There is currently a bit of a controversy in the state of Florida involving a high-profile murder case. A man named Markeith Loyd killed his pregnant girlfriend, and later killed an Orlando Police officer who attempted to arrest him. After a manhunt that took the life of another cop, he was finally arrested. Elected State Attorney Aramis Ayala announced that she would not seek the death penalty in the case, not because there wasn’t a good chance of getting a capital conviction (Florida newly requires a unanimous jury verdict for that sentence, rather than 10 of 12 jurors by the previous rule). Instead, she said that she will not pursue the death penalty in any capital case, regardless of the details. (Indeed, it’s hard to imagine a case more vile than this one, or where the perpetrator’s guilt is any more certain.) The governor of the state of Florida, Rick Scott, exercised a power granted him by the legislature in removing Ayala from the case.
This morning’s lead article in the Orlando Sentinel is Death Penalty Debate Endures – with the Ayala controversy raging, the paper does a story on the death penalty “debate” – though the article offers very little on the pro-death penalty side. (It should be noted that the Sentinel earlier penned an editorial critical of Ayala’s decision to rewrite Florida’s laws by her refusal to enforce them.) Instead, the article focuses on academic studies that are inconclusive about the deterrent effect of the death penalty relative to life in prison for capital crimes.
The “lack of a deterrent” debating point is an unfortunate red herring in arguments of this type. Foolishly, pro-death penalty advocates also fail to recognize the irrelevant nature of this argument, and are suckered into attempting to counter the argument. That’s a fool’s mission. If, indeed, the antis are correct that the death penalty doesn’t lower the murder rate, they win the point, but the point has no bearing on the question of whether Florida or any other state should have a death penalty. If, indeed, the antis are wrong and the death penalty has a deterrent effect, that win for the pro side is equally Pyrrhic.
Here’s 3 reasons why it’s a red herring.
1. Whether the death penalty deters the first murder, execution prevents the next
The next time someone argues that the death penalty isn’t a deterrent, ask them if they think someone who’s been executed for murder is likely to kill again.
This is more than just a witty comeback. It’s obviously true. Not all murderers are likely to commit another murder, but someone like Markeith Loyd clearly is – after killing his girlfriend, he then killed a complete stranger.
It’s true that someone put away for life in prison is unlikely to kill again – but not everyone sentenced to life in prison stays in prison for life. And even a prisoner behind bars for life might commit a murder or other violent crime against guards or other inmates.
2. By this reasoning, no one should be punished for anything
Does the death penalty deter murder? Last time I checked, Florida has a death penalty, and murders still happen. So, no. On the other hand, does prison time deter murder? Last time I checked, prison time is a possible sentence for murder in all 50 states, and all 50 states experience murder. So, no.
How can someone argue that the failure of the death penalty to deter murder indicates that we should not have a death penalty? By the same reasoning we shouldn’t imprison people either.
But wait, dummy, that’s not the argument. The argument is that since the death penalty doesn’t do any better job at deterrence than imprisonment, we should get rid of the death penalty.
But wait, dummy. Why can’t I just flip the argument around? Since imprisonment does no better at deterrence than the death penalty, we should just execute everyone. In fact, by point #1 above, we know that the death penalty must do a little better than imprisonment, since an executed murderer is deterred from killing again.
But wait, dummy. The point is that since the two punishments are equivalent in terms of deterrence, we should go with imprisonment, which is less expensive and which prevents the ultimate mistake of executing someone who is actually not guilty.
But wait, dummy, you’ve just proven my point. The deterrence issue isn’t relevant at all. This is really about the expense of capital cases and the possibility that innocent people will be executed. Why didn’t you say so in the first place? Why the red herring?
If the issue is the expense of capital cases and the concern of innocent people being put to death (which I grant is a bigger mistake than the still-horrifying mistake of locking innocent people up for life), then we aren’t having a death penalty debate at all. We’re having a “how can we make our judicial process less expensive and more accurate” debate. Or maybe we’re not having that debate but we should be. Hence the red herring charge.
3. Justice isn’t about deterrence, it’s about… justice
But my main issue with the deterrence argument is that it commits the biggest fallacy about what sentencing is all about. People are often confused about this. They think that our prison system is in place to “rehabilitate” people or to ensure “public safety” or to “deter future crimes”. These may well be reasonable secondary goals of the criminal justice system, but they all must play second fiddle to the primary goal: that of administering justice.
What is justice? Justice is well-symbolized by the emblem of our court system: the balance. Justice is about proportionality. Justice is about taking from the perpetrator of the crime that which is in proportion to what the criminal took from some law-abiding member of society.
Although “an eye for an eye, a tooth for a tooth” is one type of proportionality, justice does not require equality of consequences, only proportionality. Someone who commits assault – beating someone up – need not be repaid by society by being themselves beaten up. Justice is satisfied just as well by any proportionate consequence, which might be a heavy fine, hours of community service, or jail time.
This is not to say it is anything approaching “easy” to determine proportional punishment. The pendulum has swung in many directions, from lenient to punitive. It’s constantly swinging, as legislatures, judges, jurors, and the electorate all have various degrees of input to that process. Given this constant flux, it is understandable that there is a debate about the appropriate just sentence for any crime, much less murder. And yet when the proportionality is egregiously wrong, we know it, which is why the so-called dumpster rape case at Stanford – where a rapist was given a 6-month sentence for a hideous sexual assault – there is an understandable uproar.
This is a big deal question. But the big deal is entirely one of justice – of proportionality – and considerations of public safety, deterrence, and the possibility of saving Markeith Loyd’s soul are irrelevant to it. Whether Ayala’s stance is right or wrong in the Loyd case has far less to do with statistics of murder in death penalty vs. non-death penalty states than it has to do with our beliefs about civics – should a popularly-elected state attorney have the right to decide the proportionality issue for her district, or is this issue something better defined by state legislatures and the juries who actually hear the case? That’s a big deal question too, and it’s another one for which the deterrence question is a red herring.
Consequences of ditching the herring
For those of us who are pro-death penalty, I encourage us to adopt the proper view of the purpose of the criminal justice system – proportionality of consequences – and thus refuse to be suckered into defending the notion that the death penalty is an effective deterrent.
However, if we do this, in addition to gaining the victory of being able to ignore academic studies showing it is not a deterrent, we must play fair and also accept any uncomfortable facts this stance provides.
There are 3 of these as well. Namely:
- Since justice does not require an eye for an eye, we must be satisfied with the “will of the people” in determining whether or not life in prison can be seen as always providing for proportionality. In my mind there are cases where this is simply not the case, but if I am in the minority in my state, then so be it.
- Justice not only implies balance, it also implies fairness. A compelling case can be made that two murderers in the same jurisdiction may not be given equal probability of the ultimate sentence based on factors irrelevant to the case (such as the race of the perpetrator). If this is found to be the case, action must be taken to insure fairness.
- In an area of uncertainty, it is not possible to construct a perfect decision making process. This is a mathematical certainty. Put more plainly, any conceivable criminal justice system will have some level of false positives in which innocent people are found guilty of a crime. False positives become less probable the more stringent the criterion for finding a perpetrator guilty. Since the consequences of the death penalty are greater than any other sentence in our system, the consequences of a false positive are more severe in capital cases. Ergo, it is just to require higher levels of proof for capital cases than for other murder cases.
When an anti makes the deterrence argument, refute it. But when they make the “innocent people could be executed” argument, or the “black murderers are more likely to be executed than white murders” argument, listen to it. These are not unanswerable arguments against the death penalty, but they are serious arguments against it, and justice demands addressing those concerns.