...And Let God Sort Them Out

December is, as always, the great burial ground for stories of significant national import. People gear up for the holiday season, they travel to visit relatives, they deal with a houseful of children freed from school for three glorious—or not so glorious—weeks. When such a December falls just a month before the first presidential primaries, what little attention is paid to the news will be overwhelmed by broadcasts with such unlikely datelines and Sioux City and North Conway (Iowa and New Hampshire, respectively, for those who have truly been hibernating).

Regardless, life and death go on, even as we storm the malls and beg Amazon.com for last-minute overnight shipping. One underreported December story that clearly does involve life and death was the recent decision in New Jersey to repeal capital punishment, making Tony Soprano's home state the first to outlaw government executions in over three dozen years. This action, while dramatic, was also primarily symbolic, given that the Garden State has not actually executed a criminal since John F. Kennedy was president. Nevertheless, no state has voluntarily surrendered the right to kill since 1965, and New Jersey's action can be seen as part of a larger national moment of doubt.

The latest pushback against capital punishment has its roots in both activism and science. Beginning during the 1990s, a number of attorneys and law school professors, many taking advantage of the emerging technology of DNA "fingerprinting", decided to investigate various cases in which a high likelihood existed that wrongful conviction had taken place. The results were staggering and, to most Americans, unexpected. A system in which the standard for guilt is "beyond a reasonable doubt" yielded case after case in which the innocent were condemned to prison, sometimes to death row, for crimes that they did not commit. In Illinois, the problem was so great that outgoing Governor George Ryan (himself soon to be imprisoned for crimes he did commit) commuted all of his state's death sentences in early 2003.

Widespread misgivings about capital punishment, however, have not been with us for long. As recently as last decade, the willingness to sign killing orders was considered a standard by which the public would judge the toughness of governors running for president. Thus did Bill Clinton return to Little Rock during his 1992 campaign to oversee the demise of a brain damaged man named Rickey Ray Rector. Thus did George W. Bush, shocking even insufferable preppie Tucker Carlson, mock the recently executed Karla Faye Tucker's pleas for her life.

Scholarly debates continue to rage over whether the death penalty has a deterrent effect on would-be murderers. While most studies suggest a negligible impact at best, a number of papers, especially by economists, indicate that each state-sanctioned execution saves a handful of lives. Social science models, of course, are highly sensitive to the assumptions made by investigators and the variables included and excluded from their analyses. Economists, in particular, believe that human beings are rational actors, guided by at least a primitive sense of the costs and benefits of their actions. By this reasoning, the prospect of being executed will cause some to reconsider the benefit of committing first degree murder, making Americans as a whole safer.

The deterrence argument has always struck me as an odd one. Presumably, the important threshold faced by any rational prospective criminal is the probability of being caught and punished. Thus, greater certainty of punishment should logically have a more immediate effect on the criminal's decision making than the type of punishment, so long as it is sufficiently undesirable. More to the point, however, the notion that first degree murderers behave rationally seems laughably far fetched. Many are clinically, if not legally, insane. Most suffer from serious impulse control issues that would seem to refute notions of careful, or even superficial, calculation. Perhaps this supposed deterrent effect may be felt by hired hitmen and the like, but surely we aren't talking about a lot of people here.

But all of this scientific and pseudo-scientific analysis is, for the most part, beside the point. Capital punishment will, in the end, endure or cease on the basis of factors that are primarily visceral. When people hear about the rape and murder of children, their first response is not to consult the nearest academic economist. When they learn that an innocent convict has been irretrievably lost, they do not consider him a new entry on a spreadsheet to be weighed against lives potentially saved by his gratuitous execution. People who are afraid of one another will opt for the death penalty. People who are frightened by the power of the state and its blindly ambitious prosecutors will agitate against it.

Indeed, before we celebrate the end of state sponsored killings, we should face one additional variable. Those who are improperly executed are not, in most cases, very similar to those who vote. They are nearly always poorer, and very often members of racial and ethnic minority groups. Wrongly convicted individuals tend to have prior criminal records, the sort that sent the police in their direction to begin with. Most middle- and upper-middle class Americans will identify with the victims of crime long before they identify with suspected perpetrators. Moreover, the knowledge that most death row inmates have long rap sheets may persuade fence-sitters that nobody truly innocent is being executed, regardless of the facts of any specific case.

Some day, probably very soon, a new crime wave will hit, or we will be falsely convinced by hysterical media coverage that one is upon us. Or some particularly heinous crime will occur, perhaps in New Jersey, and people will clamor for vindication of their outrage through capital punishment. They'll say that we have to trust our judicial system. They'll say that the Bible demands an eye for an eye. They'll say that tax money shouldn't be used to feed and shelter a monster of this magnitude.

But what they'll really be saying is kill the bastards, kill them all until I feel safe again. Satisfy my need for vengeance. Against such attitudes, it is unlikely that an army of social scientists or a mountain of exculpatory DNA evidence will ever fully prevail.