The Public Policy

...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...

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

...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...

...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...

...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...

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

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

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

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

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

...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 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...

...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...

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

...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...

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

...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...

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

...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...

...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...

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

...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...

...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...

...Reports...

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

...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...

...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...

...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...

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

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

...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...

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

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

...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...

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

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

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

...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...

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

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

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

...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...

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

...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...

...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...

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

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

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

...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...

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

...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...

...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...

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

...The four Nixon appointees dissented...

...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...

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

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

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

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

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

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

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

...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...

...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...

...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...

...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...

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

...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...

...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...

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

...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...

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

...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...

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

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

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

...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...

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

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

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

...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...

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

...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...

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

...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...

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

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

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

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

...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...

...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...

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

...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...

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

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

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

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

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