Kathryn, I reluctantly favor the death penalty. It is very reluctantly — I worked in government for a long time, so I am sympathetic to the arguments about the machinery of death in the hands of the same people who design, say, the Department of Motor Vehicles. But my major reluctance lies in something rarely discussed: the paramount role capital punishment has had in the dramatic expansion of due process rights for criminals over the last half-century. It is remarkable how many of the cases that are bad for law-enforcement involve situations where the courts, which are notoriously hostile to the death penalty, couldn’t find anything wrong with the death phase of the proceedings; to prevent execution, then, they look for other seeming unfairness (in the guilt phase) as a reason to undo the result. Those precedents, in turn, inure to the benefit not only of capital defendants but all defendants — and once they are on the books, they are steadily expanded by the lower courts.
Two things, though, keep me on the pro-side of the fence (aside, of course, from the proposition that it is for the people of the several states, as well as all the American people in federal cases, to decide democratically whether they want capital punishment):
1. Many of the worst criminals operate from jail. Much of the 1993 WTC bombing was plotted in Attica Prison where Sayyid Nosair was confined; al Qaeda founder Mamdouh Mahmud Salim nearly murdered a prison guard during an escape attempt while awaiting trial in the embassy bombing case; Sheikh Omar Abdel Rahman issued the fatwa that bin Laden credits for the 9/11 attacks from U.S. prison where he is serving a life sentence (and where he continued to try to run his Egyptian terrorist organization with the help of his lawyer, among others); and there is a long list of mafia dons, drug kingpins, and gang leaders who have plotted and ordered murders and mayhem from their jail cells. Life sentences don’t stop these savages from preying on society, and society should have a right to protect itself.
2. I’m convinced that the only reason we have available the sentence of life-imprisonment without possibility of parole is the death penalty. Human rights activists need the life-sentence as a persuasive argument against capital punishment. If there were no capital punishment, they would be arguing that life-imprisonment was cruel and excessive — and the media would be right there with them. (It’s exactly the same effect Iraq has on the Democrats’ rhetoric about the need to fight the war aggressively in Afghanistan. If there were no Iraq, Afghanistan would go back to being a quagmire.)