On election day, Californians will go to the polls to decide whether to abolish the death penalty in California's Proposition 34. There is reason to believe this could end up a very close vote in California. The merits or demerits of the death penalty must be analyzed, and when that is done I believe there is a stronger case for retaining the punishment. There are a number of arguments made against the death penalty. Each must be addressed one at a time.
IS THE DEATH PENALTY IMMORAL?
Chief Judge of the United States Court of Appeals for the
Ninth Circuit Judge Alex Kozinski stated in a 2002 Hoover Institution interview:
Ninth Circuit Judge Alex Kozinski stated in a 2002 Hoover Institution interview:
One of the most commonly heard arguments against the death penalty is in fact one of the very weakest. It is the argument that the death penalty is immoral. The governor of Oregon, John Kitzhaber, announced in November 2011 that he would not allow any more executions in his state during his time in office, declaring that "I simply cannot participate in something I believe morally wrong." The The New York Times reported, however, that when "[a]sked with whom (Kitzhaber) had consulted, he said, 'Mostly myself.'""Immanuel Kant said it best. He said a society that is not willing to demand a life of somebody who has taken somebody else's life is simply immoral. So the question really... when the system works and when you manage to identify somebody who has done such heinous evil, do we as a society have a right to take his life? I think the answer's plainly yes. And I would go with Kant and I would say it is immoral for us not to."
What he should have done is consult some of the most noted minds of the enlightenment. The famous philosopher John Locke (1632-1704), whose ideas were a precursor to the likes of James Madison, wrote about the death penalty in his "Second Treatise On Government." This excerpt from the treatise eloquently presents a coherent philosophical perspective on the death penalty:
Every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, which no reparation can compensate, by the example of the punishment that attends it from every body, and also to secure men from the attempts of a criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a tyger, one of those wild savage beasts, with whom men can have no society nor security: and upon this is grounded that great law of nature, 'Whoso sheddeth man's blood, by man shall his blood be shed.' And Cain was so fully convinced, that every one had a right to destroy such a criminal, that after the murder of his brother, he cries out, 'Every one that findeth me, shall slay me'; so plain was it writ in the hearts of all mankind. By the same reason may a man in the state of nature punish the lesser breaches of that law. It will perhaps be demanded, with death? I answer, each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like. Every offence, that can be committed in the state of nature, may in the state of nature be also punished equally, and as far forth as it may, in a commonwealth."The idea that the death penalty is immoral lacks clear moral thinking. If one makes the claim that executing murderers is evil, it cheapens the value of human life. By letting those who kill know that our society believes their crime is worthy of the most ultimate punishment, the importance of protecting life is impressed upon the people at large. There is no more appropriate fashion for society to fulfill its necessity of displaying its moral outrage at particularly heinous crimes.
Societies that have given up the death penalty have soon devolved into giving up a proper sense of justice. New soft heads continue to emerge reforming a national stance on crime. Anders Behring Breivik publicly massacred 77 people and injured scores more in Norway in July 2011. He was sentenced to 21 years, or just over 3 months per victim. When he becomes eligible for parole in 2033, he will be only 53. In prison, he will have access to exercise equipment and be able to watch television. He will be able to work on a laptop (without internet). Norway is not an outlier here, this reflects the wider Western European approach to punishment. It is not one that America should feel impelled to move toward.
Yet the American Civil Liberties Union (ACLU), in an April 9, 2007 website section titled "The Death Penalty: Questions and Answers," offered the following:
"When the government metes out vengeance disguised as justice, it becomes complicit with killers in devaluing human life and human dignity. In civilized society, we reject the principle of literally doing to criminals what they do to their victims: The penalty for rape cannot be rape, or for arson, the burning down of the arsonist's house. We should not, therefore, punish the murderer with death... Capital punishment is a barbaric remnant of uncivilized society."Unfortunately this is very clouded moral thinking. The main reason for this being unacceptably impalpable in addressing questions of right and wrong is that it refuses to address the easiest cases of murder. Allow me to ask anyone that agrees with the ACLU sentiment one very simple question: Should Adolf Eichmann, one of the major Nazi organizers of the Holocaust, captured by Israel's Mossad intelligence agency and put on trial in the Jewish State, not have faced execution? He was charged with the task of providing for the mass deportation of Jews to ghettos and extermination camps in German-occupied Eastern Europe. Anyone that believes that this man deserved to live his life in prison is morally compromised. The absoluteness of his guilt, matched with the horror of his crime, demand that his punishment be that which he deprived from his millions of victims. That being the gift of life.
