Facing death penalty no deterrent

Tibor Machan: CNJ columnist

California’s governor wouldn’t give in. Neither would the U.S. Supreme Court, so Donald Beardslee, who killed two women in 1981 over a drug deal — while supposedly suffering from brain damage — was put to death by lethal injection last month.

As reported in the media, Beardslee’s defense attorney claimed Beardslee had brain injury stemming from “several accidents during his life,” and, furthermore, in prison “he was diagnosed as having schizophrenia.” A former warden reportedly said “Beardslee should have been granted clemency because he was a model inmate.” But none of this saved the man from California’s death penalty.

For several decades I have opposed this public policy measure, mainly because it is grossly imprudent. Of course, some people may well deserve to die for their evil deeds: murder, rape, treason or something else that’s totally intolerable in a civilized society. And I do not think it is barbaric to kill criminals, since I do not think it is barbaric to kill in self-defense, and the death penalty may at times defend us from a vicious murderer who may well kill again.

But there are ways to guard against this. What there is no way to guard against is the occasional application of the death penalty to someone who doesn’t deserve it. In short, the probability of a mistake is significant. So no one ought to risk it because it will at times perpetrate a great wrong.

This is all about us, yes, not about the criminal. We need to be careful not to kill people who should not be killed, and since there is a chance of doing this when the penalty is death, we should desist.

There is also the factor of cost. With all the appeals and other administrative maneuvers associated with every death penalty sentence — Beardslee lingered in prison for more than two decades — the expense is out of this world, far greater than what life without parole costs. Yet this is secondary. What should matter most is that a mistake is irreversible.

Does the death penalty deter people? The late professor Ernest van den Haag of the Fordham University School of Law, with whom I used to argue about this matter, held that deterrence view for several decades, until near the end of his life he changed his mind.

He still wanted those who deserved it to be put to death, but not because this would work to discourage most prospective murderers. In the main, murderers, other than professional or contract killers, do not kill as a result of rationally calculating the pros and cons. They have usually given up control by the time they kill, although this isn’t inevitable and in most cases they could have walked away.

It’s not all that different from when ordinary folks resort to yelling or violence — they had it in them to abstain but let go of themselves and resorted to improper ways.

So, a murderer is most likely to be beyond weighing odds, which means the threat of the death penalty isn’t likely to do much to dissuade him or her from going ahead with the deed. And the studies pertaining to this matter seem to show just that — deterrence is a mere hope and works in but the rarest cases. So what is left? Death for the sake of retribution, so van den Haag concluded.

OK, that’s not a bad reason, but, given the risks, it cannot carry the day. There are better options, period.

Some have argued the death penalty is justified revenge, the perfectly understandable collective venting of the raw emotion in the face of a grave wronging of someone. It is a civilized revenge because it is moderated by due process of law. It isn’t done hastily but deliberately.

Again, there is something to this, but it doesn’t offset the major objection — one can go very wrong with this, and there is no remedy. Someone mistakenly placed in prison for even most of his or her life could at least be compensated for a mistake. Such a person could then lead a very rewarding if short life, once the mistake has been established (for example, via DNA testing). But if there is an execution, this option is closed. And there need not have been such an irreversible policy — no reason for it exists given the other options that are available.

There is a lot that is wrong with the world, and this part is really simple to repair, with no loss to anyone. Life behind bars, with no chance of parole, surely is almost worse for most than dying.

Tibor Machan advises Freedom Communications, parent company of this newspaper. E-mail him at