Is Retribution Only for a Few? : Rarity of Death Penalty Makes Most Victims Seem Diminished

Last year a 17-year-old girl was assassinated in Los Angeles because she was scheduled to testify in a criminal proceeding against a Westside street-gang leader. The killing was both premeditated and senseless.

At sentencing, one of her killers was overheard saying that he looked forward to 25 years to life in prison this way: “Goddamn . . . a big TV, a big radio and plenty of grub . . . .”

Killings committed to eliminate witnesses are one of the special circumstances that warrant a death sentence in California. Why, then, weren’t Erica Johnson’s killers sentenced to death?

Trying to answer this question provides a useful perspective concerning the effect of capital-punishment laws on the administration of criminal justice. It also shows how the loss suffered by most murder victims’ families and friends is diminished in importance by a system of capital punishment that confers the law’s ultimate penalty in less than one case in a hundred.

Many liberals see the lack of a death sentence in cases like Erica Johnson’s as further evidence of the racial bias of capital punishment in America. Erica Johnson was black, as were her killers, and there is mounting evidence that those who kill white victims are many more times as likely to receive death sentences for their crimes as are those who kill blacks.

In Georgia, where those who kill whites are 11 times more likely to receive death sentences than those who kill blacks, a constitutional challenge to this pattern has reached the U.S. Supreme Court and will be decided later this term. But Georgia is not alone in this regard. There are indications that those who kill white victims in California are four to five times as likely to receive death sentences. This just might explain the absence of the death penalty in cases like that of Erica Johnson.

There is, however, an alternative explanation that also deserves attention in this case. The prosecutor points out that evidence of the killers’ motives--the basis for imposing a death sentence--consisted solely of statements from the defendants. Given that this special circumstance--as with all special factors that generate eligibility for capital punishment--must be proved beyond a reasonable doubt, an attempt to seek the death penalty might prove difficult. The screening procedure that the district attorney uses in all potential capital cases thus rejected this case for the death penalty on racially neutral grounds--lack of sufficient evidence.

Liberal critics would respond that the amount of evidence produced by an investigation may reflect the amount of effort expended--that police and prosecutors could have tried harder. In any event, with two defendants, a determined prosecutor could purchase the testimony of the less culpable of the two with promises of leniency. The tactic is troublesome but frequently used. Why not here?

Debating these tactical issues obscures a more important insight about how the death-penalty law in California distorts the criminal-justice system. The arbitrary selection of murder defendants for death is a mathematical necessity if we are to have any death sentences. The 20 or so killers whom we execute in the United States each year compare with 20,000 killings, so execution for homicide becomes a one-in-1,000 long shot. Can we, using a morally persuasive rule of law, select the single killer who deserves execution from the 1,000 who kill? Of course not. The deeper point about the selection for death is not that it turns out to be arbitrary in a particular case. Arbitrary selection is a necessary part of retaining the institution of capital punishment in a society that will not tolerate many executions.

And having more executions will not solve the problem. If we executed 10 times as many killers as we do now, more than at any time in the 20th Century, it would still total only one execution for every 100 killings. How then to choose between terrible killings? Perhaps a lottery.

The irony is that the possibility of execution in a few cases cheats most of those who lose their loved ones to homicide out of the law’s full measure. It is human nature to want the law’s ultimate punishment as a response to a senseless killing. If capital punishment is society’s “ultimate punishment,” even in its current symbolic form, victims feel that the enormity of their loss is diminished by anything less.

Thus, a one-in-100 death penalty frustrates most of those who suffer from violent crime because it marks their loss with less than the law’s maximum punishment. More evenhanded administration of long prison terms would confer equal dignity on a larger number of cases. The death penalty would be missed only until society adjusted to a different set of maximum legal punishments. After that, the families of victims would demand those maximum prison terms instead of death.

For now, a long prison sentence seems to tell the family and friends of Erica Johnson only that her death was not as notable a loss as some others. In this sense our struggle to hang on to a death penalty for a very few shortchanges even those who have the greatest need for punishment as retribution.