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September 20th, 2017

Insight

Does the death penalty deter?

Jeff Jacoby

By Jeff Jacoby

Published August 30, 2016

Writing in support of Proposition 62, a California ballot initiative to repeal the death penalty, former El Dorado county supervisor Ron Briggs makes the tiresomely familiar claim that "the death penalty does not make our communities any safer" and "is not a deterrent to crime."

For death penalty opponents, it is a venerable article of faith that executing murderers doesn't deter other murders and that abolishing the death penalty doesn't make killings more likely. Never mind that a thick sheaf of peer-reviewed academic studies refutes the abolitionists' belief, as, of course, does common sense: All penalties have some deterrent effect, and the more severe the penalty, the more it deters. Let a parking meter expire, and you risk a $20 ticket; park in a handicapped spot, and risk a $200 ticket. Which violation are you less likely to commit?

It doesn't take a social-science degree to grasp the real-world difference between facing vs. not facing a potential death sentence. Criminals grasp it too.

Dmitry Smirnov did. A resident of British Columbia, Smirnov was smitten with Jitka Vesel, a pretty Chicago woman he'd met online playing "World of Warcraft" in 2008 and then dated for several weeks. When Vesel ended the brief relationship, Smirnov took it badly. He returned to Canada, but kept pursuing Vesel by phone and online. When she broke off communication with him, he began plotting to kill her.

Smirnov returned to the United States in 2011, bought a gun and ammunition, and drove back to Chicago. He attached a GPS device to Vesel's car so he could track her movements. On the evening of April 13, he tailed her to the Czechoslovak Heritage Museum in Oak Park, Ill., where she was a curator and board member. When she came out after a meeting, Smirnov ambushed her. He shot her repeatedly, firing multiple rounds into the back of her head even after she had crumpled to the ground.

A deranged suitor? Maybe — but Smirnov wasn't too deranged to first check out whether Illinois was a death penalty state. He headed back to Chicago to murder Vesel only after learning that Illinois had recently abolished capital punishment. When he was questioned afterward by police, according to prosecutors, he told them he had confirmed Illinois' no-death-penalty status "as recently as the morning of the murder." In an e-mail sent to a friend after the fact, Smirnov — who voluntarily surrendered to the police — made clear that he knew what to expect. "Illinois doesn't have the death penalty, so I'll spend the rest of my life in prison," he wrote.

At trial Smirnov pleaded guilty, and was given a life sentence.

Would Jitka Vesel be alive today if Smirnov had faced the death penalty? Obviously there is no way to know for sure. But we do know for sure that when the cost of a crime goes up, the frequency of that crime goes down. Raise the price of any behavior, and fewer people will do it. The deterrent power of punishment is axiomatic; criminal law would be meaningless without it.

Still, a penalty cannot deter if it is never imposed. California hasn't executed a murderer in 10 years. Only 13 killers have been put to death since 1972, when the state legalized capital punishment. Hundreds of savage murderers have been sentenced to death — there are currently 746 inmates on California's death row — but endless legal appeals and procedures have made executions, for all intents and purposes, impossible.

Most Californians understand that their state's death penalty needs to be fixed, not abolished. Voters defeated a repeal initiative, Proposition 34, in 2012 and appear likely to do the same to Proposition 62, the new repeal measure, this November. According to a statewide poll released last week by the Institute of Governmental Studies at the University of California at Berkeley, voters oppose the new death penalty repeal measure by a 10-point margin, 55 percent to 45 percent.

On the other hand, California voters strongly support a second death penalty measure that will also be on the November ballot. Proposition 66, as summarized by the San Francisco Chronicle, would "speed up executions by setting tight deadlines for court rulings, placing some limits on appeals, and requiring many more defense lawyers to take capital cases." The UC Berkeley poll shows voters backing Proposition 66, with its mend-it-don't-end-it approach, by an overwhelming 76-to-24 ratio.

The politics of capital punishment are complicated and emotional, but human nature doesn't change. Granted, incentives and disincentives are never foolproof. Granted, there will always be cases in which deterrents don't deter. On the whole, however, when the death penalty is on the books and consistently enforced, a significant number of homicides will be prevented.

Pretty much by definition, murders that don't happen because criminals are deterred by the prospect of being executed can't be systematically tallied. But felons often disclose their motives when asked. In a striking 1961 opinion, California Supreme Court Justice Marshall McComb plumbed the files of the Los Angeles Police Department to demonstrate the deterrent effect of the death penalty on the thinking of violent criminals.

McComb listed numerous examples of homicides not committed because a would-be killer didn't want to risk capital punishment. Among them:

Margaret Elizabeth Daly, arrested for attacking Pete Gibbons with a knife, who told the investigating officers: "Yeah, I cut him and I should have done a better job. I would have killed him but I didn't want to go to the gas chamber."

Orelius Mathew Steward, imprisoned for bank robbery, who acknowledged that he had considered shooting the unaccompanied cop who arrested him: "I could have blasted him. I thought about it at the time, but I changed my mind when I thought of the gas chamber."

Paul Brusseau, convicted for a string of candy store holdups, which he committed while pretending to carry a gun. "Asked what his reason was for simulating a gun rather than using a real one, he replied that he did not want to get the gas chamber."

Criminals may be evil and pitiless, but criminality isn't a synonym for stupidity. When murder is punished with death, fewer criminals will murder. When murder is punished with nothing worse than prison, more criminals will be emboldened to kill. In the never-ending debate over capital punishment, that is always what the choice comes down to.

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