It is a self-evident truth that all men are created equal and endowed by their Creator with the unalienable right to life. But that is precisely why murder must be punished with execution. It is the only punishment fitting for depriving another of this most basic right. No other punishment can provide true justice. The reason this is the case is that to allow a true murderer to live every day of his life unto his natural death, to take every breath he can, is to allow him precisely what he denied to his victim. It is precisely because he committed an irreversible crime that the only moral consequence is the irreversible punishment.
The point is that one need not look to the case of Adolf Eichmann to understand this to be the case. The scale of Eichmann's crimes make his execution less questionable to most rational people. But if there is absolute guilt, then murdering a few or even a single person must have the same principle applied to it. This is demanded by truly appreciating the value of every life. Absolute guilt for murder must result in capital punishment. The Fort Hood shooting was a massacre that took place on November 5, 2009. The Islamist army gunman killed 13 people and wounded 29 others. Every person who simply watched the news that day knows he is the killer of all those people. The trial is nothing but a necessary legal formality. Would death penalty abolitionists seriously allow for Nidal Malik Hasan to not confront the possibility of capital punishment? No form of justice should allow Nidal Malik Hasan to not face the death penalty. He, and others who have clearly killed even a single person, should indeed face the punishment that deprives the killer of that which he took from his victims. Thankfully, the military court under which Hasan is being tried will almost certainly punish him with death.
Many complain that maintaining the death penalty simply costs too much. According to the Santa Clara District Attorney, "States that have abolished the death penalty have not shown cost savings." But even if that were not the case, the question to ask is whether it is worth paying the price for society to demonstrate that those who commit murder will pay the ultimate price. It's not so much a matter of price, it is about whether it is a price worth paying.
DOES THE DEATH PENALTY DETER MURDER?
Opponents of the death penalty claim that capital punishment does not deter murder. This will and can continue to be hotly debated. Most other penalties are admitted to have the ability to deter crime. Why should the death penalty be the exception to the rule? The idea, however, that the death penalty absolutely cannot deter murder is not worthy of consideration. It is important to at least recognize that there are studies showing that not to be the case. "Science does really draw a conclusion. It did. There is no question about it," said Naci Mocan, an economics professor at the University of Colorado at Denver. "The conclusion is there is a deterrent effect." There are indeed studies that say the death penalty deters crime, as reported by the Associated Press in July 2007:
A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. "The results are robust, they don't really go away," he said. "I oppose the death penalty. But my results show that the death penalty (deters) - what am I going to do, hide them?" Statistical studies like his are among a dozen papers since 2001 that capital punishment has deterrent effects. They all explore the same basic theory - if the cost of something (be it the purchase of an apple or the act of killing someone) becomes too high, people will change their behavior (forego apples or shy from murder). To explore the question, they look at executions and homicides, by year and by state or county, trying to tease out the impact of the death penalty on homicides by accounting for other factors, such as unemployment data and per capita income, the probabilities of arrest and conviction, and more. Among the conclusions:
- Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14).
- The Illinois moratorium on executions in 2000 led to 150 additional homicides over four years following, according to a 2006 study by professors at the University of Houston.
- Speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented, according to a 2004 study by an Emory University professor.
