The Public Policy

...Justice Blackmun said in effect, "I don't like capital punishment any more than you, but it's a legislative, not a judicial, question...

...If the slowdown improves gas mileage from, say, thirteen to fifteen miles-per-gallon, it will save seventenths of one gallon on the sixty-five mile trip (4.3 v. 5 gals...

...In the first place, no state is willing to use the death penalty in a way that would yield good experimental data on the issue of deterrence...

...The problems with the "constitutional" approach are fairly apparent...

...Both questions are fairly interesting and fairly complex...

...Their argxnnent was summarized by Sgt...

...make the hard decisions the present monetary crisis obviously requires, but it is easier to increase social security payments, raise the minimum wage, pay people for not working, to moralize about Watergate, the military-indnstrial complex, poverty, civil rights, whatever it may be, than to face up to the problems which may well destroy our country, to bring order into our fiscal affairs and restore confidence in our currency...

...The closing paragraphs of Justice Marshall's opinion provide a good The Alternative February 1974 11 illustration: "In striking down capital punishment, this Court does not malign our system of government---on the contrary, it pays homage to it...

...e.g., William Buckley no longer drives a Honda 50 to work, but squanders gas in a Renault 16 instead...

...must be kept below market-clearing equilibrium levels, because poor people buy only what they "need" now and could not afford any at a higher price...

...s t year, the United States Supreme Court spent six months pondering the constitutionality of capital punishment...

...If fuel were infinitely valuable, that would be all the more reason to let the price rise...

...But a healthy public policy, it seems to me, deals with precisely such ethical premises...

...Justice Douglas thought capital punishment was "cruel and unusual" because most criminals sentenced to death were poor and/or black raising the question of whether Douglas sees a different constitutional standard for middie-class whites...

...The Fifth Amendment, for example, refers to the death penalty in three places: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury _9 . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or l i m b . . , nor be deprived of life, liberty, or property without due process of law...

...and we act to our own detriment as a people when we dodge that task by falsely setting issues in either a '~utilitarian" or an overly formal, quasi-constitutional context...

...Is there not, therefore, some justification for the assertion that the malaise of the intellect, ml.q is a consequence of the degradation of the book...

...What followed was a good illustration of the typical capital punishment debate in America...

...it is instead a question of whether or not we, as a society, say that a murderer deserves to be executed...

...But here again, the most serious flaw in the deterrence argument is that it says nothing about the most important question...

...That is, the salesman's time is valued at a little more than a penny a minute, or about $.84 12 The Alternative February 1974...

...That is the key question of capital punishment...

...but those limitations become rather silly unless one presupposes (as did the authors of the Constitution) that the government d/d have a right in some circumstances to deprive a citizen of his life...

...namely, '~Are there crimes for which an individual in our society deserves to die...

...True, each of these sections involves limitations on the government's right to place the life a citizen in jeopardy...

...The four Nixon appointees dissented...

...And, finally, of what use is the "freedom to read" if we read the wrong things...

...2) No serious study shows that it does not...

...Whether that patrolman's answer is right or wrong, his question at least is correct...

...Reports...

...The Fourteenth Amendment repeats the "due process" clause and applies it directly to the states...

...in the end, it threw up its hands and produced nine separate opinions which collectively consumed more than 100 pages in the official U.S...

...The most serious objection, however, is that strained and artful interpretations of the lang~mge of the Constitution tell one nothing about the basic ethical choice involved in the debate over capital punishment...

...It simply will not do, for example, to talk about fuel "savings" from various schemes without consideration of the costs involved...

...The next day, an assortment of civil libertarians and others responded to this emotional demonstration by the police, calling the death penalty '13arbaric" and claiming that the evidence was "overwhelming" that capital punishment was not a deterrent to murder...

...It is not a question of whether the death penalty deters people in general from committing murder, nor whether it protects society from a particular murderer, nor any other possible utilitarian argument...

...Second, it is strained to the point of being fraudulent, as even a cursory examination of the Constitution reveals...

...Now, even in an age of impulsive pragmatism, there are still rigorous and sloppy ways of analyzing problems...

...We achieve 'a major milestone on the long road up from barbarism,' and join the approximately seventy other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment...

...I don't care," he said, '~r capital punishment is a deterrent or not...

...But time, income, and comfort are valuable too, and it isn't obvious to my children that Christmas lights are "inessential...

...To be sure, a direct constitutional prohibition, such as the one concerning laws about religion, does to a degree foreclose ethical debate on certain important issues...

...It is almost embarrassing to translate that into a demand curve, showing how much is purchased at each price: The wealthy, on the other hand, have no needs, but they do "squander" energy regardless of price...

...Obviously, our leader will have to do something, anything and everything, about the gap...

...238), centered on the question of whether or not the death penalty amounted to "cruel and unusual punishment," and was hence prohibited by the Eighth Amendment to the Constitution...

...Wilson says, quite simply, that 1) No serious study shows definitively that capital punishment deters murder...

...Last month in Boston, a hold-up man was also confronted with a life-and-death decision...

...he resolved his problem (with considerably less reflection than the Court's) by the simple expedient of putting a bullet through the head of police detective John Schroeder...

...These, it must be remembered, are all people who have gone to college, many of them, in fact, teach in colleges, read books, but none not recommended by the New York Times or the New York Review of Books, and take themselves and each other with the utmost seriousness...

...But where the "constitutional prohibition" t~sts on the tortured reasoning of a decision like Furman~ it is clear that the Constitution is being used as a shield for something else...

...It is the type of question we avoid, for as Wilson suggests, '~we are an increasingly secular and positivist society that has confidence in its ethical premises...

