Lethal injection for the death penalty?

NINETY-SEVEN countries, including the European Union, have abolished the death penalty. Only 58 nations still cling to it. Doubtless, this reflects the current world view about capital punishment, about how it fails with regard to its various assumptions, especially the one about how it deters would-be criminals from committing crimes.

How is deterrence supposed to work?

Deterrence involves the establishment of clear consequences for criminal activities which are designed to make people think twice before engaging in capital offenses. The argument runs like this: people are rational. People, therefore, compare the expected costs and benefits of every activity they undertake. Being rational, the thinking goes, people planning to commit a crime will think hard about the possible consequences of being caught and convicted. From this basic premise, therefore, we can assume that in areas where capital punishment is in force, capital crime is non-existent, or at least minimal compared to areas which do not have capital punishment.

But are capital offenses non-existent in areas where capital punishment is in force?

Strangely, no. In the United States, more than 80 percent of all capital punishment executions since 1977 have occurred in the South. With felons executed right and left in the South, we would expect potential felons to be careful, lest they be added to the statistics. But is that the case? Is murder far in between in the South? The answer is “no.” The South is the region with the highest murder rate in the U.S.

Conversely, we would expect the region with the lowest percentage of capital punishment executions to have the highest rate of capital crimes. With few capital punishment executions to serve as stark reminders to would-be felons, we would expect the murder rate to balloon. But is that the case? Is murder rampant in the Northeast? The answer is “no.” The Northeast has the lowest murder rate in the US.

What explains this strange phenomenon?

Not everyone who commits capital offenses premeditates his crime. The deterrence argument works only were it always true that every capital offense committed was done premeditatedly. That is something that is simply not true.

Most capital offenses are committed in the heat of the moment. Other capital crimes are committed under the influence of alcohol or drugs. Still others are committed by the emotionally-imbalanced or the mentally-ill. In all three cases, the felon is not in full control of his faculties, rendering him incapable of weighing the consequences of his actions to himself and to others.

Marvin Gaye, whom Rolling Stone magazine in 2008 ranked number 6 on its Greatest Singers of All Time, was killed by his father at the height of an ugly argument at his parents’ home. Astronaut Lisa Nowak tried to kill a woman romantically involved with the man she was crazy about -- Navy Comdr. William Oefelein, pilot of the 2006 Discovery.

For certain types of criminals, the most severe of punishments simply will not work

The prospect of a lethal injection will not deter a terrorist for whom martyrdom is an honor and privilege. Khalid Sheikh Mohammed, the 9/11 mastermind, ridiculed the legal proceedings that convicted him, welcoming the death penalty as a sweet way to martyrdom.

Neither will it deter a drug syndicate foot soldier whose every day is fraught with the possibility of dying in an encounter with the military or rival syndicates. Doubtful all the more will be capital punishment’s ability to deter in the case of the heads of organized crime with their battery of lawyers, judges on their payroll, and coddlers among politicians and the military. Medellin cartel founder billionaire Pablo Escobar, who used to control 80 percent of the world’s cocaine traffic, counted Colombian presidents among his protectors.

To be effective as a deterrent, a punishment must be promptly and consistently meted. Capital punishment does not lend itself well to this requirement.

To be effective as a deterrent, the would-be criminal must be certain that all he has to do is commit the crime, and within a year come hell or high water, he will die. That is something that does not happen in real life, however.

In most countries, mandatory death sentencing is unconstitutional. Many years will have to pass before any death sentence is finally ratified. The normal judicial procedure allows for interminable postponements and appeals. And, even were the final sentencing is pronounced, a considerable time may have to pass from the time the death sentence is handed down to its actual execution, given the procedural safeguards required by law in capital cases.