In 2005, there were 16,692 cases of murder and nonnegligent manslaughter nationally. There were 60 executions.The importance of these studies cannot be underscored. So much so that the AP article itself declares that the "[t]he studies' conclusions drew a philosophical response from a well-known liberal law professor, University of Chicago's Cass Sunstein. A critic of the death penalty, in 2005 he co-authored a paper titled 'Is capital punishment morally required?' 'If it's the case that executing murderers prevents the execution of innocents by murderers, then the moral evaluation is not simple,' he told The Associated Press. 'Abolitionists or others, like me, who are skeptical about the death penalty haven't given adequate consideration to the possibility that innocent life is saved by the death penalty.'" Regardless of the merits of the debate, it is an astounding admission from Cass Sunstein that the whole idea of the deterrent effect of capital punishment has not even been "given adequate consideration" by the most prestigious of opponents to the death penalty.
John Stuart Mill (1806-1873) was the author of "On Liberty" (1859) and other famous works. He gave an important speech in favor of capital punishment. In it he said in part:
When there has been brought home to any one, by conclusive evidence, the greatest crime known to the law; and when the attendant circumstances suggest no palliation of the guilt, no hope that the culprit may even yet not be unworthy to live among mankind, nothing to make it probable that the crime was an exception to his general character rather than a consequence of it, then I confess it appears to me that to deprive the criminal of the life of which he has proved himself to be unworthy--solemnly to blot him out from the fellowship of mankind and from the catalogue of the living--is the most appropriate as it is certainly the most impressive, mode in which society can attach to so great a crime the penal consequences which for the security of life it is indispensable to annex to it. I defend this penalty, when confined to atrocious cases, on the very ground on which it is commonly attacked--on that of humanity to the criminal; as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime.The media should report on executions not only to provide the journalistic story. Those reports should include emphasis on the crimes of the convicted killers, in order to promote the deterrent effect and save innocent lives.
One of the weakest arguments I have heard against the deterrent effect of the death penalty is the claim that life without parole is actually a worse penalty than death. As the argument goes, to spend every day as a prisoner is worse than having your life taken. This is utter nonsense. If this were the case there would not be endless appeals from death row inmates lasting decades to avoid the ultimate punishment. No one would plead guilty to avoid capital punishment. Most murderers value their own lives, even if it is spent in prison. They did not value the lives of those they killed, which is why they should not be allowed to spend that time at all.
THE ARGUMENT FROM INNOCENTS
The most powerful argument against the death penalty is that the judge and jury will wrongfully convict an innocent person to be sent to death. Columnist Charley Reese said the following as relates to an innocent accidentally executed:
"As for not being able to correct a 'mistake,' so what. Virtually all accidental deaths are deaths by mistake. Why impose a standard of perfection only on the criminal-justice system? There are no perfect human institutions. Our system is, more than any other, designed to protect the rights of the defendant, and the chance of a truly innocent person being executed is exceedingly slim. But if it happens, it happens just as things happen to people every day."Remaining unwilling to accept this attitude of living with very rare accidents for the greater good of overall justice and criminal deterrence is legitimate. This is of course a very serious issue with the death penalty that needs to be considered.
Former Democratic Mayor of New York Ed Koch wrote in May 2012:
I do not believe there is a single case in the U.S. where academics and law enforcement authorities agree that an innocent person has been put to death. Yes, innocent people have been convicted at trial, but as a result of appeals, they have been exonerated before the sentence was carried out. Even if opponents were to cite such a case, I would still support having the penalty available as an option in particularly heinous murders. The reason being that many more innocent lives would be saved because of the deterrence factor.Oregon District Attorney Josh Marquis had this to say about the effectiveness of our justice system:
Even according to Barry Scheck's Innocence Project there have only been 174 DNA exonerations for ALL crimes, more than 90% of which were not murder, let alone death penalty cases. In fact, the number of inmates taken off death row specifically because DNA cleared them is....FIVE. An additional nine inmates who were once on death row were eventually fully exonerated by DNA evidence. Some might say, 14 or 140, it doesn't make a difference. That makes as much sense as being told you have a 1% mortality risk from a surgical procedure versus a 10% risk.The extent to which innocents have been executed is itself something worthy of debate and discussion. But in some states the chances are astronomically small that innocents will face death. California will soon vote on whether it will abolish the death penalty. Since 1976, California has executed only 13 people. Proponents of Proposition 34 are unable to point to a case in California in which the system has allowed an innocent person to be executed. DNA testing is said to have revealed a number of cases of wrongful executions nationwide. But with the advent of modern DNA testing, it should be noted, the chances of executing an innocent person becomes far more remote.
