Knowledge And Decisions

Virtually all researchers on both sides of the capital punishment controversy are agreed that there are problems inherent in the data²⁸¹ and problems inherent in the choice of statistical techniques to analyze the data.²⁸² The very definition of “murder” creates problems. Data are usually available on “homicide,” which includes accidental vehicular homicide and negligent manslaughter as well as murder and nonnegligent manslaughter, and “records are not generally separated according to the type of homicide committed.”²⁸³ No one expects the death penalty for first-degree murder to deter automobile accident fatalities, which are also included in the data being analyzed. Moreover, the drastic decline and — in some years — total disappearance of executions over the past generation²⁸⁴ creates statistical problems due to small (or nonexistent) samples of one of the variables. There has been no period of history with both good data on first-degree murder and also a substantial number of executions. Finally, the period in which the death penalty declined and virtually disappeared was also a period when the risk of any punishment was also declining. In short, there is no factual proof either way, despite the consensual dogma that capital punishment does not deter.

As in other policy areas, however, the question is not what should be decided, but who should decide what should be done. Courts have largely appropriated that legislative function under the guise of “interpreting” the Constitution. What is far more clear is that a declining incidence of punishment in general (and capital punishment in particular) over the past generation — but especially during the 1960s — has been accompanied by a rising rate of violent crime in general, and murder in particular. International comparisons buttress this conclusion and are also consistent with the conclusion that it is not the words on law books which constitute deterrence. American laws are among the most severe in the Western world in theory and the least applied in practice, and the United States has far higher rates of violent crime (especially murder) than countries with less severe laws that are applied more often. Various historic, cultural and other differences among nations make international comparisons more difficult, but it is significant that the spread of American legal theories and practices to other countries has been accompanied by American results in court congestion and rises in crime rates. The influence of legal and social theorists on criminal law practices has also spread beyond the United States, and these “experts” are apparently no more open to factual evidence counter to their consensual beliefs abroad than in the United States.²⁸⁵

Throughout the Western world, capital punishment has been either explicitly abolished or has dwindled to the vanishing point in practice. The United States was already part of the general pattern of a declining use of capital punishment when the Supreme Court in 1972 declared the death penalty unconstitutional as “cruel and unusual punishment” forbidden by the Eighth Amendment — in some instances.²⁸⁶ Since the Eighth Amendment consists of only one sentence²⁸⁷ and contains no exceptions, the partial outlawing of the death penalty is even more obviously a judicial improvisation than the decision itself. The fallacy of confusing decisiveness with exactness runs through much of the Supreme Court testimony and questioning as to what exactly was meant by “cruel and unusual.”²⁸⁸ What clearly was not meant was the death penalty. The Fifth Amendment, passed at the same time as the Eighth Amendment, recognized the death penalty and required only that “due process” precede it. The states which ratified both amendments had death penalty laws which they — and others — applied for almost two centuries before they were stopped by a five to four Supreme Court decision (with nine separate opinions) saying that it was unconstitutional in some circumstances. The particular circumstances that would make it unconstitutional have themselves varied, so that in practice death penalties are unconstitutional when a particular Supreme Court chooses to object to the procedures used to reach verdicts. It is, in effect, the laws and the verdicts which have been ruled unconstitutional, under the guise of ruling the punishment unconstitutional as “disproportionate to the offense” or as capriciously applied — neither of which are characteristics of punishment itself.

Several arguments have been emphasized by opponents of the death penalty: (1) it is immoral for the state to deliberately kill, (2) capital punishment does not deter, (3) errors are irrevocable, (4) the application of the death penalty has been arbitrary and capricious in practice, and (5) blacks have been disproportionately overrepresented among those executed, showing the racial bias of the system.