Giving Big Government “A License To Kill”

In response to Matt K. Lewis’ “conservative case” for the death penalty we posted yesterday, Balko points out that the practice is “susceptible to the same problems Lewis points out when criticizing the things governments do that he believes aren’t legitimate”:

When it comes to the trappings of public choice and political economy, the corruption of power and tunnel-visioned public officials, the criminal justice system is no different than, say, the Environmental Protection Agency, the Department of Education or the Occupational Safety and Health Administration. Actually, there is one important difference: The consequences of government error in the criminal justice system are far more profound. …

Lewis makes clear that he only supports the death penalty for the most heinous of crimes, and only for those crimes for which the defendant’s guilt is certain. At first blush, it’s hard to quarrel with that position. The rub is that we’ll always need to draw that line somewhere. How heinous must the crime be? And how certain of guilt must we be? There have been more than a few exonorations in cases in which it seemed unimaginable that the accused people could possibly have been innocent. And yet they were. We now know that prosecutors and police are capable of fabricating and planting evidence. Not that it’s necessarily common, but it happens. That means that even DNA cases aren’t necessarily iron-clad. The science behind the testing may be certain, but the gathering and testing of evidence will always be done by humans and be subject to all the biases, imperfections and temptations to corruption that come with them.

Meanwhile, Max Ehrenfreund finds little reason to think the death penalty acts as a deterrent:

In fact, research suggests than criminals are mainly concerned about whether they’ll be caught, not what might happen to them afterward. “It’s the certainty of apprehension that’s been demonstrated consistently to be an effective deterrent, not the severity of the ensuing consequences,” said Daniel Nagin, a professor at Carnegie Mellon University. Nagin led a committee at the National Research Council that reviewed the evidence on executions and crime and concluded that the existing research is inconclusive. In any case, he argues, effective law enforcement is most important in preventing crime. People are more likely to break the law when they feel they can get away with it. “The police are really at the center of the action in terms of deterrence,” Nagin said.