In countries like the Netherlands or Norway where even the most heinous premeditated political crimes, such as decapitating a national political movement or slaughtering scores of youths, are punished with mild sentences (Pym Fortuyn’s assassin is out after only 12 years, while the Norwegian right wing terrorist was sentenced to only 21 years), the need for the death penalty doesn’t come up much because sentences could first simply be made longer.

But in the U.S., where sentences are quite long (e.g., the three strikes rule demanding life sentences for three time losers), the death penalty can provide a deterrent against witness-murdering among criminals facing close to life sentences if they let the witnesses live.

Or at least it can in theory as I look at the incentive structure. But I seem to be just about the only person in America who raises the issue of deterring witness-murdering in regard to the death penalty, so maybe I’ve got this all wrong. But to me, witness-murdering isn’t a crime of passion, it’s a crime of calculation and thus demands a stronger remedy to deter.

But nobody else seems to think that way. It seems pretty obvious that barring a rise in crime like the one in the 1970s that brought the death penalty back after the Supreme Court imposed a moratorium in 1972, the death penalty is on the way out. But what will then deter criminals from witness-murdering?

From the NYT:

On Death Row With Low I.Q., and New Hope for Reprieve By LIZETTE ALVAREZ and JOHN SCHWARTZMAY 30, 2014 MIAMI — For Ted Herring, who has spent 32 years on Florida’s death row

Occasionally, Texas manages to execute some murderer with a few years of his crime, but these kind of endless delays (32 years!) are common in death penalty cases. The “law’s delay” is one reason why the error rate in executions is so low, but still …

for murdering a store clerk, signs of intellectual disability arose early and piled up quickly: He repeated first grade and got D’s and F’s through fourth grade. He read like a fourth grader at 14

So, the murderer was not illiterate; he read three grade levels behind his seventh grade class. In fact, it turns out, he was literate enough to choose to write out the stick-up note that he gave the 7-11 clerk he murdered.

and did not know that summer followed spring. By then, a psychologist in New York City, his hometown, had declared him “undoubtedly functionally retarded.” Life was no less trying in his late teens; he could not hold down a job, and something as simple as transferring buses posed a challenge. His intellectual disability was even obvious to a Florida judge, who found him “mentally retarded” and took him off death row 18 years after his original sentence. At 19, in 1981, Mr. Herring murdered a Daytona Beach 7-Eleven clerk, robbed the store and walked away with $23.84.

In 1980, I had a girlfriend who worked over the summer at a Florida 7-11. It was a murderous year in Florida and I was continually worried that some Ted Herring-like bastard was going to shoot her to keep her from testifying that he was the guy who stole the $23.84 in her till.

Please notice that shooting the witness is by no means necessarily irrational behavior.

But because Mr. Herring’s I.Q. scores were 72 and 74, just over the “bright line” cutoff of 70 used by Florida to determine intellectual aptitude, the Florida Supreme Court returned him to death row.

Nobody who writes for the New York Times ever socializes with anybody with an IQ in the 72-74 range, unless it’s Thanksgiving dinner with a relative who was born organically retarded. But in parts of Florida, IQs in the lower 70s are common.

When the Supreme Court ruled this week that states can no longer rely on a fixed I.Q. score cutoff to decide intellectual competency, it increased the likelihood that Mr. Herring and other death row inmates like him will have a chance to avoid execution. Fewer defendants are also less likely to wind up on death row in the future because their claims of intellectual disabilities will be not be as readily discounted by the courts.

How low of an IQ do you have to have to not understand that “Thou shalt not kill” applies to 7-11 clerks?

From 11th Circuit Court of Appeals:

Circumstances of the Offense: On May 29th, 1981, a customer entered a convenience store in Daytona Beach shortly after 3 a.m. and found the store clerk’s dead body lying on the floor behind the front register counter. … When the police arrived, they discovered a hold-up note requesting money. The store clerk was shot three times and the medical examiner testified that the clerk was only alive for about one minute after he was shot. The total amount missing from the cash register was $23.34. Two weeks after the aforementioned robbery and murder, Herring was observed entering and exiting a car that had been stolen in a different convenience store robbery. Herring was subsequently arrested and taken to the Daytona Beach Police Department where he was interrogated. Herring was questioned about several other robberies, including the robbery on May 29th. Herring claimed in his first statement that he had premeditated the robbery and prepared a hold-up note, but things did not go as planned. He stated that when he was approaching the counter, a different man proceeded to the counter with a gun and asked the clerk for money. Once the money was given to him, he demanded that the clerk lie on the floor. Herring claims that as all of this was occurring, he backed down the aisle looking for cover, and then the other man shot and killed the clerk and promptly left the store.

Hey, it was Florida in 1981, so two separate guys trying to rob the 7-11 simultaneously sounds pretty plausible.

This statement was taped. An investigating officer testified that Herring asked to speak with him privately after he made his first statement. Herring admitted to the officer that he did indeed kill the clerk and that the story he had just told them was false. Herring also told the officer that he shot the clerk a second time to keep him from testifying against him. Herring denied at trial that the conversation ever took place. Herring made a third statement later in the investigation, which was also taped. This time, Herring stated that upon entering the store, he asked the clerk for cigarettes, and then gave him the hold-up note. Herring said that the clerk made a movement that looked as if he was going to grab for the gun. Herring then admitted to shooting the clerk once in the head and a second time when he hit the floor. During trial, Herring testified that the last statement was made only to appease the police officers because they were harassing him. Herring did testify that he wrote the hold-up note and experts identified his fingerprints on the note. Additional Information: Herring was found guilty of a May 11th, 1981 robbery and sentenced to 25 years in prison.

Herring was facing a 25 year sentence if he got caught robbing the 7-11, so it was pretty smart of him to murder the witness, at least if the death penalty didn’t come in to play as a higher penalty.

Like I said, maybe my game-theoretic noodling over witness-murdering is totally wrong. After all, few defenders nor any opponents of the death penalty seem to have thought about it.