Crime, the Gallows, and Trump

In Henry Fielding’s novel Tom Jones, one Ensign Northerton quarrels with our hero and, without warning, deals him a seemingly mortal blow. Placed under arrest, the assailant begins to consider the consequences of his crime. Fielding writes that Northerton:

had a great antipathy to those close winter quarters in the Castle of Gloucester, for which a justice of peace might possibly give him a billet. Nor was he moreover free from some uneasy meditations on a certain wooden edifice, which I forbear to name, in conformity to the opinion of mankind, who, I think, rather ought to honour than to be ashamed of this building, as it is, or at least might be made, of more benefit to society than almost any other public erection.

That edifice was, of course, the gallows. Fielding was no idle spectator in these matters. Besides being a novelist, he was a crime-fighting London magistrate, the co-founder of Britain’s first professional police force. Two years after Tom Jones, he spelled out his recommendations in the 1751 treatise, An Enquiry into the Causes of the Late Increase of Robbers.

What Fielding thought could make the gallows so beneficial to society was to make it inexorable. The “certainty of destruction,” he argued, is essential to deterrence. Criminals, he wrote,

will derive more encouragement from one pardon than diffidence from twenty executions. … If therefore the terror of this example is removed (as it certainly is by frequent pardons) the design of the law is rendered totally ineffectual; the lives of the persons executed are thrown away, and sacrificed rather to the vengeance than to the good of the public, which receives no other advantage than by getting rid of a thief, whose place will immediately be supplied by another.

Some of Fielding’s ideas—e.g., that executions should no longer be done in public—were eventually adopted. But the English found they could not stomach the continued, let alone inexorable, hanging of people for mere thievery. So with her prison hulks filled to bursting, England hit upon the idea of “getting rid of a thief” by shipping him off to Australia. That process, as Robert Hughes details in The Fatal Shore, involved a great deal of suffering and death. But it at least afforded the convict a hope for survival and a new life.

While there is no longer any question of hanging thieves, Fielding’s point about the “certainty of destruction” has an obvious application to capital punishment’s potential value as a deterrent to murder. I had Fielding in mind when I wrote “How Donald Trump and Friends can Crush the Great Crime Wave” for National Review. I argued that if death for murder is to be an effective deterrent, it cannot remain the extremely rare exception it is now. It must become the rule. And I pointed out the inescapable fact that (given our experience of the past 50 years) only a constitutional amendment can produce that great change.

The Fine Print of Deterrence

My words, sad to say, bore no fruit. With one exception, I don’t believe it’s because National Review’s readers, contributors, and editors don’t care about the thousands—cumulatively, hundreds of thousands—of innocent lives lost to murders that aren’t deterred by a death penalty that isn’t enforced. A more likely cause is that they’ve ruled out the possibility that capital punishment can save those lives. They’ve bought into the idea, assiduously cultivated by liberals, that death does not deter.

That idea amounts to a shibboleth, a means by which the intelligent, educated and enlightened members of the human race identify one another. Its power is such that one stubborn supporter of capital punishment, writing in the Canberra Times in 1997, sought to establish his intellectual bona fides by prefacing his argument with the declaration: “There is absolutely no doubt whatsoever that the death penalty has no deterrent effect.”

But the fine print of that shibboleth is and has always been that executions don’t deter when they aren’t carried out—something Fielding observed more than two centuries ago.

In 1959, sociologist Thorsten Sellin established the no-deterrence idea for all time in the modern mind. Yet even he admitted that his work told nothing about the deterrent effect of a death penalty that was actually enforced, as opposed to what were little more than paper penalties. He cited Belgium, where the death penalty was on the books but—“except for one ‘accident’ so to speak and after World War II against collaborators with the enemy”—had never been enforced since 1863.

“Under such circumstances even the knowledge that persons are still arrested and prosecuted for murder and even sentenced to death in Belgium would contain no threat of death to potential murderers in that country,” Sellin wrote. “We arrive then at the conclusion that if the death penalty is to have any restraining effect there must be an adequate threat of execution, but no one has ventured to calculate how great the risk of possible execution must be in order to constitute an adequate threat.”

Sellin then examined the death penalty in America since 1920—an era in which the chance of a murderer’s actually being executed was scarcely one in 100—and concluded: “The death penalty, as we use it, exercises no influence on the extent or fluctuating rates of capital crimes. It has failed as a deterrent.”

Left unexplored was that mysterious question of what degree of enforcement might pose “an adequate threat of execution.” That task fell to economists. The first to look at it was Isaac Ehrlich (1975), followed by others including Walter Vandaele, Kenneth Wolpin, Stephen Layson, Llad Phillips, Subhash Ray, Hashem Dezhbakhsh, Paul H. Rubin, Joanna M. Shepherd, H. Naci Mocan, R. Kaj Gittings, Dale Cloninger, Roberto Marchesini, Paul Zimmerman and George Brower. Google those names and you’ll quickly get up to speed on the case for deterrence.

