The Magazine


Jan 19, 1998, Vol. 3, No. 18 • By DAVID FRUM
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

Nor -- despite the rise in the aggregate number of executions -- has this unwillingness to apply the law abated in recent years. The length of time it takes to carry out a death sentence has steadily risen since 1976: The criminals executed in 1985 had spent an average of six years on death row; the criminals executed in 1990 had spent an average of eight and a quarter years; the criminals executed in 1996 had spent an average of ten and a half years.

Death-penalty opponents like to posit a choice: in the words of an August 1997 Gallup poll, "the death penalty or life in prison with absolutely no possibility of parole." In fact, no such choice exists. The people who administer the American justice system are not only reluctant to carry out death sentences, they cannot bring themselves to carry out life sentences either.

Despite the half-million slayings since 1976, there are -- as criminologist John DiIulio points out -- only about 100,000 killers in prison today. In other words, some 70 percent of the men and women who have killed a spouse, child, friend, or neighbor over the past two decades have either been released from prison or never went in the first place. The average killer, by DiIulio's estimate, spends just eight and a half years in jail.

Nobody can deny that there is something capricious about the way the death penalty is applied in America today. There are states, like New York, with death penalties on the books that have been cunningly written to ensure that nobody will ever actually receive a capital sentence. There are states, like Pennsylvania, where criminals are frequently sentenced to death, but where the sentences somehow are never put into effect. Even the apparent rise in executions this year turns out to be a fluke. Remove one state, Texas, from the total, and the number of executions in the other 49 actually dropped below that in 1996. All together, 94 percent of the killers sentenced to death since 1976 have thus far evaded the punishment meted out to them by judge and jury.

The right way to deal with that capricioushess, however, is to ensure that the death sentence, when lawfully imposed, is promptly carried out, and not -- as death-penalty critics argue -- to abandon it in the hope that if we do, the justice system will suddenly start enforcing genuine life sentences. The zeal of death-penalty opponents for life imprisonment without parole will last exactly as long as the death penalty remains legal. It remains true that any attempt to punish crime severely -- whether by execution or by life imprisonment -- generates intense opposition. The death penalty excites that opposition more fiercely than anything else right now, but if the death penalty were done away with, the locus of opposition to punishment would shift to the alleged inhumanity of "throwing away the key." Substantial numbers of people with the power to disrupt the operation of the criminal- justice system still believe that crime is a symptom of social injustice and that criminals should be cured rather than punished. The death penalty may be the top item on their agenda, but it is not the last.

David Frum is a contributing editor of THE WEEKLY STANDARD. His history of the United States in the 1970s will be published by Basic Books in 1999.