RALEIGH — The political movement continues to convince the North Carolina General Assembly to enact a moratorium on the administration of capital punishment. As I have previously written, I know that many of these activists are motivated by a deeply felt belief in the immorality of execution, while others are honestly troubled about the effects of wealth, luck, and incompetent legal representation on the likelihood of ending up on death row.
The argument they most often choose to advance in public, for obvious reasons given recent news events, is the possibility that innocent people on death row will be executed for crimes they did not commit. This would be a gross travesty of justice, of course, but it has yet to be demonstrated to my knowledge in a single instance. Yes, people on death row have been freed after the discovery of prosecutorial conduct or exculpatory evidence. That shows that the criminal-justice system is imperfect and that the appellate process is necessary, not that innocence has been commonplace on death row or present at executions.
Recognizing the uncertainties involved, moratorium advocates stress that all they want to do is to suspend executions so that a thorough study and reform effort can run their course. What is the harm in that? Best case, innocent lives are spared. Worst case, executions can resume at a later date.
This position depends on a key assumption, which turns out to be an article of faith coming capital-punishment foes: that the application of the death penalty has no effect on the propensity of individuals to commit capital, that is heinous, murders. Notice that I did not suggest that capital punishment deters all kinds of crime, or even all kinds of homicides. Activists are correct when they say that many homicides are committed as “crimes of passion” during which it is unreasonable to assume that perpetrators are thinking rationally and carefully weighing the likelihood of being apprehended, tried, convicted, and executed for the act.
But there are homicides, now at least half of homicides, that are premeditated and that are preceded by the criminal version of a rational calculus. The most common example is the felony murder. If a rapist or armed robber knows that killing his victim will silence perhaps the only witness to his crime, and that doing so will reduce the chance of his apprehension without elevating the potential punishment to death if he is caught, he will feel less of a compunction about doing so. Other premeditated homicides, comprising a variety of motivations and scenarios, are also theoretically deterred by capital punishment.
Is it just theoretical? Death-penalty foes would have you think that the deterrence hypothesis has been disproven, but that is far from the case. More precisely, the direction of the most recent research in the area appears to be moving in the opposite direction — that is, towards validating the deterrence effect of capital punishment. This should not be surprising given that the death penalty was only reinstated (after a “moratorium” imposed by a deluded Supreme Court) in the mid-1970s and it took many years after that for states to begin executing a significant number of murderers. Thus the number of data points available for study was small until relatively recent times.
Simple correlations between execution states and murder rates won’t suffice. For one thing, some states have adopted capital punishment but performed few if any executions. Others have been more serious about it. And states that started out with relatively low murder rates, for various reasons, were obviously the least likely to feel public pressure to reinstate the death penalty, so if you rely on simple correlations you are going to be led astray.
More useful are examinations of the data that attempt to show changes in murder rates over time and whether they relate to actual execution rates, not the existence of the penalty or its use as a sentence. There are plenty of new studies using these data and demonstratng a deterrence effect, including work by three Emory University researchers, a SUNY economist, an economist who happens to work for the FCC, and a paper just out from the Journal of Law and Economics that examines all death sentences handed out in the United States between 1977 and 1997. This last work, by Naci Mocan of the University of Colorado at Denver and Kaj Gittings at Cornell, found that all other things being equal, “each additional execution decreases homicides by about five, and each additional commutation increases homicides by the same amount, while an additional removal from death row generates one additional murder.”
Perhaps the most troubling research I ran across, from two professors at the University of Houston, looked at a period in the mid-1990s in Texas during which the courts virtually closed down executions in the state. This moratorium-like event was widely publicized, as was the resumption of executions later on. The researchers found that the homicide rate spiked during this period, even after adjusting for other factors. “The execution hiatus, therefore, appears to have spared few, if any, condemned prisoners while the citizens of Texas experienced a net 90 additional innocent lives lost to homicide,” they concluded. “Politicians contemplating moratoriums may wish to consider the possibility that a seemingly innocuous moratorium on executions could very well come at a heavy cost.”
The growing body of evidence in favor of the deterrence hypothesis may be compelling or it may be flawed. I’m not qualified to judge its academic rigor. What I will say is that, in my opinion, the burden of proof here is on the advocates of a moratorium to show why North Carolinians should risk a resulting increase in homicides in order to conduct a study of the state’s death penalty. Given even the possibility that dozens of innocent lives or more would be lost during such a period, how could should a reckless experiment be justified?
Hood is president of the John Locke Foundation and publisher of Carolina Journal.