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Commentary: Justice delayed is deterrence denied

This article first appeared in the St. Louis Beacon, June 4, 2009 - In one of his early monologues, comedian Jerry Seinfeld discussed the deterrent effect of warning labels. He pointed out that since 1965, every pack of cigarettes sold in this country has featured a prominent warning from the Surgeon General advising that the product, if used as intended, will kill you. And yet, a lot of people continue to smoke.

On the other hand, some garments are sold with a label that reads, "Dry Clean Only." This instruction is invariably heeded. The same people who routinely ignore dire warnings from a credible source about a serious threat to their health would be horrified by the prospect of laundering a piece of clothing that's supposed to be dry cleaned. "You can't wash that -- you'll ruin it!"

Seinfeld's paradox was intended to draw a laugh but many true things have been said in a joke. Why would someone blithely dismiss the prospect of lung cancer but scrupulously comply with cleaning instructions? The answer to that one lies in the immediacy of risk to reward.

In the case of the smoker, the risk is perceived as remote and uncertain while the reward is immediate. After all, not every smoker dies of his bad habit; and, besides, everybody has to die eventually. He, thus, weighs the prospect of possibly fatal consequences at some unspecified future date against the instant gratification from a hit of nicotine. You can see why it's difficult for the addicted to quit smoking.

When it comes to dry cleaning, however, the punishment for your misdeed is instantaneous. Throw those $100 slacks into the washing machine, and you'll never wear them again. If the smoker believed that his next cigarette would kill him not on some distant day, but right now -- the moment he lights up -- he'd have a much easier time kicking the habit.

I was reminded of Seinfeld's droll observation because the death penalty debate has been rekindled in Missouri after a hiatus of nearly four years. One of the favorite arguments of opponents is that capital punishment is merely mean-spirited revenge because the practice fails to deter other killers. Before considering that proposition, a little history is in order.

In October of 2005, Marlin Gray was executed for his part in the rape and murder of the Kerry sisters on the Chain of Rocks Bridge in April of 1991. Because I worked that case as a detective sergeant in the Homicide Section, I won't comment on the appropriateness of the sentence because I can hardly be considered an objective observer. Suffice it to note that 14+ years separated crime from punishment.

After Gray was put to death, further executions were halted while the courts considered whether lethal injection violated the Eighth Amendment prohibition of cruel and unusual punishment. Ironically, lethal injection had been adopted originally as a more humane alternative to the gas chamber and the electric chair.

Earlier this spring, the courts finally ruled that a newly adopted injection protocol ensured that the convict would not suffer needlessly during the process. After the Missouri House voted down a proposed moratorium, executions resumed.

The first state inmate to pay the ultimate price for his crime was Dennis Skillicorn, who was executed last month for his part in the 1994 murder of Richard Drummond. Prior to his date with the gurney, supporters petitioned Gov. Jay Nixon for clemency on the grounds that Skillicorn had become a role model for other prisoners during his 15-year incarceration.

Setting aside concerns about the desirability of having convicted murderers serving as moral beacons, let's review the circumstances of the Drummond homicide -- a case in which I had no professional involvement whatsoever.

The incident was dubbed the Good Samaritan Murder because the victim had stopped to help Skillicorn and an accomplice after their car had broken down on the side of the road. The two responded to Drummond's charitable impulse by abducting and robbing him at gun point, after which they killed him and stole his car.

Skillicorn, incidentally, would later plead guilty in yet another 1994 case in which he murdered a couple in Arizona who had also stopped to offer roadside assistance.

While Skillicorn was doing his best to rid the country of do-gooders, he was already on parole for the earlier murder of an 81-year-old man during a home invasion. Though the prospect of the death penalty failed to deter his murderous impulses, neither did the rehabilitative efforts of a prison term followed by supervised release.

The problem with deterrence is that it only works on rational pessimists. These are the people who consider the consequences of their behavior because they suspect that they'll probably be arrested if they break the law.

Unfortunately, most criminals are impulsive optimists. They tend to let the future worry about itself and aren't overly concerned with the threat of punishment because they don't plan to get caught. The same principle explains why shoplifters tend not to waste time comparing sales items -- who cares what something costs if you're not going to pay for it anyway?

Further complicating the issue is the fact that the people who want to abolish capital punishment because it doesn't deter crime are the same people who do everything in their power to delay the process, thus negating any potential deterrent effect.

The next Missouri inmate slated for execution is Reginald Clemons. He's scheduled to leave this mortal coil on June 17 for his role in the murders of the Kerry sisters over 18 years ago. Think of him the next time you see a "No Smoking" sign at the dry cleaners.

M.W. Guzy is a retired St. Louis cop who currently works for the city Sheriff's Department. His column appears weekly in the Beacon.