Jewish World Review June 7, 2002 /27 Sivan, 5762

Jeff Jacoby

Jeff Jacoby
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The cost of a death-penalty moratorium | Death penalty abolitionists don't usually mention it, but in promoting a moratorium on executions, they are urging us down a road we have taken before.

In the mid-1960s, as a number of legal challenges to capital punishment began working their way through the courts, executions in the United States came to a halt. From 56 in 1960, the number of killers put to death dropped to seven in 1965, to one in 1966, and to zero in 1967. There it stayed for the next 10 years, until the state of Utah executed Gary Gilmore in 1977 for the heartless murder of Max Jenson and Ben Bushnell. That was the only execution in 1977, and there were only two more during the next three years.

In sum, between 1965 and 1980, there was practically no death penalty in the United States, and for 10 of those 16 years -- 1967-76 -- there was *literally* no death penalty: a national moratorium.

Query: What was the effect of making capital punishment unavailable for a decade and a half? Did a moratorium on executions save innocent lives -- or cost them?

The data are brutal. Between 1965 and 1980, the number of annual murders in the United States skyrocketed from 9,960 to 23,040, a 131 percent increase. The murder rate -- homicides per 100,000 persons -- doubled from 5.1 to 10.2.

Was it just a fluke that the steepest increase in murder in US history coincided with the years when the death penalty was not available to punish it? Perhaps. Or perhaps murder becomes more attractive when potential killers know that prison is the worst outcome they can face.

Conversely, common sense suggests that there are at least some people who will not commit murder if they think it might cost them their lives. Sure enough, as executions have become more numerous, murder has declined. "From 1995 to 2000," notes Dudley Sharp of the criminal-justice reform group Justice For All, "executions averaged 71 per year, a 21,000 percent increase over the 1966-1980 period. The murder rate dropped from a high of 10.2 (per 100,000) in 1980 to 5.7 in 1999 -- a 44 percent reduction. The murder rate is now at its lowest level since 1966. "

(What is true nationally has been observed locally as well. There were 12,652 homicides in New York during the 25 years from 1940 to 1965, when New York regularly executed murderers. By contrast, during the 25 years from 1966 to 1991 there were no executions at all -- and murders quadrupled to 51,638.)

To be sure, murder rates fell in almost every state in the 1990s. But they fell the most in states that use capital punishment. Murder rates have been flat in New England, where there have been no executions. But in the region the federal Bureau of Justice Statistics calls "West South Central" -- Texas, Oklahoma, Arkansas, and Louisiana -- they dropped markedly. Half of all executions in the nation occurred in those four states.

The most striking protection of innocent life has been seen in Texas, which executes more murderers than any other state. In 1991, the Texas murder rate was 15.3 per 100,000. By 1999, it had fallen to 6.1 -- a drop of 60 percent. Within Texas, the most aggressive death penalty prosecutions are in Harris County (the Houston area). Since the resumption of executions in 1982, the annual number of Harris County murders has plummeted from 701 to 241 -- a 72 percent decrease.

Obviously, murder and the rate at which it occurs are affected by more than just the presence or absence of the death penalty. But even after taking that caveat into account, it seems irrefutably clear that when murderers are executed, innocent lives are saved. And when executions are stopped, innocent lives are lost.

Death penalty abolitionists (and a few death penalty supporters) claim that a moratorium on executions is warranted because the criminal-justice system is "broken" and the death penalty is unfairly applied. But if that is true when the punishment is death, how much more so is it true when the punishment isn't death! Death-penalty prosecutions typically undergo years of appeals, often attracting intense scrutiny and media attention. So painstaking is the super-due process of capital murder cases that for all the recent hype about innocent prisoners on death row, there is not a single proven case in modern times of an innocent person being executed in the United States.

But the due process in non-death penalty cases is not nearly as scrupulous. Everyone knows that there are innocent people, wrongly convicted and sentenced to prison -- perhaps even to life -- who are behind bars today. If the legal system's flaws justify a moratorium on capital punishment, a fortiori they justify a moratorium on imprisonment. Those who call for a moratorium on executions should be calling just as vehemently for a moratorium on prison terms. Why don't they?

The answer, of course, is that they know how ridiculous that would sound. If there are problems with the system, the system should be fixed, but refusing to punish criminals would succeed only in making society far less safe than it is today.

The same would be true of a moratorium on executions. If due process in capital murder cases can be made even more watertight, by all means let us make it so. But not by keeping the worst of our murderers alive until perfection is achieved. We've been down the moratorium road before. We know how that experiment turns out. The results are written in wrenching detail on gravestones across the land.

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Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.

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