Penalty Box
George Will gets capital punishment wrong.

It hasn't caused much of a stir, but George Will just came out against the death penalty. In a column in 2000, he had said that the "careless or corrupt administration of capital punishment" may be "intolerably common," which would leave open the possibility that the solution was to improve the administration of it. But in a column last week, Will concluded that "the ultimate punishment makes reason. . . ultimately turn away." He argues that the flaws in the administration of the death penalty — the mistakes, that is, that can lead to the execution of innocent people — are ineradicable so long as fallible human beings are the administrators. Conservative columnist Dennis Prager has written a response to Will, but otherwise he has been greeted with silence. It seems to me that when one of the nation's foremost conservative journalists turns against the death penalty, that event deserves a little more attention than it has been getting. Attention, and scrutiny.

Will is influenced by Scott Turow's book Ultimate Punishment. Turow was heavily influenced by his review of the administration of capital punishment in Illinois. That state has seen a disproportionate number of cases in which truly innocent people have been sentenced to death but ultimately exonerated. (I'm using the terms "innocent" and "exonerated" in their everyday senses, unlike some anti-death-penalty activists.) But that's the problem: Illinois, and specifically Cook County in the era of the first Mayor Daley, is not representative of the nation at large today. The kind of misconduct by police and prosecutors that was involved in many of the troubling cases from that time and place is, thankfully, rare.

You could say that the Cook County cases nonetheless strengthen the argument for abolishing the death penalty. Abolition, the argument might run, would limit the damage that corruption can do. That argument assumes that something like Daley's Chicago could reemerge in American life. That seems to me unlikely, but reasonable people could certainly disagree. But the more obvious response is to enact reforms to the death penalty that would have avoided the worst cases. (An example would be keeping the death penalty from being imposed based mainly on testimony from jailhouse snitches.)

No such reforms would, however, make the possibility of error in the application of the death penalty go completely away. Is Will's position that any probability above zero is too high? We are not far from zero now. It is true that we have come close to executing innocents, as Will notes. But it is also true that there are no proven cases in which we have actually executed innocents in the last century.

If the death penalty is justified on the ground that deters murder or imposes an appropriate degree of retribution, then the rare execution of innocent people is an unavoidable side-effect of pursuing that worthy end. The state is killing innocent people as a side effect, that is, of pursuing justice or deterring crime. Such awful side effects happen all the time. Assuming, for example, that a speed limit of 65 leads to more deaths than a speed limit of 25, we would not think that this fact settles the question of what the government's policy should be.

I'm not sure that the death penalty is justified, even for people who are unquestionably guilty. But the argument from the possibility of error — which is for most people the strongest arrow in the abolitionist quiver — seems to me quite weak.