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The Death Penalty: Goldberg V. Dreher


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As is the case with so many popular outrages, the clamor against the death penalty has grown in direct inverse proportion to the injustice involved. Just as the hysteria over political corruption increases as our campaigns become cleaner, the just cause for outrage over the death penalty has increased even as it has become more reliable and necessary.

Of course this sounds unbelievable. But it’s undoubtedly true (except for the period when the death penalty was unconstitutional). At one time in this country there were some 200 offenses punishable by death: Barn-burning, horse stealing, cattle rustling, etc. Moreover, state-sanctioned lynching was responsible for the unjust deaths of thousands of blacks, immigrants, and others. And, of course, in the days before Miranda rights and the like, who knows how many people were unjustly incriminated. Regardless, the media — egged on by activist groups which would be just as opposed to the death penalty if the standard of proof required 1,000 eyewitnesses, DNA evidence, and a voluntary confession — has simply decided that we have an unprecedented problem with capital punishment.

This story line has been abetted by the insistence of groups like the Death Penalty Information Center that 102 “innocent” men have been released from death row since 1972. But as Ramesh Ponnuru and others have noted, the vast majority of these men weren’t innocent at all, but merely wrongly convicted on technical grounds. Similar games are played with studies purporting to show racial disparities in the application of the death penalty. Many of these can be dismissed simply by noting the racial disparity among criminals. The rest — showing harsher penalties for murders of white victims than black — can be written-off by the fact that disproportionately white suburbs tend to impose the death penalty reliably while urban prosecutors and juries tend to be opposed to capital punishment. One need not dwell on the fact that the “enlightenment” of urban inner cities seems to buy higher murder rates.

Regardless, such studies attempting to show disparities, while interesting, miss the larger point. After all, the racial-bias allegation, if true, lends just as much weight to the argument that we should increase the number of whites (and Jews, Eskimos, Zoroastrians, Kurds, Hmong, etc) until we have a death row that looks like America. And the recent — and welcome — revelations that DNA tests have exonerated some on death row, could and should strengthen our confidence that those remaining on death row belong there. Yes, it’s unfortunate that poor people sometimes get inadequate representation in court, but that is an argument for better representation. And, besides, if they’re guilty of their crimes they are no less deserving of punishment for being poor (though the rich might be more deserving for being rich).

Which gets us as close to the heart of the matter as space here permits. If you believe capital punishment is a morally justified — or even required — tool of society, the question simply boils down to which individual deserves it. If one man deserves death for his crime, then neither his race nor the race or innocence of others has anything to do with what he deserves. We do not spare the lives of black men because we have executed too many black men today and we do not take the lives of white men because we need to fill a quota. And, we should not stop meting out punishment to the deserving simply because some people are confused on this matter.

In the abstract, the death penalty can be just, and not only just, but necessary. In times of war or national emergency, or when society has no effective way of protecting itself from convicted killers, state-sanctioned execution can be warranted. Morally, I believe that if you murder someone in cold blood, you deserve to pay with your own life (I am open to the sanctity-of-life argument against the death penalty, but not yet persuaded). That said, my view is that for practical reasons, the way contemporary America employs the death penalty does not serve the interests of justice.

Because execution is irrevocable, the state must take every precaution to make sure those it intends to execute are truly guilty. We do this to an impressive degree, and our judicial system includes levels of appeal that give added protection from error. Yet error occurs. In the past 30 years, over 100 death-row inmates have been released after serious doubt was cast on their convictions.

DNA science has in recent years brought about highly publicized exonerations of death-row inmates. Some, maybe most, of this is a case of honest human error. But there have been cases of gross prosecutorial misconduct, including shielding exculpatory evidence from defendants and their lawyers. We have seen evidence of incompetence or corruption of expert witnesses, as in the Oklahoma City case in which a number of defendants were sent to death row based in part on work done by a crime-lab technician later fired for dereliction of duty. We have seen numerous cases of poor defendants being stuck with rotten public defenders who mishandle their cases, such as the Texas death-row inmate whose lawyer fell asleep at least ten times during his capital-murder trial.

The inability of poor people to hire good lawyers brings an unavoidable class bias into the death penalty process. There is also evidence that race is a factor in the way the death penalty is used. One study found that 80 percent of those sentenced to death had killed one or more white victims, yet only 50 percent of murder victims are white.

The lengthy and costly appeals process in capital cases makes it much more expensive to put a prisoner to death than to imprison him under maximum security for life. By thoroughly isolating inmates from human contact, the new Supermax prisons, which now house the most-violent prisoners, reduce the prospect that an inmate will harm a guard or another prisoner, or escape.

Human error, corruption, class, and possibly racial bias — these all are factors that bring meaningful doubt to the administration of justice in any criminal case. We accept the risk, assured that anyone falsely convicted could be set free in the future. But you cannot pardon a corpse. I do not care if truly guilty murderers die. But as long as we live in a society in which we can adequately protect ourselves without shedding blood, thus risking killing innocent men, we should err on the side of life.



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