Knowledge And Decisions

Because executions take place in only a fraction of the convictions for capital crimes, opponents of capital punishment have claimed that the condemned were chosen “capriciously,” “freakishly,” “arbitrarily,” or at random, or with no logic or justice.²⁹⁴ Justice, of course, has many dimensions, of which intracriminal equity is only one; nor is it obvious why intracriminal equity should be the sole or overriding consideration. If this argument were taken seriously and applied seriously, it would be impossible to punish any criminals for any crime, in a system with different juries — which is to say, in all possible legal systems, as long as human beings are mortal. Barring a single, immortal, jury to hear all criminal cases, intracriminal equity can never be carried to perfection, but only into regions of negative returns, in any system of justice concerned also with other kinds of equity, including victims and the public.

To argue that the degree of intracriminal equity can be directly deduced from numbers and percentages is to repeat the fallacy in “affirmative action” cases of presupposing that numbers collected at a given institution are caused by that institution. If people differ in the quantity or manner of their crimes, they will differ also in their conviction and sentencing statistics, even if judges and juries were all totally impartial and just. We know that such perfection is not to be found among judges and juries, any more than among other groups of human beings, and in particular cases — blacks facing all-white juries in the South being the classic example — the reality has sometimes been very remote from the ideal. However, this is based on history and observations, not on the statistics cited as evidence and used to give it all a “scientific” appearance. If statistics, as such, are to be taken seriously, then a much ignored statistic must also be included: more black people are murdered than whites — that is, there are more black murder victims in absolute numbers than white murder victims,²⁹⁵ even though blacks are only about 12 percent of the population. Moreover, murder is usually not across racial lines, involving as it often does family members and friends. Against that background, the statistic that blacks are overrepresented among those executed assumes a different dimension, since blacks are also grossly overrepresented among the victims. A recent study in the north found persons who commit murder about equally likely to be executed, whether they are black or white.²⁹⁶ It is one thing to lament historic injustices; it is another to use them to misrepresent current empirical data.

Even in racially homogeneous societies there are undoubtedly differences in murder rates among very different social groups. Indeed, in the United States there are vast differences in murder rates between men and women.²⁹⁷ Even in the absence of such evidence, however, anyone with any humility or sense of common humanity must recognize that, if raised under sufficiently bad conditions — taught no difference between right and wrong, and growing up in an environment where violence was not only accepted but admired — that he, too, could have grown up into the kind of person with whom no society can cope. In some ultimate ethical sense, “there but for the grace of God go I.” It would be inexcusable even to shoot a mad dog if we knew how to catch him readily and safely, and cure him instantly. We shoot mad dogs only because of our own inherent limitations as human beings. There is no need to apologize for this — and certainly no need to pretend to more knowledge than we have, whether to “rehabilitate” a murderer or to eliminate “root causes” of crime. We do not play God when we act — as we must — within our limitations. We play God when we pretend to an omniscience and a range of options we do not in fact possess.