Why, exactly, do murder victims’ lives count for so little, and their killers’ lives count for so much?

What the researchers found, after controlling for other variables which affect the murder rate, was that each execution deters several murders. Ehrlich estimated the effect at eight murders deterred per execution. Layson in 1986 put it at 18, as did Dezhbakhsh, Rubin, and Shepherd in 2003. Other estimates range from three (cited in a New York Times article in 2007) to 50 (cited in the United States’ amicus curiae brief in Gregg v. Georgia, the Supreme Court ruling that revived the death penalty in 1976).

The Social Science Isn’t Settled

Needless to say, the idea that the no-deterrence doctrine is all wrong encountered vociferous opposition from those who had hailed Sellin as the “Voice of Science.” In 1996, sociologists Michael Radelet and Ronald Akers polled “leading criminologists who are not specialists in capital punishment research” and found that 84 percent thought the death penalty did not deter murder. Moreover, only 18 percent of them agreed that “if the frequency of executions were to increase significantly, more homicides would be deterred than if the current execution rate remained stable.” Almost 80 percent disagreed, with 34 percent disagreeing “strongly.” And in 2012, a National Research Council panel deemed the deterrence studies inconclusive and declared they “should not be used to inform judgments about the effect of the death penalty on homicide, and should not serve as a basis for policy decisions about capital punishment.”

If all this reminds you of the “science is settled” mantra regarding climate change, it should. Sociology and criminology have long been fertile fields for the left-wing politicization of science. But notice the NRC’s non-sequitur: Since we don’t know for sure if innocent lives might be saved by increased enforcement of the death penalty, we shouldn’t even think about trying it and finding out.

Why, exactly, do murder victims’ lives count for so little, and their killers’ lives count for so much?

On deterrence, the burden of proof rests not with those who affirm it but with those who deny it. If a reasonable possibility exists that executions actually carried out will deter some murders, then the people put at risk by our failure to enforce the death penalty far outnumber the death row inmates who are the focus of so much concern among capital punishment’s opponents. The ones put at risk are the hundreds of thousands of innocent men, women, and children who will fall victim to criminal violence tomorrow, next year and on into the future.

Against Conservative Indifference

Make deterrence real, and murder (together with the executions flowing from it) would shrink to a small core of undeterrables. Instead, by refusing to admit the possibility of deterrence, death penalty opponents ensure that the slaughter of innocents will continue unabated, indefinitely. That’s a parade for National Review to stand athwart, yelling “Stop!”

So why doesn’t NR do it? Maybe there’s another reason they’re letting that parade pass by. National Review is a NeverTrump citadel, and I had tied my argument to Trump’s vow that “The crime and violence that today afflicts our nation will soon—and I mean very soon—come to an end.”

Everyone, of course, wants crime and violence to come to an end. Rather fewer, at least in anti-Trump circles, have any interest in seeing The Donald fulfill a campaign promise. So in all of NR Land, the only one to respond to my anti-crime manifesto—make that my “authoritarian screed”—was someone who made the astonishing claim that Americans have not, in fact, suffered any “significant increase in crime” in modern times.

For “not significant,” read, “It means nothing to me” or “I don’t care.” Here, then, is the exception I mentioned earlier. This proudly callous contributor, T. Greg Doucette, compared the doubling, tripling, quadrupling and even quintupling of per-capita crime rates to the number of dollars in a very small bank account, i.e., to something of little importance. He offered crime’s victims the comforting thought that what they have been suffering is, after all, “a generally rare occurrence,” and he suggested that conservatives can counter Trump by continuing in the indifferent way we have been handling crime.

That strikes me as quite insane. The rise of Trump, as everyone agrees, is a product of the people’s frustration with an unresponsive Washington establishment. On no issue whatsoever has the establishment been more unresponsive to the popular will than it has on crime and punishment.

Had conservatives and the Republican Party been doing their duty regarding the Great Crime Wave from its beginning, then not only would we not have a President Trump, we wouldn’t have had a President Obama. We probably wouldn’t even have had a President Clinton. So to Mr. Doucette and friends I say (quoting The Federalist’s Sean Davis), “You want more Trump? Because this is how you get more Trump.”

About Karl Spence

Karl Spence is a retired journalist living in San Antonio. His work has appeared in National Review, the Chattanooga Free Press, American Thinker and at

Photo: iStock/Getty Images

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8 responses to “Crime, the Gallows, and Trump”

  1. Actually, there is one absolutely, irrefutably provable deterrence following any execution: the subject of that execution, who had already proved himself capable and willing to commit heinous enough crimes to warrant the death penalty, will never, ever commit those crimes again.

