Law & the Courts

Death-Penalty Opponents Are Being Dishonest in Their Arguments

Lethal-injection room at San Quentin State Prison in California, 2012 (Photo via Reuters)
They make the appeals process long and costly, then say the death penalty is unworkable because … it’s long and costly.

The debate over the death penalty can be infuriatingly dishonest.

Consider the April 17 broadcast of Fox News Channel’s Special Report with Bret Baier (a show on which I am an occasional commentator).

Casey Stegall reported on the legal battle in Arkansas, where officials want to execute eight death-row inmates in eleven days before their supply of midazolam expires. This is one of the drugs used to carry out lethal injections.

Stegall did his legwork. He talked to Susan Khani, the daughter of the woman murdered, execution-style, by Don Davis in 1990. She told Stegall the last quarter century has been agony for her, adding: “He is just a very cruel person. He needs to be put to death.”

Stegall then talked to the usual death-penalty opponents. First was Robert Dunham, of the Death Penalty Information Center, who said, “There is a myth that family members of murder victims will get closure out of executions. In fact, for many of the family members, that does not happen.”

So let’s start there. To say that something is a “myth” is to suggest that it is untrue. The Loch Ness Monster is a myth. Bigfoot is a myth. But on Dunham’s own terms, some family members do get closure. He didn’t say, “No family members of murder victims get closure.” He said “many,” a subjective term that could mean pretty much any number short of “most.”

Stegall then talked to Stacy Anderson, of the American Civil Liberties Union, which is concerned that we might execute the wrong person. “We know that 156 innocent people have been found on death row in the last 20 years,” she said.

Added Stegall: “The ACLU says cost is another driving force of the decline. Litigating death-penalty cases is expensive since the condemned often spend years filing appeals and lawsuits.”

This is also true. But you know what group is arguably most responsible for raising the cost of the death penalty? The American Civil Liberties Union.

There’s something remarkably cynical about the ACLU’s barraging the courts with often frivolous complaints that raise the costs of the death penalty, then pretending that their objection is the cost.

The ACLU is well within its rights to clog the courts with lawsuits. But there’s something remarkably cynical about barraging the courts with often frivolous complaints that raise the costs of the death penalty, then pretending that your objection is the cost.

Indeed, Arkansas is racing to use its drugs before they expire because death-penalty opponents have worked tirelessly to make such drugs extremely difficult to obtain.

The same cynicism applies to concerns about innocent people being wrongly executed. I’m in favor of the death penalty. You know what? I’m also passionately opposed to executing the wrong person.

But Don Davis eventually admitted to murdering Jane Daniels in cold blood after breaking into her home, so objections that some other death-row inmate might be innocent have no bearing on his case.

Ironically, immediately after Stegall’s report, anchor Bret Baier announced: “A massive manhunt is under way at this hour for a suspect who police say engaged in a heinous public crime that can truly be called a sign of the times.”

The suspect was Steve Stephens, the so-called Facebook Killer, who videotaped himself admitting that he was about to murder someone randomly. He then got out of his car, walked up to 74-year-old Robert Godwin, a father of ten and grandfather of 14, and casually executed him. Stephens then posted the video on Facebook.

Stephens killed himself two days later. But say he hadn’t. Obviously, he would have gotten a trial. Let’s suppose he was found guilty and got the death penalty. We would still be subjected to all of the sleight-of-hand rhetoric about the risk of executing innocent people, the costs, etc., even though there would be zero doubt in this instance.

We’d probably also hear that the death penalty is “racist” — Stephens was black — despite the fact that Stephens’s victim was black as well. Meanwhile, Don Davis is white.

It is entirely legitimate and honorable to oppose the death penalty on principle. The problem is that this is a constitutionally ridiculous position given that the plain text of the Constitution itself allows for the death penalty in several places.

Acolytes of the “living Constitution” want to believe that nothing bad (as defined by them) can be constitutional. I don’t think the death penalty is bad, but if you want to get rid of it, amend the Constitution. Otherwise, opponents should stop pretending their real objection is something else.

— Jonah Goldberg is a fellow at the American Enterprise Institute and a senior editor of National Review. You can write to him by e-mail at goldbergcolumn@gmail.com, or via Twitter @JonahNRO.

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