Apr 99

Views expressed are those of the authors, not necessarily of the AFSC.

Thinking About the Death Penalty Today

Hugo Bedau, author with Michael Radelet and Constance Putnam of In Spite of Innocence, teaches philosophy at Tufts University.

If we look at the death penalty on the national scene, the quickest way to get the most reliable picture is to consider the following numbers:

22,000
15,000
9,000
2-4,000
300
50

What do these numbers represent? Let's take them from the top. Twenty-two thousand is roughly the annual average in the 1990s of the victims of criminal homicide (consisting of 1st and 2nd degree murder and voluntary manslaughter). The next figure-15,000-is the average number of persons arrested for criminal homicide. The attrition shows that the police are about only 65% effective in arresting suspects for homicide. Nine thousand represents the annual average in the 1990s of persons convicted of some form of criminal homicide. Not everyone arrested for homicide goes to trial, and not everyone tried gets convicted. The next number-the only fuzzy number on the list-represents an estimate of the annual average number in the 1990s of "death-eligible" defendants, persons convicted of murder who meet the further conditions of "aggravation" that make them eligible for a death sentence. The attrition here is really significant; prosecutors, juries, and trial judges accept plea bargains (thus removing the defendant from risk of execution) or they find the defendant guilty of 2nd degree murder or manslaughter. The drop to 300 represents the average annual number of death sentences actually issued-about 10% of all those who could be sentenced to death. Finally, as you suspected, the last number-50-is the annual average in the 1990s of persons actually executed. (The source for all these numbers is official US government reports available in any major public or university library. The sole exception is the fuzzy number of those who are death-eligible; it is based on research by David Baldus.)

How should these figures be interpreted? Let's consider the possibilities as seen first by someone who supports the death penalty. There are two interpretations available from that perspective. One is to complain vociferously that the nation needs more, many more death sentences and executions, in order to produce adequate incapacitation, deterrence, and retribution. But there are severe problems facing anyone who takes this view. A series of rulings by the Supreme Court since the early 1970s raises hurdles of various sorts against increasing the number of death sentences and the number of executions. And there are obviously factors at work within the criminal justice system that explain this pattern of attrition from 22,000 to 50. I submit that a close study of these factors will reveal that the public's much-vaunted love affair with the executioner (given public opinion data) is actually considerably overrated, and little if anything can be done to increase these numbers at the bottom of my list. When push comes to shove in the courtroom, the public just does not believe in execution as the just retribution for murder. The public just does not believe that only death for murderers gives us adequate protection through incapacitation and deterrence. Whatever the public may tell pollsters, the figures show that many other factors are more important in the minds of those who actually run the criminal justice system than the vaunted pay-back and special protection that only executions of murderers are supposed to give.

The other interpretation is more complacent: Since the death penalty was never intended to apply to all killers, what we have in these numbers is a careful winnowing of the worst from among the bad. We have, in short, just about the right ratio of death sentences and executions to arrests and convictions for murder. Now the problem with this interpretation is that the facts just do not support it. The facts show that the 3500 persons on death row are not the worst among the bad; as Stephen Bright has put it, in the US today a capital defendent gets the chair or the needle not for the worst crime, but for the worst lawyer. No one can seriously maintain that the 300 or so sentenced to death and the 50 or so executed are the worst culled from the bad.

Now suppose you oppose the death penalty (as I do). How might you interpret these figures? There are two possibilities. One is that the nearer we get to the end of the death penalty, the more entrenched is what remains. The entire history for two centuries in this country of the movement to abolish the death penalty has been a series of compromises with its defenders. Degrees of murder were introduced two centuries ago in order to reduce the number of persons subject to the death penalty; jury discretion in capital sentencing has the same history. Both have made it harder for governors to commute death sentences and appellate courts to overturn capital verdicts and sentences because they give a patina of democratic decision-making to the entire process that courts and governors are reluctant to tamper with. The same is or will be true of the tidy-up operations on our death penalty system recommended by the House of Delegates of the American Bar Association and most recently in Illinois by the governor. Improving the procedures for death penalty cases just protects what remains of that system even more stoutly.

But there is another interpretation death penalty abolitionists might want to consider. The death penalty in our nation is on the defensive today more intensely and more broadly than at any time in the past half century. Everyone knows the shabby practices that lead to wrongful convictions and the risk of wrongful executions. We know that the death penalty as actually administered is a disgrace to our nation's pretensions as the world leader in the protection of human rights. We know that it is under attack from all directions. Its friends are decreasingly few. The numbers confirm the insignificant role the death penalty now plays in the "war against crime." The massive attrition from 22,000 to 50 shows that the death penalty has become nothing but a symbolic gesture; it has no other function because the numbers at the end are just too small to support the empirical or moral benefits its defenders claim. Dare we add that the spectacular drop from 22,000 to 50 shows we have all but won our war against this particular form of inhumanity? Cheer up! The glass is not half full, it's half empty and on the way to being completely empty.