In defense of the death penalty.

• Author: Cassell, Paul

This article originally appeared in the IACJ JOURNAL, Summer 2008 issue. Reprinted with permission of the Institute for the Advancement of Criminal Justice.

ABOLITIONIST ARGUMENTS concerning the death penalty always seem a bit unsatisfying. Concepts of retribution, deterrence, and just punishment are discussed in the most thoughtful terms, but nowhere do we find a clear discussion of the crimes at issue. In some ways, these discussions are a bit like playing Hamlet without the ghost--reviewing the merits of capital punishment without revealing just what a capital crime is really like and how the victims have been brutalized. (1)

So, enter a ghost ... or rather, enter one Kenneth Allen McDuff. McDuff raped, tortured, and murdered at least nine women in Texas in the early 1990s, and probably many more. The facts of just one such killing will reveal the horror of his crimes. On December 29, 1991, in Houston, Texas, McDuff and an accomplice manhandled 28-year-old Colleen Reed into the back of a car driven by another accomplice. Reed screamed, "Not me, not me," but McDuff forced her in and tied her hands behind her back. As the accomplice drove to a remote location, McDuff repeatedly struck and raped Reed in the back seat of the car. Not finished, McDuff then got cigarettes from his accomplice, puffed them into a cherry glow, and inserted them into her vagina. Finally, as Reed pleaded for her life, McDuff killed her by crushing her neck. McDuff would later say that, "Killing a woman's like killing a chicken ... They both squawk." After America's Most Wanted aired a program about him, McDuff was arrested in 1992, convicted, and given two death sentences. He was finally executed in 1998. (2)

McDuff's torture and slaying of Reed and numerous other women are horrific standing alone, but what makes his murders even more tragic is that they were easily preventable. McDuff resembles a ghost in more ways than one. He had previously been a "dead man walking," that is, a prisoner sentenced to die. In August 1966, McDuff and an accomplice had forced a teenaged girl and two teenaged boys into the trunk of a car. McDuff drove them to a secluded spot, murdering the two boys with gunshots to the head at close range. McDuff and his companion then raped the boys' companion, Edna Sullivan. Not finished, McDuff tortured Sullivan with a soft drink bottle and a broken broom handle, finally killing her by crushing her neck. A jury convicted McDuff of the crimes, and recommended death. The judge agreed, imposing a capital sentence that was later affirmed by the Texas courts. McDuff narrowly escaped execution three times before the United States Supreme Court, in its 5-4 decision in Furman v. Georgia, invalidated all death penalties in 1972. As a result, McDuff escaped execution and was ultimately released by Texas authorities in 1989, producing the killing spree that left Colleen Reed and many other women dead.

ABOLITION OF THE DEATH PENALTY HAS ITS CONSEQUENCES

As I write this, I remain haunted by these consequences, by the story of Colleen Reed. Perhaps it is a photograph I have seen of her in a book, No Remorse, which recounts Reed's murder and the manhunt that ultimately apprehended McDuff. Reed looks so young, enthusiastic, energetic--so full of life. Perhaps it is the young girls in my neighborhood. What will they look like when they are 28 years old? Could something like this happen to them? Perhaps it is the crime victims' volunteers I know in Texas. They were galvanized by Reed's murder and have fought hard, with little recognition, to make sure that victims like Reed and others will never be forgotten. Their moving Web site (www.murdervictims.com) contains a seemingly endless string of photographs of men and women, boys and girls, who all seem full of life before their brutal murders. Behind each photograph lies a story--a tragic story--that one might recount just as well as Reed's. These photographs represent what Judge Alex Kozinsky called "the tortured voices of the victims crying out ... for vindication." (3)

Our legal system, of course, has a procedure in place for hearing these voices. A jury of 12 persons, selected for their ability to be impartial in evaluating the facts, reviews all of the evidence, including whatever evidence a defendant might choose to present, before determining whether a defendant has committed an aggravated, capital murder, and, if so, whether death is the appropriate penalty. No death penalty is ever imposed unless the jury (or, in some states, a judge) decides that the ultimate penalty is justified by the facts of the case.

