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.”