    There is also the lost or suppressed notion of retribution – of PUNISHMENT. Victims of capital crimes generally either die in terror or live on in fear the remainder of their violated lives. The perpetrator of the killing or so profound a violation deserves to be punished for it.

    Intellectualism – particularly the pseudointellectualism of the average Leftist dilettante – leads to this analysis by paralysis and lofty high-mindedness, borne of a lack of firsthand exposure to the darker side of human behavior. Wisdom, by contrast, uses empirical evidence, gained either firsthand or by dispassionate examination of events as they occurred, and of the perpetrators of those events as they actually exist – not as it might be wished they existed, but as they ARE.

    Intellectualism argues endlessly over the merits of an action. Wisdom simply focuses on the results.

    • Absolutely agreed. Recidivism rate = 0.

  2. Finally someone willing to state the obvious — that whatever effect the death penalty might have, it doesn’t, because it takes 30 years to hang a known murderer, we apply the same methods used to end the sufferings of a beloved family pet, and more die on death row than from the application of the sentence. There’s too much of this: “Some Guy was executed by lethal injection for the 1978 rape and murder of…,” by which point, the time spent on death row is twice the length of the murder victim’s entire life, and we concerned ourselves with his humanity and suffering so much that we simply put him to sleep.

    Case in point: an Islamic lunatic killed 13 in Ft. Hood on November 5, 2009. In a sane era, he’d have gotten to the end of his rope by Christmas at the latest; Texans know how to tie and properly apply the rope — at least, they did. He was convicted and sentenced to the same, however, on August 28, 2013. That’s 1392 days, and he’s still alive. By contrast, it took 1365 days from Pearl Harbor to the Japanese surrender on the USS Missouri.

    What possible justification can there be for this? I don’t care if he’s clinically insane, or what the Court might say about it. There’s no reason not to hang someone so crazy that this seems like a good idea to him. If he did it purely out of Islamic motivations, then I’m even more enthusiastic to see him die. I don’t care particularly if the execution is “botched.” Shoot him, hang him, apply the guillotine. As Tom Hanks said in The Green Mile: “Eduard Delacroix is dead, now, isn’t he?”

    But instead, we’ve got all this wrangling about what to charge him with — terrorism? not terrorism? — lawyers making a hash of it, and worrying about cruelty.

    With regard to Trump, this is a significant portion of why he won: Americans are sick of hearing can’t from talking heads, political figures, and other assorted traitors. Can’t secure the border, can’t go back to the moon even if we wanted to, can’t fix this or that, can’t stop the cash firehose driving us into ruin, can’t even remove these unworthies from our midst in the manner they most richly deserve.

  3. Whether or not the timely execution of those convicted of a capital crime deters crime need not be questioned in order to oppose the death penalty. The problem of the death penalty is the failure of the criminal administration to only convict the guilty rendered to the system for adjudication. The prosecutorial side of the system is vastly better funded and entirely incentivized to ‘achieve’ convictions irrespective of the justice of doing so. When the public defenders offices are funded and rewarded equal to prosecutors offices, then we as a people should consider expediting capital punishment. Until then, we should not.

  4. I’m skeptical of the death penalty as deterrent argument because most murders are crimes of passion committed by drug-addled perps. Deterrence is a force in the rational mind, not to a drug-crazed maniac. My second objection to the death penalty as deterrence argument is that incarceration for life should also be a pretty strong deterrent. Why are inmates routinely put on suicide watch? It’s not because they fear the death penalty, it’s because they would rather die than face incarceration. My final objection is the pragmatic reality that because of constitutional due process protections, death penalty defendants are entitled to a lengthy and costly appeals process. It costs far more in legal costs to execute a perp than incarcerate him for life. The finite resources of the criminal justice system would be better spent on enforcement rather than execution. The likelihood of prosecution is the greatest deterrent for all crimes. Property crime is rampant in many cities because police often don’t investigate property crimes. They would rather stake out a stop sign or red light and collect revenue than collect fingerprints, which is an expensive process. The risk of having my house broken into while I’m at work is a far greater concern to me than the risk of being murdered. If President Trump wants to be a law and order president, he would be more successful if he encouraged police to investigate property crime vigorously, rather than increasing the rate of executions.

  5. Deterrence destroys any idea of justice

    Lewis states:

    If we turn from the curative to the deterrent justification of punishment we shall find the new theory even more alarming. When you punish a man in terrorem, make of him an ‘example’ to others, you are admittedly using him as a means to an end; someone else’s end. This, in itself, would be a very wicked thing to do. On the classical theory of Punishment it was of course justified on the ground that the man deserved it. That was assumed to be established before any question of
    ‘making him an example arose’ arose. You then, as the saying is, killed two birds with one stone; in the process of giving him what he deserved you set an example to others. But take away desert and the whole morality of the punishment disappears. Why, in Heaven’s name, am I to be sacrificed to the good of society in this way?—unless, of course, I
    deserve it.