Obviously, reasonable people might disagree about what constitutes fair and just punishment in particular cases. Reasonable people might likewise disagree over whether the death penalty ought to even be in the statute books. In a democratic society, disputes about appropriate sentencing are resolved through the legislative process. Today in our country, Congress and the great majority of state legislatures have authorized the use of a death sentence for aggravated murders like McDuff's.

Those who would abolish the death penalty, of course, see things differently. In the book Debating the Death Penalty, Hugo Bedau decries the "brutality and violence" of the death penalty. (4) Bryan Stevenson contends that the punishment is "rooted in hopelessness and anger." (5) And Stephen Bright maintains that the penalty is "inconsistent with the aspirations of equal justice and fairness which have long been promised in the U.S. Constitution." (6)

These views have not resonated with either the courts or the public. In 1976, the Supreme Court emphatically rejected a constitutional challenge to the death penalty. (7) Similarly, in the court of public opinion, the abolitionists have lost. A Gallup poll in October 2007 found that 69 percent of Americans favor the death penalty while only 27 percent oppose it. (8) These results come from a generic question: "Are you in favor of the death penalty for a person convicted of murder?" Support is even higher when the respondents are asked for their views not in the abstract, but in regard to a particular case. For instance, even among those who identify themselves as generally opposing the death penalty, more than half believed Oklahoma City bomber Timothy McVeigh should have been executed. (9) These numbers are especially interesting because they starkly reveal the true public view of the death penalty in the context of an actual case. The strong support for McVeigh's execution suggests that more information about the death penalty's application might, at least in some cases, increase public support.

In the face of the public's rejection of their philosophical arguments, abolitionists have recently decided to change tactics. Rather than mounting a frontal assault on capital punishment, today they make a tactical end run by stressing narrower administrative arguments--e.g., alleged racial disparities in the application of the penalty and deficiencies in appointed counsel. These new arguments seem to have gained some modest traction. Governor Ryan of Illinois, on his way out of office and contrary to previous promises made to victims' families, issued a blanket commutation of death row inmates in his state. As explained in his speech entitled "I Must Act," his concerns were defects in the way in which death sentences were determined in Illinois. (10)

These administrative arguments, however, provide no general reason for abolishing the death penalty. And the consequence of abolition for the Colleen Reeds of the future may be no less grim.

The aims of this text are two-fold. The first is to provide a brief overview of the underpinnings of the death penalty. (The death penalty is firmly grounded in many traditional rationales for punishment, a fact that may explain why death penalty abolitionists have made so little progress in challenging it head on.) The second is to examine the new wave of administrative challenges to the death penalty. Here again, these claims fail to provide a significant reason for abolishing capital punishment. (11)

Perhaps the most straightforward argument for the death penalty is that it saves innocent lives by preventing convicted murderers from killing again. If the abolitionists had not succeeded in obtaining a temporary moratorium on death penalties from 1972 to 1976, McDuff would have been executed, and Colleen Reed and at least eight other young women would be alive today.

Some sense of the risk here is conveyed by the fact that, of the roughly 52,000 state prison inmates serving time for murder, an estimated 810 had previously been convicted of murder and had killed 821 persons following those convictions. (12) Executing each of these inmates after the first murder conviction would have saved the lives of more than 800 persons.

Abolitionists respond to this argument by observing that only a fraction of murderers receive the death penalty. Bedau, for instance, argues that "the only way to [completely] prevent such recidivism would be execute every murderer--a policy that is politically unavailable and morally indefensible." (13) This response is unsatisfying. It is no indictment of death penalty procedures to learn that they do not single-mindedly pursue the goal of incapacitating murderers. Instead, the American death penalty responds to a variety of concerns--including not only incapacitation but also the possibility of rehabilitation and mercy. No other criminal justice sanction makes the prevention of recidivism its exclusive goal. Society sends most criminals to prison for a term of years, rather than for life, reserving the life sentence for the worst of the worst. Yet no one would argue that recidivism is somehow inappropriately pursued with life imprisonment, merely because such sentences are reserved for the circumstances where, in light of all relevant factors, they are most appropriate.

While the...