The liberal Washington State Supreme Court has just declared the death penalty unconstitutional under the state constitution. Its ruling in State v. Gregory would not be persuasive to anyone who doesn’t already dislike the death penalty. But the state supreme court is the final authority on what the state constitution means, so its decision to overturn all death sentences in that state can’t be appealed to the U.S. Supreme Court, no matter how wrong it may be. Its decision will result in innocent people being murdered, because the death penalty deters would-be murderers, and prevents murderers from going on to commit additional murders in the future.
The court wrongly found that the state death penalty is imposed in “an arbitrary and racially biased manner and fails to serve any legitimate penological goals.” The statistical analysis that the court relied upon was deeply flawed. It would not have passed muster in federal court, where statistics must meet the tests laid down by the Supreme Court’s Daubert and Bazemore decisions.
That jurisprudence requires that all major variables be properly taken into account, without cherry-picking data, meaning that even statistical analyses superior to that relied on by the Washington Supreme Court have been found unreliable. (See, e.g., People Who Care v. Rockford Board of Education, 111 F.3d 528, 537 (7th Cir. 1997) (discussing study of racial achievement gap and need to take into account the relevant variables that might rule out racial bias)).
The court’s skepticism about whether the death penalty serves any legitimate goals was unwarranted. It deters murders. In some circumstances, there obviously is no alternative to the death penalty. If an inmate is already doing a life sentence for murder, and murders a prison guard or another inmate, only the death penalty will have any effect, because giving the inmate a new, redundant life sentence adds nothing to his prior life sentence.
The death penalty is applied all too infrequently, to only a tiny percentage of murderers. If it were applied more frequently, it would save many innocent lives. Multiple studies have found that the death penalty saves lives by deterring murder more effectively than mere imprisonment. As the Associated Press noted in 2007:
Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14).
Additional studies are described by David Mulhausen of the Heritage Foundation at this link. He discusses “two studies by Paul R. Zimmerman, a Federal Communications Commission economist,” that “also support the deterrent effect of capital punishment.” Indeed, “each additional execution, on average, results in 14 fewer murders.”
Deterrence of would-be killers is not the only way the death penalty saves innocent lives. It also prevents murderers from being able to commit more murders while in prison. A 2016 Washington Post article gave the example of a serial killer, Darren Witmer. He “killed two senior citizens, got locked up,” killed his cellmate, and then “tried to extort money” from a “a 75-year-old woman living by herself north of Washington”:
Witmer, 45, figured he had nothing to lose.
He was serving three life sentences in Maryland for killing three people. In 1994, Witmer broke into the Frederick, Md., apartment of an 83-year-old veteran and beat him to death for $300. Days later, he forced a 78-year-old man in the same town to write a check for $1,000 before he killed him with a small ice chipper. In prison, Witmer strangled his cellmate.
Now, writing his letter — to a stranger whose address he’d swiped from his dead cellmate’s records — Witmer got to his point.
He had “people in position” ready to slip into the woman’s home, carry her to the trunk of a car, take her to a river and kill her. “Trust me,” Witmer wrote, “you won’t even see it coming.”
But for $700 sent to his prison account, Witmer said, she could avoid death.
The woman called the police. Officers paid Witmer a visit. He was charged with extortion. And in a Rockville courtroom Friday, six years were added atop his life sentences.
These crimes occurred due to the lack of an effective death penalty in Maryland, which formally abolished the death penalty in 2013.
If Witmer had been executed for his first two murders, rather than merely imprisoned, he could never have “strangled his cellmate.” He paid no real penalty for strangling his cellmate, since he was already serving a life sentence for killing other people, so the life sentence he got for killing his cellmate added nothing to his existing life sentence. He also had “nothing to lose” by extorting money from his elderly victim.
As Ernest van den Haag notes in “Capital Punishment Saves Innocent Lives,” just sentencing killers to prison does not prevent them from killing again: “[I]ncarcerated murderers can escape, be released on furlough, or kill other prisoners or prison staff.”
So much suffering by innocent people is averted by giving murderers the death penalty, that a federal judge was right to observe that “He who is kind to the cruel is cruel to the kind.”