Starting in February, Slate began a series of monthly dialogues between two of the nation’s most esteemed jurists, Richard A. Posner and Jed S. Rakoff. These conversations will be moderated by Joel Cohen, author of the book Blindfolds Off: Judges on How They Decide. The subject of their last conversation was how to weigh the law and common sense on the bench. This month’s conversation is about the death penalty.
Joel Cohen: The death penalty is in the news again: Arkansas is awash in litigation over planning to execute eight inmates in a 10-day period—four having already been executed within eight days. The principal obstacle, of course, is the controversy over midazolam, the sedative component of a drug cocktail that is supposed to put the subject into a state of unconscious painlessness at the time of death. Midazolam’s efficacy has a spotty record at best.
But my question is not about those cases or executions. It is more specific: In his first speech to Congress, President Trump, who has previously advocated the death penalty in another context, continued to refer to the danger of “radical Islamic terrorism.” And the prospect of terrorism, Islamic or not, remains a looming, perhaps existential, threat to America. So assume this: A terrorist is convicted of blowing up a university building killing 100 people, injuring many more. He is unrepentant. There are no mitigating factors nor any question of his mental competency. If anyone deserves the death penalty, it is he. But should the government be allowed to carry out his death sentence?
Judge Richard A. Posner: I don’t see any argument against the death penalty in your hypothetical, which of course echoes the Timothy McVeigh case, in which 168 people were killed. He was executed, and I’m not aware of any backlash. The execution of mass murderers seems to me unobjectionable.
Judge Jed S. Rakoff: No one sheds a tear for McVeigh, but that misses the legal, and moral, issue. After decades of trying, the legislatures and courts have yet to devise procedures permitting the execution of people like McVeigh while preventing the execution of wrongly convicted innocents. Thanks to organizations like the Innocence Project, DNA testing has now scientifically established the factual innocence of dozens of people that juries found guilty, beyond a reasonable doubt, of crimes so awful that judges imposed death sentences—only to discover, often years later, that terrible mistakes had been made. The fault is not with the statutes but with our fact-finding methods, which are far from perfect and operate particularly poorly when the crime is so horrific as to cry out for vengeance. So the reason for outlawing the death penalty in all cases, including McVeigh’s, has nothing to do with McVeigh. It’s about protecting against the virtual certainty that such laws will lead us to execute a great many innocent people who otherwise would be exonerated.
Posner: I’m not sure that “a great many innocent people” is correct. One would like to know the percentage of innocent people (or guilty but not responsible, because of mental illness, or even just believed possibly innocent) who were executed in the United States in the past 10 years. As you note, the most authoritative estimate of innocent defendants executed is 4 percent. If correct, 96 percent are guilty. Whether they “deserve” death in some philosophical sense, I imagine that if no one, however clearly guilty, was executed for murder (especially multiple or mass murder), there would be more murders—especially if life imprisonment were also considered too harsh a punishment. I would particularly like to see statistics on the percentage of multiple or mass murderer defendants who were executed and later found innocent. I suspect—I’m guessing—that it is less than 4 percent.
Rakoff: Over the past 20 years, there have been no fewer than 115 people on death row who have been fully exonerated, not just because they were “believed possibly innocent,” but because the courts determined they were actually innocent. But these were the lucky ones; since they were still alive, groups like the Innocence Project took up their causes. Conversely, no one can say how many defendants who were executed were in fact innocent, because there is not the same motive to investigate their cases and, in any case, DNA samples (the primary cause of the exonerations) do not exist in many cases. Nevertheless, a careful academic study published in 2014 by the National Academy of Sciences offered the “conservative” estimate that at least 4 percent of those defendants executed in the U.S. since 1973 were factually innocent. This conclusion has been widely accepted and, so far as I am aware, has not been challenged.
Cohen: Judge Rakoff, you are troubled about innocents potentially being sentenced to death– you even issued an opinion saying the death penalty is unconstitutional on that ground. Judge Posner, you seem mildly concerned but don’t see the injustice as so great statistically. Still, neither of you seem bothered—call it “cruel and unusual punishment” or not—that, in employing the death penalty, the state actually kills people in the name of justice. Nor do you argue much over its deterrent value.
