For All the Wrong Reasons

For All the Wrong Reasons - I've never really gotten behind the death penalty.

At first, it was because I was a liberal. But even since I became a conservative, I've always been queasy about state executions. Not because I don't believe some people richly deserve it; like Lileks says this morning:

I like it in the specific examples - traitors and child-killers - but not in general, and hence I have no consistent view on the matter. I’m being subjective, which is one of the things that ought not come into play when you’re talking about using the power of the state to kill. It’s one of those complex shades-o-gray issues that eventually comes down to yes and no.

Most of the stock arguments against the death penalty just don't add up to me. According to some statistics, rumors of unfair application are grossly exaggerated. It doesn't deter crime - but justice is as much about vengeance as it is about deterrence.

And for all that, I think it's still wrong - because there is an unacceptable risk that the innocent will be executed. Conservative pundits like Ann Coulter insist that DNA testing eliminates the possibility of error. Two responses to that:

• DNA is only as accurate as law enforcement and prosecutors are honest. Our system is fraught with law enforcement who have no compunctions about hiding or destroying evidence, especially in death-penalty cases, or ethically-challenged prosecutors who know that executions equal votes (still>.
• DNA sure seems foolproof - now. Thirty years ago, they were making the same claims about hair strand analysis. People were executed based on hair strand matching. Today, it's almost never used; it's just plain inaccurate. Who knows what the future holds for DNA?

Furthermore, death penalty cases are frequently fraught with other hazards; they frequently depend on circumstantial and forensic evidence (prone to being manipulated by the unscrupulous). They frequently involve grisly or heinous crimes, which have intense emotions attached - emotions that force investigators to quick conclusions, warp testimony and jury deliberations, and are manipulated to both legal and political ends.

Am I all for executing the killers of Katie Poirier, or Julie Holmquist (oops - he did it himself) or traitors and terrorists and mass-murderers? Of course. And the rumors of the death penalty's demise are exaggerated - Brendan Miniter has a decent article on the subject today:

This isn't the 1970s. Capital punishment is here to stay, in large part because the system isn't rife with errors the way it was in the 1960s. A full 70% of Americans still support the death penalty. But they are hesitant in applying the ultimate punishment, as they should be.

The execution of criminals for the most heinous crimes still draws little objection. There weren't many tears for terrorist Timothy McVeigh when he was dispatched 2 1/2 years ago. And tolerance for terrorists hasn't grown since then. Even Sen. John Kerry, who says he opposes capital punishment, makes an exception for terrorists.

The death penalty is even gaining strength in some quarters. Kansas and New York state both reinstated it in the 1990s. Virginia--which is getting first crack at trying sniper suspects John Malvo and John Muhammed--isn't squeamish about execution. And lawmakers there are considering making it even harder for the mentally incompetent to avoid justice. Prompted by the murder of eight-year-old Kevin Shifflett in Alexandria by a deranged man two years ago, state officials are considering removing the time limit officials have to make a criminal competent enough to stand trial. Currently, Virginia law allows officials to use medication and other treatments for up to five years.

USA Today reports that a growing number of college professors openly support the death penalty. Robert Blecker of the New York Law School opens his argument with three words: "Barbara Jo Brown." The story of this 11 year-old-girl--who was abducted, raped, tortured and then killed in 1981--draws "gasps from a crowd accustomed to dealing in legal theories," according to the paper.

To sum it up, all the argments against the death penalty are weak and unconvincing...except the one that is absolute and inviolable. As long as some cops seek revenge through the system, as long as some prosecutors put votes over ethics, as long as some juries can be manipulated into putting "closure" and expedience over justice, the innocent will end up on Death Row. And as long as governors blithely assume that the system works, they will ignore the fact that evidence of innocence is not grounds for a judicial reversal, and fail to provide their final role as a fail-safe for the system (my biggest criticism of President Bush).

So in the end, I agree with Lileks:

As most of them do. I’ve changed on this topic over the years; I used to support the death penalty, but I’m less and less certain as the years go on. When it comes to horrible crimes and ironclad proof of guilt, I’m not troubled by it - but it’s not always that easy. Anyone who thinks the system works owes it to themselves to read the recent New Yorker piece by Scott Turow, who served on a panel that advised Gov. Ryan about the death penalty. Turow was on the fence before he joined the panel, but decided against capital punishment in the end. I read the article, and thought, with regrets: yep. Can't do it anymore. Can't say yes. It’s not that I oppose it completely, but I feel less uncomfortable saying No than I feel saying Yes, and this is one of those things you'd best be certain about.

Until humans are perfect, I have to choose the lesser of the evils. Sad, but true.

Posted by Mitch at January 14, 2003 06:23 AM