The Death Penalty

In all things, the existence of both stick and carrot is almost certainly going to be the most effective method of achieving the desired goal. But, for just as necessary as those two things are, they’re only of value if they are used more-or-less consistently. If you don’t punish half the time or you don’t reward half the time, the odds are decently likely that the people will misbehave. They simply can’t take the rules seriously when they don’t have faith in its reality. That effect must also be immediate. If it doesn’t happen for 20 years, its reality lowers yet again.

Given the paucity of people who are executed each year in the US and the period of time it takes from arrest to execution, it should then be no surprise that the death penalty — as currently practiced — is entirely ineffective at deterring criminal behavior.

Obviously, one method of dealing with this would be to increase the number of cases that lead to the death penalty and to see to it that the execution is accomplished immediately and consistently. But otherwise, the question becomes one of simple economics. Even if the death penalty is ineffective, if it rids us of the expense of caring for a prisoner for 50-60 years, it is still at least useful to keep it around.

Who Gets the Death Penalty?

You might think that the death penalty comes as a result of murdering people. You took peoples’ lives and hence yours is taken as well. But actually one may not prosecute for capital punishment under current law unless certain conditions have been met to constitute “aggravated murder”. Here, for example, are the requirements for having committed aggravated murder in Oregon. To be non-technical, I think we can sum it up as saying that you must have done something particularly heinous.

So if, for example, you were to break into someone’s house and murder the owners and steal everything they owned, you would probably not be charged with the death penalty. Unless they had a little girl and you killed her too, or unless you wrote a Satanic poem in their blood on the wall, or unless someone paid you to assassinate them. Overall these mitigating factors are fairly rare, taking up only a small and insignificant percentage of all cases of explicit murder.

In those cases which merit capital punishment, then, the legal procedure for prosecuting that case as a Death Penalty Case (DPC) are different from and more demanding than a case to prosecute for general murder. Even though a case might very well constitute aggravated murder it’s quite possible that the DA may choose that it is not worth going through the hassle of pursuing the case as a DPC; he might personally be against the death penalty as a sentence and again choose not to pursue it. I think it safe to presume that the most likely instance for a DA to choose to pursue a case as a DPC is if the murder riled the local populace. If it passed by with the media hardly having noticed it or the general public not seeming to care, the chances are probably fairly good that capital punishment will not be pursued.

In end result, the people who are sentenced to death are those who committed a heinous act and who incurred the public wrath. That is hardly a rigorous or consistent methodology. And given the rarity of cases of aggravated murder, even if you were to prosecute each one fully, it seems likely that there still wouldn’t be any effective difference on the overall violent crime rate.

Many would probably also note that those sentenced with the death penalty are poor and can’t afford a proper lawyer — which would factor in to the DA’s choice to pursue a more complicated case and his ability to actually win it. While that may be true, I would personally doubt that this is a significant factor since the wealthy are far less likely to commit a heinous crime. A certain amount of insanity and stupidity is (generally) necessary to commit a heinous act, which precludes the ability to rise all that high on the social ladder.

The Supreme Court

Until 1972, what cases did or did not constitute viability for capital punishment was principally a matter of the state. Rape, for example, was held to be a valid candidate for possible execution is some areas. The problem with this, according to the Supreme Court in Furman v. Georgia was that there was no identifiable rule for when a case merited capital punishment and when it did not. 9 rapists might get a month in jail while 1 is sentenced to death. Many also noted that statistically it would be the black rapist of a white woman that would be the case which led to sentencing of death, the probably racist basis for which result is something that was definitely forbidden. Throughout the nation, all death penalty cases were overturned and a moratorium was put on capital punishment until rigorous qualifications had been established. The upshot of this was for states to create the previously mentioned heinousness creed, a set of qualifications sufficiently restricted that no one could argue that the case was not without merit.

Four years later, there was then the case of Gregg v. Georgia, where it was decided that the methodology of prosecuting a capital punishment case must be sufficiently rigorous that no one could argue that anything other than the heinousness of the crime was on trial.

The Upshot

In the attempt to make everything very rigorous and tightly defined, the end result is that nearly all successful convictions are overturned one way or another. 75% are commuted to a lower sentence and 7% are proved innocent in retrial. Because DAs do not prosecute a case unless it has caught the public ire — which is a capricious standard — and because the rules for a successful continuance of the sentencing all the way to execution are that there have been no capriciousness, in end result nearly all cases are proved to have been capricious and are slapped down, just as you would expect.

But more importantly, those convicted in a DPC nearly always appeal the case and this cost is entirely on the taxpayer. The original case will have cost more than a regular murder trial, and there may be a number of appeals numbering in the dozens. Ultimately, we’re talking of values in the millions of dollars for these trials, appeals preparations, appeals reviews, and retrials.

Housing an inmate in prison costs something like $55 a day or roughly $1.2 million for someone housed for 60 years. Just the trial to initially convict someone in a death penalty case costs about $670,000 for extra lawyer time and $850,000 for extra trial time for a total of $1.5 million. The cost of an appeal in a capital punishment case appears to be about 150% that of a regular appeal, each costing perhaps a quarter of a million. Unfortunately, I can’t find a piece of data that I once found from (I believe) the Texas appeals court which showed that the average number of appeals by a person on death row was 16X higher than other inmates. With most states having an automatic appeal filed at the end of a death penalty case, we’re looking at several million more dollars per prisoner — all just to have their case commuted to life without parole, while still incurring the cost.

One can also theorize that since a prosecutor might only seek the death penalty a handful of times in his life — maybe even only once — he has and the court both have limited experience with following the proper procedure for trying such a case, which also makes it more likely that there will be some technical issue which leads to the case being overturned on appeals. Whereas, the lawyers who oversee the appeal of capital punishment cases are probably dedicated experts who do nothing else, possibly driven by a personal fiery passion for ridding the world of the sentence.

Conclusion

Personally, I would support the death penalty, principally on financial grounds — it should be cheaper to kill someone who is almost certainly a murderer than to house them for the rest of their life. The Supreme Court and the states interpretation of the rules laid out by the Supreme Court, however, have almost certainly made the death penalty infeasible.

Legally speaking, I suspect that you could declare all cases of murder as death penalty cases, and that this would be the key to solving the pertinent issues. Reforming the appeals process would naturally follow, on its own. I don’t see such a thing ever happening though versus popular dislike for generalized use of capital punishment. In the end, the war has already been lost.