If we insist on having a death penalty, let’s at least have a death penalty calculus, too.

California repurposed its old gas
chamber into a lethal injection
chamber. It can be repurposed back
if lethal injections continue to be
"difficult". This photograph originally
posted by a pro death penalty group.

I have no reason to doubt the statistics from an organization called Death Penalty Focus, informing me that, as of this writing, there are 3,108 people sitting on various death rows in the United States, awaiting execution.

The end of each of them is likely to be horrifying. We have come to the point now where, thanks to a dearth of appropriate chemicals for exterminating people, “humane executions” – an oxymoron if ever there was one – are likely to be botched, with the writhing prisoner, belted to a gurney, gasping and choking for breath. 

In a very recent case, the executed prisoner took nearly 25 minutes to die. In fact, to avoid these botches, states are looking for other forms of execution which are sometimes more brutal but also more difficult to screw up, such as firing squads. 

Innocent, but executed anyway

Let’s also not forget that there are now more than a handful of stories concerning the executions of probably innocent people. It’s hard to know how many innocents were really put to death, because innocence is rarely investigated after the fact of execution. We do know that many have been saved from the death chamber by previously unused or suppressed DNA evidence.

Even so, the death penalty isn’t going away. There are too many people emotionally committed to capital punishment, and too many candidates for prosecutors’ offices who will defend it to…well, to the death of somebody else.

Personally, I am strongly opposed to the death penalty in any circumstances, But given that the death penalty is still with us, we ought to at least find better reasons to execute convicted criminals. Or not to execute them.

What we need is an impact formula, a calculus that assigns a level of gravity to the harm done to each of a convicted criminal’s victims, multiplied by the number of victims.

Who should be executed?

Just tally up the score.

Let’s say a criminal needs an impact score of 100 points to be condemned to death. And let’s say we assign only 20 points for a murder. However, we can also assign points for the victim’s pain, suffering and terror. If the victim is held prisoner, and slowly tortured to death, we might assign ten points for each half hour of pain and fear.

We could also add a point or two for the pain, suffering, shock, and loss of happiness of each of the members of the victim’s immediate family. They too are harmed, grievously and permanently, by a loved one’s murder.

If adding up all the points results in a score of 100 or more, that would send the convicted killer to death row.

However, people can suffer grievous harm even if there is no direct murder involved. Suppose someone commits an act, as Bernie Madoff did, that causes elderly people to go from prosperity to near-poverty, or to lose their pensions resulting in remaining years of  anxiety and misery, likely shortening their lives. That might be worth a point. And if 100 people are so affected, Madoff becomes a 100 point candidate for execution.

Follow the formula

In short, the intensity of suffering caused by a deliberate crime, multiplied by the  extensiveness of the suffering, equals a score that determines whether the death penalty should be imposed, regardless of whether a crime is a homicide

Under this formula, a disturbed young man who in a fit of rage lashes out and murders a parent might not face the death penalty. But (for the sake of argument let us assume the guilt of all the accused here) terrorists like Dzhokar Tsarnaev would easily qualify for execution. So would serial killers from Joseph Franklin (executed in 2014) to Richard Speck, (who died in prison of natural causes.)

On the other hand, depending on the extensiveness of the evidence and the weighting of harm done, bankers who until now have been let off with a fine (paid by their stockholders) and then enjoyed a fat bonus a year later might well find themselves on death row, or at least spending their bonuses to defend their lives. Who knows? That might include the CEO of J.P. Morgan Chase, Jamie Dimon.