There seems little doubt– to me at least– that the death penalty, if applied consistently and predictably enough (so that there is a real chance that it would be applied to a potential criminal defendant) will deter all sorts of crimes. It will deter murder. It will deter embezzlement. It will deter jaywalking. The fact that various economic studies (as noted in this NYT article) suggest this correlation should hardly startle anyone. People don’t like to die, even if the death is painless, and informing people that there is a credible chance that they will die at the hands of the state if they perform a certain activity, all other things being equal, is likely to reduce the level of that activity.
The deterrence argument isn’t convincing to Jack Balkin. He’s not completely against the death penalty (in spite of his initial sarcasm), but he is instead in favor of severe restrictions. His reasonings for restrictions are almost purely moral. But, I find the moral arguments (while accurate) totally unworkable politically. Killing a killer just doesn’t strike most Americans as “wrong”.
My argument against the death penalty is more practical. In the end, we can’t ever be 100% sure that the accused ACTUALLY did it. We can know beyond a “reasonable doubt,” we can have truckloads of evidence, we can have witnesses coming out of our ears, but none of that is unequivocal. It is fundamentally impossible to prove something like that with complete accuracy. And that means that if you have the death penalty, no matter how thorough your justice department is, you WILL periodically kill innocent people. Period. It is inescapable.
And that reason alone demands that we abolish the practice. Hey, if someone killed someone I love, I’d want to personally tear their throats out with my bare hands. But, that isn’t the point. It’s irrelevant. What is relevant, is that our country cannot be in the business of killing the innocent, no matter how accidental that killing may be.