Fix the Death Penalty

by Jeffrey Hart

The rationale for the death penalty is clear enough. We administer the most severe penalty we have available to those who commit murder, and we do so because we place so high a value on the life of innocent people. The death penalty says an emphatic no to murder.

At the present time, we face an interesting problem with French law. After a two and a half year search, we apprehended James C. Kopp, accused of murdering a Buffalo, New York abortion doctor. Kopp had been on the lam in Ireland and France, and he is now in a French prison. But the French will not extradite him if he faces execution for the murder. In fact, to do so would violate French law.

This seems an unwarranted invasion of American law by the French. Perhaps we should retaliate by refusing to extradite French crooks, thus turning the U.S. into a safe haven for Frenchmen fleeing from the French criminal justice system. Are we to suppose that the French would have refused to extradite Lee Harvey Oswald if he had escaped to France after murdering the President in Dallas?

No doubt Mr. Kopp would argue that abortion is murder and that he was preventing murder by killing the doctor. There is no law on the books, however, defining abortion as murder, and you cannot create a law through individual efforts at definition.

We also have now the case of Kristen Gilbert, 33, a nurse, and another obvious candidate for execution. She is accused of murdering four patients at a veterans hospital in Springfield, Massachusetts by injecting them with lethal does of epinephrine, a powerful stimulant. A jury in Springfield, Massachusetts has convicted her on three counts of first-degree murder and one count of second-degree murder.

Her motive for murdering the patients was, incredibly, the desire to impress a boyfriend.

Massachusetts has no death penalty and has not executed anyone for half a century. But Ms. Gilbert is eligible for federal prosecution because the hospital where she committed the murders is on federal property. Though federal authorities say it would be unusual for the government to seek the death penalty in one of the twelve states without one, nevertheless their duty in this case seems clear enough. It was a peculiarly violent crime, aggravated by the fact that it was a crime against the hospital and the medical profession.

Opponents of the death penalty, of course, have many things to say. For example, that it does not deter.

It is very difficult to prove a negative. That is, the task is to demonstrate that a crime that did not occur was deterred by the death penalty. A judge once remarked to me with a smile, "at least execution deters that criminal."

But there is considerable anecdotal evidence. For example, a friend of mine, a television writer-producer, was working on a documentary film about youth gangs in Harlem. Somewhat to his surprise, he found some of the gang leaders perfectly willing to cooperate with him, as long as he protected their identities.

The gangs he studied committed all sorts of crimes: narcotics dealing of course, but also robbery, murder and so on. They allowed him to witness, from a distance, the shooting of a member of a rival gang for territorial violation.

My friend interviewed the gang leader, whom he described as "very intelligent, a potential Harvard MBA. Instinctively, a good businessman." How many people had he murdered? "About fifteen."

"Why?"

"During a robbery, if the person got a good look at me, and could identify me, it was too risky to let him go. If I were caught for robbery, I could get 7-8 years. If I got caught for murder, I’d be out in 7-8 years. Much safer to kill him."

My friend observed that jail here was just a "business expense." But, he asked the gang leader, "Suppose you knew that you would be executed if convicted for murder. Would you do it?"

"I’m not crazy," the young man said. "Do you think you’re smarter than I am?"

I realize that this is anecdotal and probably not decisive, but I think it telling.

But I also think the deterrent effect of the death penalty is much weakened by the length of time to inflict it. People committing murders now know that they will be in jail for years if caught, and that there is a pretty good chance that they will not be executed at all.

The lengthy appeals process is there to ensure that mistakes are not made.

Alright, the possibility of a mistake is a strong argument against execution, which is irreversible.

So, why not reserve the death penalty for cases in which there is no doubt whatsoever of guilt. Cases where doubt of some sort exists, however tenuous, should involve prison sentences. And when no doubt exists, then the death penalty should be enforced expeditiously. Deterrence would be considerably enhanced.

I do not find persuasive at all the argument that the death penalty is applied disproportionately to "minorities." Obviously, this is because they commit a disproportionate number of murders.

Murder is not usually the crime of choice among Wall Street bankers.

I recall that during the 1930s, execution for murder was routine. And the man who "kept the motor running" was just as guilty at the man who pulled the trigger. It is also true that the streets of New York, for example, were – by today’s standards – remarkably safe.

I suspect that our difficulties with the death penalty are connected with a flabby tolerance of violence and mayhem, and that because of this tolerance we get more violence and mayhem.