Furthermore, one must consider that thousands of American citizens are murdered each year by released and paroled criminals. In fact, prison guards have been killed by those already serving life in prison, and those convicts face no justice for their additional crime. Yet at least in some States, such as South Dakota, murdering a prison guard can still mean punishment, with the penalty of death. Add to this the potential deterrent effect of the death penalty already discussed. There is therefore strong reason to believe that the death penalty saves far more innocent lives than it may accidentally have taken.
THE DIFFERENCE BETWEEN ABORTION AND THE DEATH PENALTY
One of the most common attacks against those who oppose abortion but support the death penalty is that they are hypocrites. That to be "pro-life" and for the death penalty is inherently inconsistent. This is not a cogent argument at all. It is so easily explained away, yet is necessary to rebut it given how often this criticism is heard.
The simple answer is that those who are "pro-life" are in favor of protecting innocent life. This does not extend to those clearly guilty of murder and therefore deserving of death. It's a simple matter of innocence or guilt. That which is aborted is innocent, and that which is on death row is a guilty killer.
WHY PROSECUTORS NEED THE DEATH PENALTY TO PROMOTE JUSTICE
One point that is almost always overlooked in the death penalty debate is how the death penalty promotes justice, even if that is making sure that a murderer remains in prison for life without parole. In a State with capital punishment, prosecutors can and should let the guilty defendant know they will see to have him put on death row. If the defendant decides to plea bargain and state that he is guilty before the court, the result will still be a far more appropriate punishment such as life without parole. The death penalty, even when not used, is a bargaining chip that ensures justice is served. Without it, when a party guilty of murder admits his crime, he does so on agreements that ensure the possibility of parole and a much lighter sentence. This would result in a penal system far more unjust than the one that allows for the death penalty.
THE LEGAL ARGUMENT OF "CRUEL AND UNUSUAL PUNISHMENT"
Let no one fool you and try and claim that the death penalty is unconstitutional and forbidden by the Eighth Amendment prohibition of cruel and unusual punishments. The Eighth Amendment is something at greater length I have explained in an article elsewhere, which includes discussion of recent death penalty jurisprudence. It's not a difficult proposition. The Constitution itself provides for the death penalty. The 5th Amendment declares that "No person shall be held to answer for a capital, or otherwise infamous crime, unless...," at which point it goes on to enumerate requirements of indictment. The 5th Amendment continues: "...nor be deprived of life, liberty, or property, without due process of law." This invariably means that one can be deprived of life if there is due process of law. The 14th Amendment has the same due process language applied to the States. As Justice Antonin Scalia says, "The death penalty? Give me a break. It's easy." It's actually self-evident that the death penalty is Constitutional.
CONCLUSION
There are good reasons to maintain the death penalty. It is required by the most basic notions of justice. The victim's loved ones should know that a killer will not have access to the right to life that he so cruelly deprived of another. There are studies showing the deterrent effect of the death penalty, and there is reason to believe it saves innocent lives. The threat of innocent people being executed should be taken seriously, and all steps short of abolition should be taken to make that a near impossibility, but there is good cause to think it is not as serious a consideration as so many opponents of the punishment claim. It certainly is incoherent to claim that one cannot be against abortion and in favor of the death penalty. Our legal system needs the death penalty to promote justice, and it is most assuredly not a punishment forbidden by the Constitution. When Californians go to the polls this election, they should vote to maintain the penalty. Tweet
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