There is no pleasing Duke University law professor Brandon L. Garrett, author of the death-penalty-abolishment screed End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, though much about the current state of criminal justice should please him. Nationwide, death sentences and executions are at historic lows, yet he claims that the criminal-justice system has an appetite for vengeance. Capital-murder defendants eagerly confess under oath to horrible murders to avoid execution and take up state residence at taxpayer expense, yet he considers life without parole to be as immoral as the death penalty. Public safety has increased along with incarcerations, yet he believes that all nonviolent crimes should be decriminalized and rehabilitation for all should be the only just response to lawlessness. Erroneous convictions are rare, challenged, and corrected (and sometimes overcorrected), yet he claims that they are a significant problem that junk science and lying jailhouse snitches perpetuate. More whites than blacks are on death row even though blacks commit more murders than whites, yet the author complains that the death penalty discriminates against blacks. He alleges that the system criminalizes mental illness, yet drug and mental-health courts offer treatment in lieu of incarceration for those who are motivated. He claims that innocent people have been executed, but regarding the only two examples he offers, Texans Cameron Todd Willingham and Carlos DeLuna, evidence of guilt was overwhelming, and the defendants declined to testify to their innocence. Alas, the author’s assessment of the criminal-justice system does not withstand scrutiny.
So what is the state of the criminal-justice system? We must first dispense with the assertion that the system is convicting the innocent in substantial numbers. The author alleges that “we have no idea how many . . . people have been wrongfully convicted.” Actually, we do, and it is not very many. A 2018 article by University of Utah law professor Paul Cassell published in the University of Arizona Law Review puts the conviction-error rate for violent crimes at 0.016 percent to 0.062 percent. Coupling this statistic with the fact that not a single innocent person has ever been executed in the United States, we must conclude that the criminal justice system is healthy in important ways.
Second, we must happily acknowledge that violent crime is down from highs of 25 years ago, almost certainly because of, not in spite of, high incarceration rates. The author rejects causation here, asking, “Why are life and life-without-parole sentences growing during a time when crime is declining?” (To which we can only answer, “Fox Butterfield, is that you?”) But crime rates are still too high. Today, a main failure of the criminal-justice system is the increasing inability of our largest police forces to solve murders. Indeed, until the crime rate drops to zero, we must conclude that the incarceration rate is not as high as it needs to be.
Garrett’s title misrepresents the status quo, as the author concedes. Death-penalty statutes, present in the federal system and in 30 states, are far from anachronisms. And even where rarely imposed, the statutes demonstrate high utility by encouraging guilty pleas to life-without-parole prosecution offers. How much money does the death penalty save us by looming over capital murderers as they consider their options and choose life without parole? The author doesn’t calculate, focusing exclusively on the financial drain on local governments from death-penalty prosecutions and decades-long appeals, without subtracting the obvious savings that life without parole provides. He doesn’t like life without parole, calling it “the other death penalty,” and doesn’t credit it with any criminal-justice improvements. Because it is imposed on criminal defendants other than those who commit capital murders, he cites it as evidence that the criminal-justice system is unduly punitive. Whether this assessment is accurate is a matter of some doubt.
The death penalty is always in some jeopardy even though no one disputes that the Constitution specifically acknowledges the legality of death sentences. Constitutional invalidation must come by a court’s declaring the death penalty incompatible with the Eighth Amendment, which proscribes “cruel and unusual punishments.” The Supreme Court has helped make the death penalty unusual by limiting its application to murders, those murderers who committed their crimes as adults, and those who are mentally sound. In 1972, the Court went so far as to declare the death penalty as practiced at the time unconstitutional, a ruling that stalled executions until the Court approved some death-penalty protocols four years later.
Currently, manufacturers of lethal-injection drugs are making the death penalty more unusual by withholding supply. Because lethal injection is considered the most humane of the execution methods, the drug manufacturers’ conduct might also make executions more cruel as well as more unusual. Some members of the Supreme Court are sympathetic to the argument that liberal democracies’ abandonment of death sentences is evidence that executions are cruel in the context of current standards of decency. Death-penalty supporters must guard both the “cruel” and “unusual” fronts if they want to retain this tool.
The author’s goal is to encourage the permanent abolition of the death penalty, after which we may concentrate on providing felons and misdemeanants with the thorough defenses now reserved for capital-murder defendants. These defenses include assigning a social worker and a “PhD nonfiction writer,” as well as lawyers, to every defendant, for the author attributes the admittedly remarkable reduction in death sentences nationwide—from more than 300 per year in the mid-1990’s to 31 in 2016 (and only 20 executions)—to defense-team approaches that humanize the defendant at trial. He credits this team approach, rather than the relatively new life-without-parole option, with the recent reluctance of judges to sentence offenders to death.
His point is debatable. Even the author admits that, “Without the death penalty, no defendant would settle for a life without parole sentence,” and few capital cases are currently tried. As an example, the author considers New York state from 1995 until it abolished the death penalty in 2007. During that time, prosecutors sought the death penalty in 58 cases (out of an astonishing 900 eligible possibilities), and about half the defendants pleaded guilty before trial. Nineteen cases went to trial, after which two more defendants pleaded guilty. Seven of the 58 were sentenced to death. Five of those sentences were reversed on appeal. Notably, there were no outright acquittals. Nobody thinks these defendants were actually innocent. The system seems to work pretty well.
The author’s underlying theme is that man is perfectible, and he seems to assume that criminal defendants who are not actually innocent are mentally ill. But here the author is not being thorough. While many criminal defendants suffer from diseases of the mind—mostly depression (and the prospect of an execution is not likely to ameliorate their condition)—mental illness did not cause them to commit crimes. Mental-health advocates have been emphatic on this point. Rather, the worst violent offenders, though they may also be depressed, exhibit personality disorders, notably psychopathy, and these disorders cannot be successfully treated. This is why the mitigation hearings that the author touts as central to the defendant’s humanization do not always work in the defendant’s favor. At the mitigation hearing after a murder conviction, a psychologist may testify to the defendant’s mental illness as well as his inability to feel empathy and his disinclination to adhere to the rule of law. The author may call this testimony junk science, but the experts extract it from the same battery of tests that reveal a defendant’s mental illness.
Consequently, the author’s recommendation that “the death penalty, [life-without-parole], and ‘virtual life’ must all be replaced with a system in which rehabilitation in the outside world is always a possibility” is dangerously naive. Moreover, the claim that, if “offenders can be outright rehabilitated, the entire system can be oriented away from incarceration,” is a non sequitur. Outright rehabilitation, whatever that entails, cannot exclude separating dangerous offenders from society. And dangerous offenders are not always violent. He recommends that we “strike crimes off the books that punish nonviolent behavior,” but he fails to note that this proposal would legalize all white-collar crime, drug trafficking, child-pornography sharing, and perjury, to name just a few examples. When Garrett says, “Every person should have a chance to benefit from rehabilitation before we subject them [sic] to punishment,” we are left to wonder whether he knows how many chances at treatment in lieu of conviction the criminal defendants have been offered before their incarcerations and at what point he might be willing to give up on them.
Proposals like the author’s typically come from the left. But while formerly only liberals parroted clichés about evil being mental illness and thus properly addressed with social services rather than punishment, today conservatives, sometimes incented by foundation money or inspired by certain theologies, are piling on. Those of us who are neither rich nor deluded may pay a terrible price.
[End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, by Brandon L. Garrett (Harvard University Press) 344 pp.; $29.95]