Posner: I’m no more bothered by the cruelty issue than I am by killing enemy soldiers in wartime, or civilians in war who are in the way, so to speak (during World War II, we killed civilians but also shortened the war). If a defendant is proved to be a murderer (and was not insane when he murdered), I don’t see the objection to executing him, especially if the threat of capital punishment has at least some deterrent effect—and especially if, like McVeigh and Dylann Roof and others, the defendant murders many people, or a child, or commits a racially motivated murder, or is a foreign terrorist. By the way, Joel, your question makes me wonder if you’re a vegetarian. Personally, I think hunting harmless animals is worse than executing murderers.
Rakoff: The “deterrent effect” of the death penalty is at best a hunch, but most (though not all) academic studies suggest that it has little or no effect. This is because most murders (the chief offense for which the death penalty is imposed) are the product of violent, uncontrolled rages or mental infirmities and delusions. For many decades there has been general agreement among criminologists that deterrence is chiefly a function of the likelihood of getting caught rather than the penalty. And even among those small number of would-be murderers (if any) who take account of possible punishment in deciding whether to commit their crimes, can anyone really state with confidence that a meaningfully greater number are deterred by the death penalty as opposed to life imprisonment? Of course, there’s greater emotional satisfaction from seeing a horrendous murderer put to death rather than seeing him rot in jail, though that emotional surge tends to be much stronger at the time of conviction and not when the defendant is actually executed, often years later. But as a practical matter, the big difference between execution and life imprisonment is the possibility of wrongly convicted defendants being freed and able to resume their lives. Before we remove this possibility from the 4 percent (or more) who fit this category, we ought to have a pretty strong rationale for doing so. War may provide such a rationale, but a doubtful deterrent effect or an immediate emotional charge does not. In truth, in the U.S. today, survival of the death penalty is largely a function of cultural norms rather than rational reflection. That is why, in practice, it chiefly survives in the South—where, however, it appears to have had very little effect in deterring the relatively high murder rates of those states.
Posner: I am not persuaded. You imply that the death penalty has no deterrent effect at all. That seems improbable. The fact that Southern states have high murder rates should make one wonder whether those rates wouldn’t be even higher were there no death penalty. I wonder whether you believe that the death penalty has always and everywhere been de trop, too much, or that something happened to enable us to dispense with it without thereby increasing the murder rate.
Cohen: Judge Posner, your position on the death penalty seems to me very hard-line. Just last week, the Supreme Court, 5–4, denied Ledell Lee of Arkansas a stay of execution—Lee having argued, the same as other Arkansas death row inmates, that the use of midazolam in the death penalty cocktail presents too great a risk of a very painful execution. A New York Times editorial last week powerfully attacked the court—and in particular Justice Neil Gorsuch for his (first) significant vote as a justice in denying the stay. Does your approbation of the death penalty have no bounds?
Posner: Of course it has bounds! I don’t approve of the death penalty for crimes other than murder, or for that matter for all murders, and concretely I don’t approve of the Supreme Court’s decision in the Lee case upholding Lee’s execution. Its excoriation by the New York Times is entirely sound. There were two reasons not to execute Lee. One was the use of midazolam as one of the execution drugs—a drug that has caused numerous botched executions by failing to render the person being executed unconscious promptly. The other is the extraordinarily bleak background of Lee coupled with his totally inadequate representation at his trial, summarized in the editorial as follows:
[L]ike so many others condemned to die around the country, [Lee] was a walking catalog of reasons the American death penalty is a travesty.
Evidence that Mr. Lee was intellectually disabled and suffered from fetal alcohol syndrome was never introduced into court, mainly because he had egregiously bad representation. One of his lawyers was so drunk in court that a federal judge reviewing the case later said he could tell simply by reading the transcripts.
Cohen: Judge Rakoff, given your views stated above, this might be a softball: Even if “guilt,” fair trial, and sufficient mental competency were scientifically ascertainable, would the pain risk in using midazolam, for you, nonetheless be the last nail in the coffin for imposing the death penalty?
Rakoff: Like many unrealistic hypothetical questions, your question is flawed, Joel, because it asks the answerer to assume a set of facts—the certainty of guilt, competency, etc. —that are most unlikely ever to exist. It’s a little like asking: If heaven is perfect, would a spot on Earth where there was total peace and tranquility still not qualify as a heaven if its inhabitants included lawyers? Moreover, I don’t know enough about midazolam to have the basis for formulating an opinion about its use. But I am reminded of the fact that when the electric chair was first conceived—by a dentist (of course) named Alfred Southwick—it was touted as being painless. But when it was first actually used (on a man named William Kemmler), the results were so physically horrific that George Westinghouse, whose company made the product, stated that “They could have done better using an ax.”