...Justices Brennan and Marshall (especially the latter) seemed to think that capital punishment in any form was "cruel and unusual...

...Resolving the issue of whether our society should or should not have capital punishment does not depend on either the subtleties of constitutional debate nor on a proliferation of statistical studies of deterrence...

...And even if a state was willing to try, the effects of region, race, and class on murder rates are so important that, in Wilson's words, "the additional importance of the death penalty or its absence is likely to be slight...

...Proponents ot capital punishment argue that their adversaries have an unsophisticated and overly mechanical notion of how deterrence works, and claim that comparative murder rate studies prove nothing since the states involved weren't enforcing capital punishment when it was on the books...

...It approaches absurdity to argue that in the Eight Amendment these same authors overturned that right in including the prohibition against "cruel and unusual punishment...

...The arguments are by now a familiar refrain...

...Chief Justice Burger and Justice Powell seemed to agree with both ideas...

...At forty cents a gallon, the trade-off is between a twenty-eight cent monetary saving (7/10 of forty cents) and the loss of twenty minutes' time...

...In short, the relative utility of the death penalty as a deterrent to murder does not answer the basic ethical question: Shall society, by its laws, deem that death is the appropriate punishment for one who takes htunan life...

...and like most such discussions, neither side says much that impresses the other...

...and both will probably occupy some portion of the public spotlight for the foreseeable future...

...Chester Broderick, head of the Boston Patrolman's Association, who said, "No one can tell me or any other policeman that capital punishment is not a deterrent" and "If this bill deters one warped mind from killing a police officer, it will have been a good thing...

...All in all, it was a thorough mess, and it left to the nation's lawyers, judges, legislators, governors, and attorneys general the challenging task of figuring out yet another permutation of the supreme law of the land...

...It is unfortunate, then, that neither can shed any light on the ultimate ethical question which underlies, or should underlie, the whole issue of capital punishment in the first place...

...hinted that he might sign a narrower measure...

...Each side attempts, with fairly sophisticated arguments, to place the so-called '~burden of proof" on the other...

...Our intellectuals' utter lack of common sense and their inability to see things in proper proportion are shown by their rapturous enthusiasm for a presidential candidate who could seriously propose to give every man, woman, and child in the country $1,000...

...Opponents of capital punishment say that there is no evidence that the death penalty deters the comission of murder, and point to studies showing no increase in murder rates after the abolition of the death penalty in a given jurisdiction...

...Justices White and Stewart rounded out the disparate "majority" in opinions that stressed the infrequency of executions (i.e., "unusual" in its most literal sense), and the discretion given to judges and juries in recommending the death s e n t e n c e - - leaving one to wonder whether frequent or mandatory executions would be permiss ible...

...These are hard times for economists, who have to read the most inane fulminations about shortages and suffer the label of "ideologue" if they dare to mention price...

...and 3) There is no way to find out one way or the other because the methodological problems are insurmountable...

...The issue of "deterrence" is a much more common focus of debate than the constitutional one, but it is similarly flawed...

...but it is equally clear, I trust, that he is no longer in any way "interpreting" a constitution...

...and thus, in standard political fashion, pleased absolutely no one...

...As is obvious from the above, capital punishment is a matter of considerable public controversy...

...The problem, however, proved too difficult for the nation's court of last appeal...

...First, as is demonstrated by the nine separate opinions in Furman v. Georg/a, it is hopelessly muddied...

...At this point, Marshall is giving his views on the ethics of execution...

...The Governor waffled: he let the bill die without his signature (a pocket veto...

...It is an emotional, heated, occasionally angry dispute...

...In other words, the demand curve of an affluent family supposedly goes straight up, as in the first graph...

...After Schroeder's funeral, over 600 policemen marched en masse to the Massachusetts statehouse and demanded that Governor Francis Sargent sign a bill which, in response to Furman, would have reenacted capital punishment for a select group of crimes, including the murder of a policeman...

...The nation needs seventeen million barrels of petroleum a day, we're told, and only has fifteen...

...If someone kills me or one of my brother police officers, there is simply no place for that person in society...

...The point of all this is fairly straightforward...

...Example: A salesman who used to cover sixty-five miles in an hour now needs about an hour and twenty minutes to cover that distance at 50 m.p.h...

...In the Supreme Court, the question is cast in terms of "constitutionality;," in Massachusetts and the growing number of other states grappling with post-Furman capital punishment bills, the storm rages mainly over the issue of deterrence...

...They are also the people who write the editorials and review the books in the New York Times and the Washington Post, give the commencement addresses in the prestige colleges---the last time around, we may be sure, about Watergate--in short, speak for our society, and, as I have said, they read books, at least the books written or recommended by their colleagues and counterparts...

...In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute...

...That is the issue--the only issue-and it will not go away...

...The case, Furman v. Georg/a (408 U.S...

...Justice Rehnquist's view could be summarized as "Once again, the court is turning the Constitution into a vehicle for its own moral predilections...

...Examining both the "constitutional" and the "deterrence" debates shows that on this fundamental question both controversies are silent...

...In a recent article for the New York Times Magazine, Harvard's James Q. Wilson summarizes the arguments on either side, and points out that the debate on the utilitarian issue of deterrence is irresolvable...

...To any freshman in economics, such rhetoric looks like this: Burn your text if instead it says something like this: Next, we're told that prices (all prices...

...One of the Boston patrolmen who marched up Beacon Hill to lobby for capital punishment summarized this very well...

...Indeed, at its most philosophical level, it is not even a question of whether a murderer should be executed...

...his house isn't air conditioned, but the wine cellar is--first things first...