160 years ago yesterday

Attorney Alexander “Sandie” Pendleton notes an anniversary yesterday:

July 10 is the 160th anniversary of the abolition of the death penalty in Wisconsin. This sets Wisconsin apart from other jurisdictions. Nationally, Wisconsin law has been completely without the death penalty longer than the laws of any other state. Wisconsin also has been without the death penalty longer than any European country (even longer than the Vatican).

It may be that Wisconsin has been without the death penalty longer than any jurisdiction that has the ability to impose the death penalty (or if there is such a jurisdiction, no one has yet identified that jurisdiction to me, since I first mentioned that possibility about 20 years ago).

The 160th anniversary is a remarkable achievement for Wisconsin and its residents, one worth at least commemorating, if not celebrating. Other jurisdictions that have had the death penalty, and have frequently used the death penalty, have gone through remarkably violent upheavals over the past 160 years (think Germany, Russia, China, or Mississippi, for example). In such jurisdictions, the rule of law has been ignored or broken down for extended periods of time, and violence has swept through those societies.

In contrast, Wisconsin through this period has managed to be “that City on a Hill,” a society remarkable for its mostly law-abiding residents, who resolve their disputes and differences not through mob violence, vigilantism or insurrection, but through a system and set of laws that does not include legally imposed death as a penalty.

I think Pendleton congratulates the state too much, but his column brings up an interesting point. The death penalty divides small-government conservatives from law-and-order conservatives. The latter believe in the death penalty as, among other things, a deterrent to crime. The former questions trusting government with someone’s life.

The current Legislature appears to lack a death penalty advocate as enthusiastic as former Republican state Sen. Alan Lasee, who introduced a death penalty bill in every session of the Legislature while he was in it. You may notice that Wisconsin still doesn’t have the death penalty. Gov. Tommy Thompson once said that he’d sign a death penalty bill if it got to his desk, but no death penalty bill ever got close to his desk.

Interest in the death penalty appears to grow every time there is a particularly infamous crime in this state — Jeffrey Dahmer, for instance. Frankly I’m surprised that I haven’t heard calls for the death penalty over the past 10 months, given what I got to cover in Argyle last September.

While obviously the executed commit no more crimes, the evidence that the existence of the death penalty deters crime in general is lacking. (The last time I checked, the states with the death penalty had higher crime rates than the states that did not have the death penalty.) The two main reasons to question the death penalty’s deterrent value are, first, the amount of time between conviction and execution, and second, the crimes to which the death penalty is applied.

During the 1992 presidential campaign, Arkansas Gov. Bill Clinton dramatically left the campaign trail to return to his state to sign the death warrant for Ricky Ray Rector, who was convicted for the murder of a police officer 11 years earlier. Two years before he ran for president, Texas Gov. George W. Bush signed the death warrant for Karla Faye Tucker, who was convicted for hacking two people to death in 1984. The appeals process being what it is not only reduces the deterrent value of a sentence being carried out a decade after the crime, but it also makes the death penalty more expensive than life imprisonment, given the usual lifespan of those convicted of capital crimes.

The obvious answer is to shrink the appeals process. That, however, should make libertarians queasy. Because the criminal justice system is run by human beings, mistakes are made. Some states have a long and inglorious history of convicting the wrong people, or convicting people based on their skin color instead of their actual guilt of the crime for which they were charged. The first proven case of wrongly executing someone for a crime they did not commit will be a bad day in whichever state that happens. Wrongly imprisoned people can be released. There is no way to undo an execution.

The death penalty’s lack of deterrence value is also the result of, ironically, its lack of application. Proponents of capital punishment usually want it applied only to the most heinous crimes — murder of children, or of law enforcement officers, or murder with what usually is called “special circumstances.” (Which means that three of the five murder trials I’ve covered in whole or in part would have been capital cases in most states with the death penalty. I think none of the convicted in those three cases considered the potential penalties for what they did. Criminals usually do not consider either crime or punishment when they commit crimes.)

The death penalty might have deterrent value if it were applied to crimes beyond murders. (Beyond various kinds of murder and acts causing death, the federal death penalty applies to espionage, treason, and “Mailing of injurious articles with intent to kill.” The Uniform Code of Military Justice has 14 capital offenses, four of which apply only during wartime.) Executing drug dealers might do wonders toward reducing drug use. Executing those who commit sexual assault will probably have a significant deterrent effect upon sexual assault. But there is that sticky concept of punishment fitting the crime.

(Truth be told, there may be more deterrent value to, for instance, someone being shot to death by police during the commission of a crime, or a Wisconsinite using his concealed-carry weapon to end a criminal’s career. That’s assuming criminals think rationally about the potential consequences of getting caught committing a crime.)

This is not a call for more lenient sentences. It may be true that too many people are currently in prison because states and the federal government have created crimes that should not be crimes, or sentences that are out of proportion for the crime. It seems to me true, however, that there are people who are not in prison who should be. (Multiple-offense drunk drivers, for instance.) There are people who are sentenced to an insufficient amount of time in prison. (The defendant in the case I wrote about here, for instance, will be eligible for parole in two years, when he will be 45. The deputy sheriff he killed died at 39.) And there are people who cannot be rehabilitated and should never be allowed back into society. (Ask people who find out that a registered sex offender is moving into their community how they feel about that.)

Since I lack a belief in the perfectibility of government or mankind, I don’t have trouble with the concept that human beings may not be able to administer an appropriate punishment for a heinous crime. (I suspect at least of the two convicted in the murder trials I’ve covered will be headed toward a legendarily hot place once they depart the Earth.) A sentence of life without parole is as serious a sentence as we can have while still leaving an avenue to correct errors, accidental or intentional, in convictions and sentences.

If you have the correct level of suspicion of government, and if you believe that government should largely stay out of our lives, you should not want government to have the literal power of life or death over anyone, even those who by moral standards deserve to die for what they’ve done.

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