) they will executed. This is mitigated by the possibility of alternate sentences like “life in prison”, which the criminal might think he could plea to. Under the death penalty, the criminal is more hopeful: he might think “life in prison” means, as it often does, “a short stay and eventual release”.
States of Thought
Deterrence, then, is a function of the minds of criminals and would-be offenders, of what they believe they will suffer if they act in certain ways. Only under capital punishment, as defined here, are criminals expected to know (a strong word!) they will pay the ultimate price, and pay it soon after conviction. Under the death penalty, criminals know the risk of execution is low, and might even believe it is nonexistent, which is true in some states, i.e. those which have outlawed executions. That is, criminals know that in some locales executions are forbidden, and even that “life” sentences means “not life”, so there can be only limited deterrence.
That deterrence is a function of what would-be offenders think means it is difficult to demonstrate in individual cases, because it is always hard to prove with absolute certainty what is on a man’s mind. And if that is true, which it is, it grows next to impossible to guess what was on the mind of millions of men. Which states of mind we need to know, because we are supposing some would-be criminals give strong probability to their own deaths were they to commit crimes, but which because of that reasoning do not offend. How can we measure how many crimes were not committed due to fear of punishment? The answer is we cannot. We must instead rely on arguments like those given above.
Yet some think these measures can be had, if only statistically. There have been many studies that seek to prove the death penalty (or capital punishment) deters or does not deter, but all suffer the fatal flaw that the state of men’s minds are never known when crimes are not committed.
Bad Statistics
What is attempted are things like looking at rates of capital-punishment-worthy crimes before and after the death penalty was instituted. But all studies are forms of the epidemiologist fallacy. This happens when a researcher says “X causes Y”, but where X is never measured, though a proxy for X is stated as if it were X, and the cause is “confirmed” by statistical testing (which is always fallacious). Here X must be the state of men’s minds, which of course cannot not measured. The proxy for X is the law, usually the death penalty, or something really vague like “economics” (there are some models that put things like GDP in them, as if criminals thing of this odd statistic before committing crimes).
Add to that the changing boundaries of culture, mandated by for instance open-borders, means separating out one consistent cause from ever-varying signals cannot be done. Changing demographics and culture is what makes comparing things like murder rates across countries of limited value. Singapore has the lowest measured rate, and they of course have capital punishment. Jamaica has the death penalty, too, but has the highest measured murder rate. Clearly, other things besides known punishments account for the difference in rates. But some of these things we are in polite society forbidden to discuss.
Capital punishment, as defined here, does not exist anywhere now in the United States. The death penalty does, and only in limited form. Executions are nowhere “swift”. Any would-be criminal, even in states with the death penalty, is justified in thinking there is an excellent chance he himself will not be executed, even if sentenced to death. And if he knows himself to be an Official Victim (such as being black), he could rightly reason the minuscule chance of being executed shrinks even further. Execution is the longest of long-shots. Deterrence is still possible, and surely happens in some minds, but the effect is obviously much weaker.
These facts lead Daniel Nagin to write, in what is I think the most-cited review paper in deterrence studies, “Studies of the deterrent effect of capital punishment provide no useful information on the topic”. That bland conclusion is exactly what we should expect, given the arguments above.
The Consequences of Inaction
Yet given our knowledge of the nature of man we can still conclude that fear of certain and swift execution deters. Not in every case, as acknowledged above, but to good and reasonable extent. It then follows that lack of such punishment leads to an increase is terrible crime.
Steven Goldberg wrote in When Wish Replaces Thought:
But in the case of penalties, we have an enormous amount of both informal and formal evidence—from everday experience of socializing children and limiting adult behavior and from such “experiments” as increasing the fees for parking violations—that, as a general rule, the greater a punishment, the fewer people will behave in the punished way. Thus, it is perfectly reasonable to expect that the death penalty would have a more dissuasive effect than would life imprisonment and there is no a priori reason to believe that the increase from the threat of life imprisonment to that of death fails to dissuade anyone from committing murder.
Goldberg continues this line in Fads and Fallacies in the Social Sciences (I heartily recommend both books), wondering what follows from either side, pro- and anti-death penalty, being wrong:
Let’s say that that proponent of the death penalty is incorrect in his belief that the death penalty does deter and we do invoke the death penalty. “All” we have done is execute murderers who should not have been executed (if deterrence in the justification), and, undeniably and horribly, a very few people who were innocent.
But now let’s say that the opponent of the death penalty is incorrect in his belief that the death penalty doesn’t deter and we don’t invoke the death penalty. We will be responsible for the deaths of innocent people—those whose deaths would have been prevented by the deterrent effect of the death penalty.
The asymmetry is obvious and leads to a real-life Trolley problem. Do we turn away, neglect our duty and accept that many lives will be lost from crime, none of which is committed by ourselves, we being self-awarded good people, so we can pretend we had no hand in them? Or do we stain our hands and execute the few who justly have it coming, which in terms of raw calculus leads to a far, far lower body count?
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