Crossposted on Orange County Register

Remember Jesse James Hollywood? He is serving a life sentence (without the possibility of parole) for the kidnapping and murder of 15-year-old Nicholas Markowitz in August 2000. His case is a classic example of why an effective system of capital punishment must be established and preserved, and thus why Proposition 34 must be defeated Nov. 6.

After Hollywood “called his lawyer and learned the severe penalty for kidnapping, police say, [Hollywood and his accomplices] decided they had to kill Nicholas” (Los Angeles Times, Aug. 26, 2001). In other words, since the penalty for kidnapping was a life sentence, or close to it, the marginal (or “extra”) penalty for murdering the young and innocent Markowitz was perceived to be small to zero, in that the actual application of capital punishment in California was, and remains, both unusual and subject to long delay.

More generally: If a criminal faces a life term for a given crime, and if there is no effective threat of a death sentence, why not get rid of the witnesses? Stiff penalties deter crimes – the scholarly literature is quite clear that most criminals respond rationally to incentives – but if the structure of the penalty system makes even stiffer penalties difficult to impose, that structure actually can encourage crimes even more egregious.

Consider the California “three strikes” law. The first two strikes must be felonies that are serious and/or violent. But the third strike carries a life term for any felony, whether or not serious or violent, so that a two-strike criminal pondering his next offense faces the same life sentence for attempted murder, auto theft, or mere drug possession.

Yes, California has adopted discretion on the part of prosecutors and judges as to whether to count certain crimes as third strikes. But such an ad hoc approach is problematic both in practice and as a general principle in a nation that is supposed to be governed by a rule of law. (This is why conservatives interested in a serious public stance toward crime should vote “Yes” on the Proposition 36 effort to reform the “three-strikes” law so that only serious or violent third strikes may result in life sentences.)

Moreover, the third-strike discretion now used is useless in the context of the most serious crimes in the absence of capital punishment. Such crimes as attempted murder, aggravated rape or kidnapping for ransom are so egregious that they appropriately carry very stiff penalties approximating life sentences. In the absence of capital punishment, that necessarily reduces the marginal penalties for offenses even worse, a state of affairs that can be predicted to increase the rate at which such terrible crimes are committed.

One way around this deterrence problem is to reduce penalties for the large array of lesser crimes so as to preserve marginal deterrence for the more serious ones. But that would yield an increase in the rate at which the lesser crimes – many of which are hardly trivial – are committed, and might actually increase the rate at which the truly serious crimes are observed, in that some such offenses are unplanned outcomes of lesser felonies.

After all, for example, some murders committed during convenience-store holdups are not envisioned by the robbers beforehand. In short, an attempt to preserve marginal deterrence by reducing penalties across the board is likely to increase serious crime generally. And given the very small likelihood that an innocent actually will be executed, such an across-the-board reduction in penalties is likely to increase the taking of innocent life on net, in this case by criminals rather than by state governments.

Therefore, a society serious about deterring egregious crimes generally and murders in particular, and anxious to use punishment as a moral expression of the value of innocent life, must have an effective system of capital punishment.

Both the moral pursuit of justice and the practical preservation of political support require that those accused of capital crimes be given the resources – say, $500,000 – necessary for a serious defense and appellate process. This hardly would be an important fiscal burden in a state with a GDP approximating $2 trillion, whatever our economic and fiscal problems. Such a political compromise restoring an effective system of capital punishment might also include a new state court of appeal specializing in capital cases, combined with strict time limits on the number and length of appeals. This new court would be subordinate to the Supreme Court, but the latter would be likely to accept few or no appeals from the former.

The common argument that a humane society cannot risk even one execution of an innocent is misguided: Just as most of us risk death daily in order to drive automobiles, participate in extreme sports, or watch the Lifetime channel, it is axiomatic that virtually anyone would be willing to bear the infinitesimal risk of wrongful execution in order to obtain the far more important reductions in serious crime that an effective system of capital punishment makes possible.

Capital punishment is an extremely difficult business. The alternative is worse.