    But that is not the worst. If the justification of exemplary punishment is not to be based on dessert but solely on its efficacy as a deterrent, it is not absolutely necessary that the man we punish should even have committed the crime. The deterrent effect demands that the public should draw the moral, ‘If we do such an act we shall suffer like that man.’ The punishment of a man actually guilty whom the public think innocent will not have the desired effect; the punishment of a
    man actually innocent will, provided the public think him guilty. But every modern State has powers which make it easy to fake a trial. When a victim is urgently needed for exemplary purposes and a guilty victim cannot be found, all the purposes of deterrence will be equally served by the punishment (call it ‘cure’ if you prefer) of an innocent victim, provided that the public can be cheated into thinking him will be so wicked. The punishment of an innocent, that is , an undeserving, man is
    wicked only if we grant the traditional view that righteous punishment means deserved punishment. Once we have abandoned that criterion, all punishments have to be justified, if at all, on other grounds that have nothing to do with desert. Where the punishment of the innocent can be justified on those grounds (and it could in some cases be justified as a deterrent) it will be no less moral than any other punishment. Any distaste for it on the part of the Humanitarian will be merely a hang-over from the Retributive theory.

    The problem with deterrence is that is entirely unrelated to justice. Gun control would be an example, and the UK banned knives – I’m waiting for baseball bats. And we can ban “hate” speech because it incites. All those deter murder too. We can fine people who forget to lock their doors because that will deter theft.

    However while deterrence is unjust, actual justice would deter. Not this complex kabuki nonsense that happens between prosecutors plea-bargaining (maybe you won’t deter murder, but just get more guilty please for long or life terms). Justice delayed is justice denied for both the guilty and the innocent.

    A corollary is we need to avoid having people with a different set of morals and ethics around. If you allow immigration where they believe in honor killings, you will get honor killings, and although justice may be done, there cannot be deterrence. Importing the 3rd world and their quaint customs when some of them involve killing is just going to insure you have to be far more brutal in the enforcement, not just gallows. Maybe they will be deterred by crucifixion, but as we commemorate Friday, it didn’t even deter thievery.

    Strive to re-enthrone justice, with the due-process, and not the complex procedural bureaucratic game. There should be no plea-bargain. There is just the actual crime, mens rea, and the actual guilt or innocence, and a sentence that reflects just desert. But that is too simple and will eliminate the lawyer-bureaucrats and the defense attorney industrial complex.

    Justice will not deter actual evil, but that is why prisons were created to quarantine those who are evil, or capital punishment to remove them permanently from society. People who are good are already deterred by the inner morality.

  6. Two points:
    1) The death penalty does not deter Islamic jihadists, and in fact the lack of a death penalty is even worse, as it will amplify the jihadi attack into a suicide mission, because the jihadist will have failed in the eyes of Allah if he is captured and allowed to live.
    2) Israel has a serious problem with a lack of a death penalty (save Eichmann in 1961): When terrorist killers are not executed, they are kept in prison where they know Israel will trade hundreds of terrorists for a single Israeli — And some of these released terrorists go on attack again. By not exterminating them, they get another bite at the apple… And this is a problem we have with the 30%+ recidivism rate we’ve seen with Club Gitmo parolees. What’s worse on this situation is that some of these jihadis are paroled to 3rd party countries, because it’s against US law to deport them to their country of origin if they will be tortured or executed, such as Uighers returned to China — That’s why three Uigher jihadis were paroled to Bermuda (on our dime).

    [Worth noting is that Israel lacks a Constitution, instead relying on Judaic law. Professor Alan Dershowitz is a leading authority in this subject.]

    Dan Schwartz
    Cherry Hill, NJ

  7. I have to echo the comment that the focus of the criminal justice system should not be social engineering first, but actually doing justice. Not to say that rehabilitation and deterrence are not useful goals in themselves, but we are willing to carry out appropriate and proportional punishments, and capital punishment is obviously proportional to murder. So we are doing to them what they deserve, and the deterrent value is irrelevant to justice.

    The death penalty is dying out because it is being chipped away at the edges by the courts. So, even in a death penalty friendly state, you can go through all the motions to get a death sentence (multiply all the work of a murder trial by 3), then 10-20 years of appeals (or more where the convicted killer dies in prison waiting for appeals, effectively life without parole), you might get a sentence actually carried out. No wonder prosecutors are declining to go that route when life without parole is an option.

    I wouldn’t go back to hanging thieves as in Victorian times, but we should take a look at say, the top ten most heinous acts after murder, for starters crimes such as aggravated child molestation, and other of the most serious sex crimes, and make a promptly executed death sentence the rule rather than the exception, and then you can actually study the deterrent value to society.