It is time to end the tough talk about deterrence and the death penalty and face up to the fact that as a society we lack the collective will to execute criminals in the numbers our rhetoric requires. Currently, there are more than 1,100 men and women on death rows awaiting execution. Even if we began to execute them at the rate of four a day, six days a week, it would take almost a year before we could clear the backlog. In the meantime, more than 200 additional people would have been condemned to death. We have never had that many executions. Not even in 18th- and 19th-century England, when the "Bloody Code" contained more than 250 capital offenses were that many executions performed.
Today in America we have more than 18,000 criminal homicides annually. The criminological literature on deterrence indicates that without at least a minimal degree of certainty, the severity of punishment will have a negligible effect on the rate at which offenses are committed. Currently the chance of the murderer's actually being put to death is less than one in 20,000.
In order to achieve a deterrent effect, we would have to execute at least 1,800 people a year. If we set aside the first Monday of each month as execution day--our day of death--we would have over 150 executions a month. We simply do not have the public or collective will be bring about this terrible carnage.
Some death row observers would have us believe that our reluctance to execute criminals has to do with a growing concern for the sanctity of human life. In reality, we are unable to execute the men and women now on death rows because we are caught in a powerful bind. On the one hand, to execute criminals in the number that our rhetoric and deterrence theory require would be an unprecedented assault on our sensibilities. This may have been possible in the 17th and 18th centuries, when executions were public ceremonies with elaborate rituals that united spectators, condemned criminals and officials in an affirmation of the mores of society. But it is not possible today. The inexorable drift of the history of the death penalty has been from brutal, public executions to less gruesome and allegedly painless private affairs. Each so-called advancement in the technique of killing has resulted only in a temporary increase in public acceptance of legally sanctioned murder. Law and morality no longer meet at the public scaffold.
On the other hand, unless we execute at least 10 percent of our convicted murderers, we will have to surrender any possible deterrent effects of capital punishment. Inasmuch as the moral justification for the death penalty rests on its utilitarian value in protecting the lives of innocent victims, a basic rationale for capital punishment would be eliminated.
We could select a few offenders each year for execution and hope that their deaths would serve as a lesson to our children and as an example to those who might otherwise contemplate the taking of a human life. But such an approach would violate the principle that like cases should be treated in like manner. So much of the average American sense of justice and fairness is combined in this principle that we cannot simply disregard it in the implementation of the death penalty.
In the past six years, six men who did not differ in important ways from the other 175,000 murderers in this country have been executed. How long can we live with this disparity and still regard our society as just and equitable?
Perhaps these objections could be overcome if we had a clear consensus on the deserved nature of punishment. But we are a society distrustful of courts and other public institutions, suspicious of its own values, and deeply committed to a belief in the sovereignty of the individual. In order to impose the ultimate penalty, we need to place full responsibility on the individual for his behavior.
The concept of full responsibility, however, is better fitted to an earlier age. We know too much about the workings of the human mind, the vagaries of human nature, the political, economic, and cultural components to which crime is intricately related. Our understanding of unlawful behavior no longer rests solely on a 19th-century free-will view of humankind. If it did, executions would still be public and justice would not have to be served in private.
Since we lack the public will to execute our criminals, the current debate concerning the possible deterrent effect and moral justification for the death penalty is irrelevant. For better or for worse (we happen to think that it is both), the officially sanctioned execution of convicted criminals has become an anachronism in late 20th-century America. True, over 70 percent of Americans now say that they favor capital punishment, but how many of them are prepared for 150 executions a month? Not many we suppose.