Deterring Homicides With the Death Penalty

The remarkable thing about the death penalty is why anyone would think it doesn’t deter murder. No one wants to die. Why wouldn’t the fear of death make people think twice?

Liberals spend a great deal of time running around this point. The best they can come up with is that murderers are stupid. They don’t think. They don’t plan. They act on impulse. Murders are "crimes of passion." Executing people is only a "barbaric ritual" that does no good.

Once upon a time there were some grounds for this argument. By the early 1960s, almost 90% of murders were "acquaintance" crimes involving friends or relatives. The most common scenario was an argument that escalated into deadly violence. True, it might involve a romantic rivalry or two casually acquainted people arguing over a card game. But these were "crimes of passion," liberals said. They couldn’t be deterred.

And so, beginning with the U.S. Supreme Court’s "incorporation" of the 4th and 5th Amendments into state criminal proceedings in the early 1960s and ending with the outright overturn of all state death penalties in 1972, executions ground to a halt.

The results can be seen in the accompanying graph. The murder rate had peaked in 1933 during Prohibition violence and executions peaked two years later at 200-about four every week. As gang violence subsided, murders and executions followed each other down at a steady pace until the late 1950s and early 1960s when the murder rate reached its lowest level in history.

Then the upswing started. Executions dropped precipitously after 1962 when the Supreme Court started intervening on the basis of Mapp v Ohio (1961), Gideon v Wainwright (1963) and Miranda v Arizona (1966). After 1966, the murder rate soared to unprecedented heights, peaking in 1974, 1980, and again in 1991 before finally dropping again precipitously-when executions were resumed.

What caused this upsurge? There is a fairly simple explanation. Liberals were probably right in arguing in the early 1960s that capital punishment could not deter the 90% of murders that occurred among relatives and acquaintances. What they did not perceive is the murders that were being deterred. These were the "stranger" or "felony" murders that have since come to dominate the murder statistics.

From the criminal’s point of view, the logic is fairly simple. When you are committing a felony-either a rape or robbery-there is a certain calculated advantage in murdering your victim. The victim, after all, is also the principal witness to the crime. He or she is the person most likely to put you in jail, but screaming or calling for others, by going to the police immediately after you leave, by identifying you, by testifying against you in court. Murdering the victim "leaves no witnesses."

Sometimes this is premeditated. Particularly cold, heartless killers will enter a situation knowing they must kill their victims. John Taylor, now under death sentence in New York for the "Wendy’s Massacre," was a former employee who gained entrance to the store to commit an after-hours robbery only because his victims knew him and let him in. Taylor and an accomplice then lined them up and shot them. He went into the store knowing he would have to kill each of his victims to avoid identification.

But far more often the killer is an amateur who doesn’t realize until the robbery has begun that the victim has "had a good look at him" and must be eliminated.

There is no way to contravene this logic of murder except through the death penalty. No amount of pleading or cajoling-no promises that "I won’t tell"-will ever convince a robber or rapist that there isn’t an advantage to escalating the crime to murder. The only plausible deterrent is a qualitatively different punishment. If the punishment for robbery is a few years in jail and the punishment for murder is a few more years after that, there is very little if any deterrence. But if the punishment for robbery is jail time and the punishment for murder is death, there is reason to think twice.

The need to draw a bright line between a felony and felony murder was what inspired Enlightenment reformers to argue against capital punishment for crimes less than murder. In The Spirit of the Laws (1750), Montesquieu wrote:

"In China, those who add robbery to murder are cut in pieces: but not so the others; to this difference it is owing that though they rob in that country they never murder. In Russia, where the punishment for robbery and murder are the same, they always murder. The dead, they say, tell no tales."

But eliminating the death penalty creates the exact same dilemma. Without any qualitative differential, there is no disincentive to murder the victim of the crime.

Almost the entire increase in murder from 1966 to the mid-1990s was an increase in felony or "stranger" murders-murders committed during the course of another crime. Only when executions resumed in the 1990s did the murder rate drop precipitously to its 1960s level. About 300,000 Americans died unnecessarily in the interim.

A few years ago a New Jersey housewife was kidnapped at a shopping mall by a teenage carjacker. The youth was obviously an amateur and could think of nothing to do but drive the woman around for a few hours. In the process, though, it became obvious that he intended to kill her. The woman spent the better part of an hour pleading for her life. She also had a pocket tape-recorder, which she activated. Over and over she pleads, "Is it worth my life for you to have a car?" The logic did not work. He killed her anyway.

But what if the woman had been able to argue, "Is it worth your life?" Would that have made a difference?