TCS Daily

Life at the Margins

By Benjamin Zycher - July 16, 2002 12:00 AM

In August 2000, Nicholas Markowitz, 15, was kidnapped in a Los Angeles suburb, held for several days, and then murdered by a group of men who had grown up with Markowitz' older brother. The larger motives for this crime remain murky, with allegations of prior drug dealing, drug debts, and attempted insurance fraud on the part of the older men still unresolved. It is clear that the young victim was innocent. What is clear as well is that the de facto absence of a death penalty in California led to the decision to murder the teenager.

After one of alleged killers, Jesse James Hollywood -- no, I am not making that up -- "called his lawyer and learned the severe penalty for kidnapping, police say, the young men decided they had to kill Nicholas" (Los Angeles Times, August 26, 2001). In other words, since the penalty for kidnapping effectively was a life sentence or something close to it, and since the perceived probability that the kidnappers would be apprehended and convicted was high, the marginal (or "extra") penalty for murdering Markowitz was perceived to be low or zero, in that the likelihood of actual subjection to capital punishment in California is trivial -- California has executed ten individuals since 1976. And it's a punishment that, in any event, is delayed one or two decades by the appeals process. Accordingly, the prospective act of murder, even upon arrest and conviction, would yield the same life sentence already looming. So why not get rid of the central witness to the kidnapping?

Thus does the distinction between "absolute" and "marginal" deterrence of crime become crucial. It is one thing to say that stiff penalties in principle are appropriate because they deter criminals. It is quite another to ask whether a given stiff sentence for a serious crime encourages crimes even more egregious by reducing the prospect of punishment even stiffer.

Consider the California "three strikes" law. A third strike puts the criminal in the hoosegow for life. The first two strikes must be felonies that are serious, with penalties that are determined by the nature of the crimes, and with a sharply higher penalty upon conviction for the second strike. That penalty structure thus is roughly appropriate in terms of deterrence because the second strike for a serious crime carries a stiff prison term.

But the third strike is problematic: It carries a life term for any felony, whether serious or not, so that a criminal pondering his next offense faces the same life sentence for attempted murder, auto theft, or stealing someone's lunch. So there is little reason for a hungry criminal merely to walk into a hamburger joint for a free meal. Why not think big? Steal a car emerging from the drive-through lane, throw the driver under the wheels of the truck directly behind, and enjoy a nice, kosher bacon cheeseburger. The extra prison time by design will not be super-sized.

Yes, it is true that California has adopted such adjustments as discretion on the part of prosecutors and judges as to whether to count certain past crimes as "strikes." But such an ad hoc approach is problematic both in practice and as a general principle in a nation that is supposed to be governed by a rule of law. And it is utterly useless in the context of the most serious crimes in the absence of a death penalty. Many crimes -- attempted murder, aggravated rape, kidnapping for ransom, and the like -- are so egregious that they appropriately carry very stiff penalties approximating life sentences. In the absence of a death penalty, that necessarily reduces the marginal penalties for offenses even worse, a state of affairs that can be predicted to increase the rate at which such terrible crimes are committed.

Therefore, the absence of an effective death penalty, whether formal or de facto, by reducing marginal penalties for the most serious of crimes, creates an important problem in the context of crime deterrence. One way around this problem is to reduce penalties for the large array of lesser crimes so as to preserve marginal deterrence for the more serious ones. But that would yield an increase in the rate at which the lesser crimes -- many of which are hardly trivial -- are committed, and might actually increase the rate at which the truly serious crimes are observed, in that some of the latter are unplanned outcomes of lesser felonies.

After all, for example, some murders committed during convenience-store holdups are not envisioned by the robbers beforehand. In short, an attempt to preserve marginal deterrence by reducing penalties across the board is likely to increase serious crime generally, hardly a salutary outcome. And given the very low likelihood that an innocent actually will be executed, such an across-the-board reduction in penalties is likely on net to increase the taking of innocent life (or of those not guilty of murder), in this case by criminals rather than by state governments, a distinction that may or may not be important.

Another possible circumvention of this problem is offered by the old Soviet incarceration system -- we take our inspiration where we can find it -- of special, strict, reinforced, and general prison regimes, which offered different levels of luxury for different classes of crimes (or criminals). The level offered those sent to special-regime prisons was such that death loomed as an attractive alternative, and thus provided a real disincentive for the most serious crimes as defined by The People, that is, the Communist Party of the Soviet Union. It is doubtful that such a system in the U.S. would survive judicial challenges, although we do approximate it in small respects with our maximum-, medium-, and minimum-security prisons, the first of which, offering as it does three meals a day, medical care, and cable television, still is unlikely to provide the deterrence benefits of capital punishment. Long prison sentences at hard labor might be appropriate for the most egregious crimes short of murder, and might even pass judicial review if designed carefully.

And so a society serious about deterring egregious crimes generally and murders in particular, and anxious to use punishment as a moral expression of the value of innocent life, must have an effective system of capital punishment. Both the moral pursuit of justice and the practical preservation of political support require that those accused of capital crimes be given the resources -- say, $1 million -- necessary for a serious defense and appeal process. This does not have to mean an O.J. Simpson defense because judges do not have to be as confused as Lance Ito, Esq. This is hardly a serious fiscal burden in a society with a GDP of $10 trillion. Such a political compromise restoring a real system of capital punishment might also include a new Appellate Court specializing in capital cases, combined with strict time limits on the number and length of appeals. This new court would be subordinate to the Supreme Court, but the latter, it seems, would be likely to accept few or no appeals from the former.

There is the further matter that politically-ambitious prosecutors and state Attorneys General with their eyes on the Governorship have powerful incentives to invent evidence, hide exculpatory findings, turn a blind eye toward police misconduct, and otherwise to engage in behavior not consistent with the dispassionate pursuit of justice. The personal integrity and moral decency of the vast majority of prosecutors simply is not enough; that is only one reason among many that prosecutors generally ought not be elected or allowed to run for higher office. In the context of capital punishment, this suggests that a special capital-case prosecutorial corps be established, with appointments made by elected officials.

The common argument that a humane society cannot risk even one execution of an innocent is silly: Just as all of us risk death daily in order to drive automobiles, enjoy exotic seafood, and watch the Lifetime channel, it is axiomatic that each of us, except for prospective murderers, is willing to bear the infinitesimal risk that someday we might be executed wrongly for murder in order to obtain the far more important reductions in crime generally and serious crime in particular that an effective regime of capital punishment makes possible.

This is so obvious that one is led inexorably to the conclusion that many of those publicly opposing capital punishment do so because they actually oppose all punishment, except perhaps for cigarette smokers and those who enjoy ethnic humor. That the liberals now are endorsing IQ tests as a tool with which to end executions, purportedly of the "retarded," is amusing; less humorous was the blind eye turned by many of the same people toward Bill Clinton when he loudly returned to Arkansas to oversee the execution of a severely retarded man during the 1992 presidential campaign. And now we have the recent majority decision of the Supreme Court in which a social "consensus" against such executions is invented as a Constitutional basis for proscribing them. The evidence provided for such a consensus is spurious, and, in any event, the purpose of the Constitution is to defend against the majoritarian whims that masquerade as "consensus." It is the rights of political minorities that the Constitution is designed to defend, but it cannot do that if decisions are based upon the purported existence of a consensus, which can change literally overnight.

Capital punishment is an unpleasant business. The alternative is worse.

Benjamin Zycher is a senior fellow at the Pacific Research Institute. Email:

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