THE CO-PERPETRATOR OF THE WORST terrorist attack in American history; a woman convicted of pick-axing two sleeping people to death; a cold-blooded mail-bomber on trial for two murders and two maimings: These are some of the people who have convinced sympathetic listeners that they ought to escape the maximum legal punishment for their crimes. The death penalty is unequivocally constitutional. It is supported by a crushing majority of the American people. Moralists from the authors of the Bible to John Stuart Mill have regarded it as just. And yet somehow Americans encounter the most enormous difficulty persuading their justice system to put it into effect.
Every year at about this time, the newspapers run stories about the rapid rise in criminal executions in the United States. Spread over half a dozen columns, illustrated with charts that show death sentences rocketing upward like the Dow Jones industrial average, they present an image of a country grimly bent on snuffing out as many lives as possible. The Washington Post offered a fine example of the genre on December 15, in a story observing that the number of executions nationally hit a four-decade high in 1997 and that Virginia executed more people than it had in any year since 1909. "I think the death machinery has kicked into high gear," the Post quoted the director of the American Civil Liberties Union's Capital Punishment Project as saying.
You'd think that the whole United States was crackling with the sound of the electric chair. But as so often, the newspaper stories are misleading. No, they're not literally dishonest. It is indeed true that in 1997 the United States executed twice as many criminals as in 1994, that it executed twice as many in 1994 as it had in 1989, and three times as many in 1989 as in 1983. That's one way to tell the story. But here's another: At no point in the 20 years since the Supreme Court reauthorized the death penalty has the number of murderers executed in this country exceeded the number of Americans killed by lightning.
In 1997, 74 killers were put to death, bringing the total number of executions in the United States since capital punishment resumed to 432. Over the same two decades, nearly 500,000 Americans were murdered. Assuming that most killers kill only once, the average murderer has faced a less than one in 1,000 chance of suffering the maximum theoretical legal punishment for the taking of innocent life. Let's put it this way: Committing a murder in the United States today is almost nine times safer than being drafted during the Vietnam War; the 11 million men inducted between 1965 and 1973 faced a one in 130 chance of dying in Indochina. You often hear it said that the death penalty doesn't deter. If not, it may be because, from the point of view of a killer, execution is a contingency as remote and hypothetical as going to hell. Rather more remote and hypothetical, actually.
Americans are now congratulating themselves on the spectacular fall in crime over the past three or four years. It is genuinely impressive. But it's worth remembering that today's crime rates have fallen back only to the levels that prevailed in the late 1970s (or, in the case of star pupil New York City, the late 1960s) -- levels that were at the time viewed as shocking and outrageous. By world standards, by the standards of America's own history, this country remains a terrifyingly dangerous place. Perhaps one reason that the country used not to be so dangerous was the greater willingness of courts in those days to sentence the most heinous offenders to the ultimate punishment. In the 1930s, when Harlemites could sleep on their fire escapes, the country executed between 150 and 200 criminals per year.
It is often said that the death penalty is rare because juries are reluctant to impose it: Seeing a human being in the dock, they cannot bring themselves to condemn him to death. That's untrue. From the beginning of 1977 through the end of 1996, American state and federal juries condemned more than 5,500 murderers to death. At trial, jurors are required to look the defendant in the eye, while the crime can be conjured up only by immaterial words and sorry little scraps of admissible evidence. But even so, when they encounter an atrocious crime, jurors are generally willing to enforce the law. No, it's not juries that have made the death penalty an arbitrary, freak occurrence; it's the determination of a small band of activist lawyers to thwart the commands of the law, and the even more troubling willingness of the courts to let the law be thwarted.
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.