Why Preserving the Death Penalty Is Essential for America

If we lack the moral confidence to say "no" and mean it, we're done for.

It’s tempting to keep the focus on current events, what with Donald Trump endlessly running saying one thing or another and Joe Biden’s dispatches from assisted living. But I think it at least equally important to attend to some of the long-running debates in American society. Especially deserving of attention, certainly now, are those that illuminate the cultural divide between (1) those who believe our country is a force for good with the moral standing unapologetically to defend its way of life, versus (2) those who believe the country is irredeemably stained with racism, misogyny, poverty, cruelty, and other sins that make us ripe for a nasty, but (tellingly) seldom fully described, “reckoning.”

Over the years I’ve been a lawyer, I’ve found that disagreement about the death penalty runs along that fault line and tells us a good deal about it. I’ve debated the subject often. One of the most illuminating lines I ever heard was from a prominent death penalty abolitionist, (at the time) Vice Dean of Harvard Law School, Prof. Carol Steiker (my C-SPAN debate with her, courtesy of the University of Virginia Federalist Society student chapter, is here). Prof. Steiker said that, yes, there are criminals who very likely deserve execution, but that our country lacks sufficiently reliable legal process — and more important, sufficiently assured moral standing — to do the executing.

I cannot agree. We’ve got plenty of moral standing. To understand why, we need to start with what death penalty abolitionists like to skate past, to wit, what exactly we’re dealing with. I tend to choose, not the publicized cases like Timothy McVeigh’s mass murder at the Murrah Building in Oklahoma City, or Dzhokhar Tsarnaev’s blowing up an eight year-old boy (and others) at the Boston Marathon, but with cases you probably never heard of.

Here’s one, from wire reports in a bit more than 15 years ago. I’ll keep it condensed to try to avoid nauseating readers.

A Florida judge sentenced John Evander Couey to death Friday for the kidnap, rape and murder of 9-year-old Jessica Lunsford.

Couey, a previously convicted sex offender, buried Lunsford alive in two black trash bags with her hands bound and her favorite purple stuffed dolphin tucked in her arms, Circuit Judge Richard Howard said. Lunsford's body was found in a grave in Couey's yard about three weeks after she disappeared.

"'He secured her fate with a second bag,' Howard told the court.

Howard called the murder 'cold and calculated,' causing a 'slow, suffering and conscious death.'

 It's often said in the debate over the death penalty that "death is different." Indeed it is. Jessica Lunsford's was very different. And yes, she was all of nine.

It is, or at least pre-Wokeism it was, a commonplace that the punishment should fit the crime. It is a related commonplace -- in every discussion except the one about the death penalty -- that the punishment should reflect the facts of the offense. But abolitionists tell us, not only that there is no set of facts about offense behavior that would warrant our keeping capital punishment, but that in addressing that question, no set of facts can even be considered.  

Excuse me, but that’s crazy.

The movement to end the death penalty is distinctive not only in its determined obliviousness to the facts of the crime, but in its ahistorical and elitist character. The Framers explicitly contemplated death as a punishment, and in the early days of the Republic, it was applied to many more crimes and with many fewer safeguards than today. Of the 116 Supreme Court justices in the nation's history, only a half dozen have taken the view that it is per se cruel and unusual punishment. (Among the current Justices, none has said unequivocally that the death penalty is impermissible, although I suspect Justice Sotomayor and Justice Brown-Jackson will before long). It has been not only supported but used by Presidents from Bill Clinton to Dwight Eisenhower, Franklin Roosevelt and Abraham Lincoln. It is currently approved by a clear majority of the public, as it has been for the last half century.

A stunningly broad and longstanding consensus in favor of the death penalty --  one that includes Lincoln and more recent figures like Sandra Day O'Connor and Lewis Powell  --  does not make it right. It does, however, oblige the abolitionist side clearly to establish that it's wrong. Despite arguments that fair-minded people have to take seriously, it has not met that challenge.

The abolitionist argument that, I believe, gives most people pause is the observation that, because of errors and biases in the system, an innocent person might be executed, and if that happens, there's no going back. 

No honest person can deny that possibility. But the evidence that such a thing has actually happened in anything like recent times simply does not exist (see, e.g., Justice Scalia's concurring opinion in Kansas v. Marsh). There is no case accepted by any neutral and authoritative source for at least 50 years that we have executed an innocent person. There have been exonerations from death row, true. But mere erroneous convictions are not the moral engine of abolitionism, and are impossible to avoid in any alternative system, including the one abolitionists most frequently suggest (life without parole). Murders by incarcerated killers are also impossible to avoid, and in fact have happened by the dozen, because prisons are at least as fallible as courtrooms if not a great deal more so.

Accordingly, the fact of fallibility does not, as abolitionists frequently argue, mean that the death penalty must end. It means that we must choose which fallibility is likely to kill the smaller number of innocent people -- prison errors or judicial ones. Not surprisingly, the factual record is unambiguous as to which kind of error is actually the most lethal to the innocent. 

And none of this is to speak to the deterrent effect of the death penalty. A spate of studies over the last few years, by independent researchers with no axe to grind, has found almost uniformly that the death penalty saves lives, even while reaching widely varying conclusions on its exact quantitative effect. 

There are differing views about the most compelling argument in favor of capital punishment, but for me it is this: As noted in this entry’s sub-heading, the United States and its people have, in the face of the most grotesque crimes, earned the right to say "no" and mean it.

We simply don’t live in the land abolitionists decry, a land so blackened with racism and class-structure that we lack the moral authority even to execute child killers. At the center of abolitionism is a deep and paralyzing moral skepticism about the country, a reservoir of distrust about its basic fairness and decency.  Abolitionism is the domestic first cousin of what in foreign affairs is called "Blame America First." In this recounting, it's not John Couey who's really responsible for raping and murdering a nine year-old. It's us. We failed to treat Couey's problems, failed to rehabilitate him, failed to give him a job, failed in our caring, failed in our compassion.

Yes, Blame America First. Have I heard that somewhere before?

I dissent. The jury that gave Couey death didn’t consist of a bunch of Rotary Club monsters. The country where those jurors live isn’t barbaric, or backwards, or morally indifferent. Couey’s jury knew evil when it saw it, and had the wisdom and, properly, the power to bring it to a permanent end.  Elite opinion to the contrary, the next jury facing the next Couey should have the same chance.