4. Down with the Death Penalty

The warrior and the executioner do similar jobs. Both kill the enemies of the state. But there the similarity ends. From time immemorial the warrior has been feted and honoured. The public executioner, by contrast, has always had to lurk in the shadows, working anonymously or for a pittance. There is no glory in what he does.

That sense of discomfort and shame is why a growing number of countries have washed their hands off judicial execution. Today nearly all western democracies, as well as dozens of other countries, have abandoned capital punishment. Most of the countries, which still use it with much frequency, such as China or Iran, are authoritarian states without independent legal systems.

The single most defiant – and most notable – exception to this trend is the United States. To the irritation of many of its allies, the American government regularly defends the death penalty in international forums, reflecting widespread support for capital punishment at home. Too often, death-penalty opponents have reacted to America's stubborn exceptionalism on this issue with knee-jerk condemnation, or despair. Instead they should relish the chance to convert the world's most vigorous democracy to a saner policy. For they have a better case.

Three basic arguments are made for the death penalty: that it deters others, saves innocent lives by ensuring that murderers can never kill again, and inflicts on them the punishment they deserve. The first two, utilitarian arguments, do not stand up to scrutiny, while the moral claim for retribution, although naturally more difficult to refute, can be answered.

Despite voluminous academic studies of American executions and crime rates, there is no solid evidence that the death penalty is any more effective at deterring murder than long terms of imprisonment. This seems counter-intuitive. Surely death must deter someone. But the kinds of people who kill are rarely equipped, or in a proper emotional state, to make fine calculations about the consequences. Moreover, even for those who are, decades of imprisonment may be as great a deterrent as the remote prospect of execution. Although European countries have abolished the death penalty, their rates of violent crime have risen more slowly than crime overall. Indeed, their murder rates remain far below America's.

It is indisputable that executing a murderer guarantees that he cannot kill again, and this argument once carried considerable weight in societies that could not afford to imprison offenders for long periods. But today most countries, and especially America, can afford this. Opinion polls show that support for the death penalty among Americans drops sharply when life imprisonment without parole is the alternative. Executions are not needed to protect the public.

Against the dubious benefits of capital punishment must be weighed its undoubted drawbacks. It is a dangerous power to give any government, and has been grossly abused by many to kill political opponents and other inconvenient people under the colour of law. Even America, with all its legal guarantees and complex system of appeals, has not been able to apply it fairly or consistently. Worst of all, it is irrevocable. Mistakes can never be rectified. America, like all countries, which use the death penalty, has executed innocents. This is too high a price to pay for an unnecessary punishment.

Where does this leave retribution? Some crimes are so heinous that a societal cost-benefit analysis hardly appears relevant. Death alone seems sufficient. And yet, as many relatives of murder victims have discovered, real retribution can never be achieved. For example, the only way to re pay fully those who have committed multiple murder, or killed in a ghastly way, would be to torture them physically in turn, or to strive to make them endure repeatedly the torments of death. Modern societies have rightly turned away from such practices as barbaric, tempering their demands for retribution in recognition that tit-for-tat vengeance is beyond the reach of human justice. That is where the death penalty, too, belongs.

In 1976, after short lull, the court allowed executions to proceed again under redrafted state statutes. Since then it has frequently changed the rules, most recently restricting appeal avenues so as to shorten the time between conviction and execution, now averaging almost ten years. Even so, researchers still find inequities in how the death penalty is applied. Avoiding a death sentence depends a lot on having a good lawyer. Not surprisingly, rich, well-educated murderers rarely get a capital sentence. And the risk of executing the innocent remains very real. Since 1973, 78 people have been released from death row after evidence of their innocence emerged.

The attempt to apply the death penalty fairly has exhausted even some of its staunchest supporters on the bench. After retiring from the Supreme Court, Lewis Powell, the author of a landmark 1987 decision upholding Georgia's death penalty even in the face of an undisputed statistical study showing racial bias in its application, said that he regretted the decision and backed abolition.

America's stubborn retention of the death penalty is usually seen as the abolitionist movement's greatest defeat. And yet in the long term it may prove to be one of its greatest assets. If even America, with its complex legal guarantees and elaborate court system, cannot apply the death penalty fairly or avoid condemning the innocent, then do executions have a place in any society which values justice?