Life and Death in Illinois

I admit to being wishy-washy about the death penalty. Part of me is a bleeding heart (an ever-shrinking part) who thinks that the purpose of punishment is to rehabilitate criminals and to compensate victims. Another part of me is a hang-'em-high, hang-'em-low, just-hang-'em maverick who thinks that death row should move quicker than an Express Checkout line at three in the morning--and it should be open not only for murderers, but for repeat offenders who rape, molest children, or commit armed robbery.

Nonetheless, I have some not so wishy-washy things to say about the arguments of death penalty opponents.

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As we all know by now, former Illinois governor George Ryan emptied Illinois death row before leaving office. His reasoning was twofold. First, he is concerned about executing the innocent:

"I am not prepared to take the risk that we may execute an innocent person," he wrote in an overnight letter to the victims' families warning them of his plans.

The problem is that this is the same justification he used for declaring a moratorium on executions in order that each death row case might be reviewed. Presumably he was worried that the moratorium might be lifted, but the incoming governor in fact supports the moratorium. If one is worried that Illinois is executing innocent people, then a moratorium is a rational response to this worry. However, a blanket commutation goes beyond protecting the innocent; it also releases the guilty from their justly-determined sentences. It is unlikely that all or even most of the cases on Illinois death row involve a high risk of executing the innocent, but a blanket commutation is tantamount to making that dubious claim. Ironically, it is only a case-by-case review that would provide evidence for such a claim.

[After writing the above, I saw Ryan on Nightline. There he justified the blanket commutation on the grounds that he had looked at all of the cases on death row and drew the conclusion that the system is broken. However, when pressed on this issue of whether he had in fact seen all of the cases, he backpedaled. If I can get the transcript, I'll look at issue in more detail.]

Second, there is an alleged disparity in who gets the death penalty:

"Our capital system is haunted by the demon of error--error in determining guilt, and error in determining who among the guilty deserves to die," Ryan said. "What effect was race having? What effect was poverty having?"

This has become one of the most common arguments against the death penalty, i.e., that it is racist and unfair to the poor. Not surprisingly, advocates of the death penalty dispute this claim. Suppose, however, that it is true that non-whites receive the death penalty more often than whites; does this justify the abolition of the death penalty?

No, for two reasons. First, the death penalty is not racist, because a penalty in and of itself cannot be racist. Lest one think that I'm picking semantic nits, the point is that the application of a penalty can be racist, but not the penalty itself. Hence, if a penalty is applied unjustly to one group over another, the proper conclusion to draw is not that the penalty should be abolished, but that it should be applied fairly. In other words, the unfair application of a penalty is not a sufficient reason for abolishing the penalty.

Second, the key issue in determining whether someone is guilty of a crime and deserving of the death penalty hinges upon the particular case: did X commit a premeditated murder of a certain heinous character or not? If the prosecution meets that burden, accusations of race-based bias are irrelevant, even if they are true. Why? Let's take as an example two people formerly on Illinois death row, Fedell Caffey and Jacqueline Williams:

Caffey and Williams decided they wanted a baby. So they stabbed to death a pregnant woman, Debra Evans, in her Addison apartment and cut her nearly full-term fetus from her body, according to prosecutors. To eliminate witnesses, they also murdered Evans' 10-year-old daughter, Samantha, and 8-year-old son, Joshua. Another child, Jordan, was spared in the 1995 murder--children under the age of 2 aren't likely to be good witnesses. And the newborn boy also survived. Fortunately, Jordan's grandfather, Sam Evans, says Jordan has no recollection today of the horrors he witnessed.

Caffey and Williams are black, and the Evans family is white. There is no doubt that Caffey and Williams are guilty and that the crime is heinous. So what possible argument can death penalty opponents make here vis-a-vis racism? Should Caffey and Williams not be executed, precisely because they are black and the victims white? Or do we want to make the hypothetical--and untenable--argument that if the race of the killers and the victims were reversed, there would be a different outcome? The problem for death penalty opponents is that the issue of innocence or guilt trumps the issue of race at the level of particular cases.

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It's not hard to see what's wrong in general with the abolitionist position: it conflates empirical arguments against the death penalty with philosophical arguments against it. Lest our Objectivist friends cringe at this distinction, let me make it clear. Abolitionists are opposed in principle to the death penalty. For example, many think that the death penalty is nothing more than murder on the part of the State. Not finding this to be a popular philosophical position, abolitionists are now banking on empirical arguments, i.e., arguments about how the death penalty is in fact applied by the State. The two arguments above are examples of this. The problem is that empirical arguments only justify changing how the State applies the death penalty, from carelessly and capriciously to rigorously and fairly. They do not justify the abolition of the death penalty.

Another way to make this point is to take Ryan's "demon of error" rhetoric at face value. What does one do when one's house is haunted by a demon--demolish the house or exorcise the demon? Most of us would first try to exorcise the demon before demolishing the house. Abolitionists simply want to demolish the house even while pointing the finger at the demon.