Thursday, August 07, 2008

Viscerally, I support the death penalty. Rationally, I cannot.

The Death Penalty

Viscerally, I support the death penalty. Rationally, I cannot.

The Federalist Reason. In a democracy, the government's power comes from the people. Powers not conferred to the government are retained by the people. You'll note that every criminal action is styled "The State v. [Citizen]." When a people are considering what powers to confer to their government, they would be prudent to withhold from that government the power to kill the citizens, lest it be used unwisely. That power – the power to kill – should be reserved.

The Justice Reason. Our system is designed to let nineteen guilty go free rather than convict one innocent. But that is not its track record. Scores of people have been exonerated by DNA and other evidence, including many convicted of capital crimes. Think of that horror: the wrongly convicted facing death at the hands of his government while the actual killer is still at large preying on the public. But if you acknowledge the failings of the system, you have to feel at least some consternation about exacting the ultimate penalty, death.

The Legal and Moral Reason. What is murder? The intentional, premeditated taking of a human life without justification. That the death penalty constitutes the intentional and premeditated taking of the accused's life is obvious. The question, then, is whether the taking of that life is with or without justification. What is justification? A qualifying condition that makes what would otherwise be immoral conduct (murder) acceptable. In the real world, where you and I live, self defense can be a justification for killing another person. Self defense is not available to the government in the context of a death penalty execution. Revenge does not support a justification defense in the real world, although it might be considered in the penalty phase of a trial. Deterrence does not justify one citizen in killing another. Nor could a citizen claim a defense based on the popular wish that the person be killed. Simply put, no justification applies to the government's execution of the accused. The government's execution is simple murder, the premeditated and intentional taking of a human life without legal or moral justification.

The Cost. Ah, if only we were in Stalin's Russia or Mao's China. A short trial, bereft of due process and justice, and a simple bullet to the head for execution. In our country, we have rights of due process and habeas corpus; people who study history and know of the atrocities governments have wrought on their own citizens hold those rights dear. But with those rights come costs, and when you seek to execute the accused, the costs are extreme. Further, imprisonment on death row is geometrically more expensive than in the general population. The death penalty is a false economy, if you were hoping the dismal science would support any argument for the death penalty. And when you are discussing the taking of a human life, bringing up the economics of the situation is distasteful. Decisions based on economics are divorced from the concerns of morality and justice that should drive policy on this matter.

A Broader Perspective. Most countries and many states in the United States have abolished the death penalty. And they are not overrun with murder and depravity. The idea that the death penalty is holding back a crime wave or murder spree is refuted by the facts on the ground. In fact, if Texas is any indicator, the death penalty is at best non-correlative to violent crime; at worst, it has a positive correlation.

The Victim's Perspective. I respect the sentiment that anyone must have upon the loss of a loved one to a murderer. If I suffered such a loss and knew the killer's identity, I doubt that I could restrain myself from exacting the death penalty personally. But revenge is not part of the grieving process. Frankly, the victim's loved ones are the least likely source for dispassionate consideration of this issue. That the victim's son, for instance, might want the murderer killed is hardly surprising and understandable, but not very helpful towards setting policy.

Most people reach their views on this subject viscerally. I understand that, but policy should be set by people thinking rationally. Think of what our country's ideals are, or should be. Do we seek justice? What justice is there in exacting the ultimate sanction when our system of justice is imperfect? Do we seek peace? What peace is there in taking another life? Do we seek truth? What truth is found in another death?


Taken from the blog Law Odyssey.
The author of this post is a trail lawyer in Houston, TX.


Anonymous said...

The Catechism of the Council of Trent (i.e., official Church teaching) teaches that the just use of the death penalty to punish the guilty and protect the innocent "far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord."

Anonymous said...

Your argument depends on the notion that power derives from God; the argument here is that the government's power derives from the people. A secular and democratic society, in other words. "God said it's just to kill murderers" is really beside the point.

Susanne said...

Dear anonymous,

yes, the catechismn of the council of Trent was official church teaching. Please not that I wrote "was" = past tense since the so called Tridentinum or Council of Trent took place in the early 16th (!) century!

Plus what was ruled back then was actually protecting people. If you see it in it's historical context where everyone (exp. every life peer) was allowed just to have an other person executed without any trail or even based on any law (which means that for example one could get executed just because his superiour life peer didn't like the color of his hair!), this Council actually helped the people by restricting the peers rights to kill to those circumstances where the acused actually commited a crime.

BUT we still have to keep in mind that you're talking about a Council which took place 5 centuries (!) ago in a time when nobody could even imagine any law system without the death penalty.

It took place just shortly after America got discovered by Columbus, long before the Boston Tea Party - America was still ruled by the Britisch King. It took place in a time when inquisition was still normal, being a bondman was soemthing considered normal, slavery was absolutely accepted, all countries were ruled by kings who had absolute power and who were the ones making the laws...

Do you really want to bring these times back by transfering thngs from then to now? If you state that the rules of the council of Trent are still valid then you should also state that America is still supposed to be governed by the British King...

Since you're quoting this Council I would guess that you're catholic as well.

So let me please tell you some things the catholic church says about the death penalty nowadays:

Quotes from John Paul II (AP, 4/19/2004):

«I renew the appeal I made most recently at Christmas for a consensus to end the death penalty, which is both cruel and unnecessary.>>

«I hope that there no longer be recourse to capital punishment, given that states today have the means to efficaciously control crime, without definitively taking away an offender's possibility to redeem himself.»

«While civil societies have a duty to be just, they also have an obligation to be merciful.»

And I want to remind you on the Catholic Campaign to End the Use of the Death Penalty. The American Bishops started this campain and therefore show how much they oppose the Death Penalty. For more information about this, please look at:

On this page you'll also find links to the Vatican and to statements how the church sees the Death Penalty nowadays.

So here I definitely have to oppose to what you say: The death penalty is NOT any more offical church teaching!

Apart from this I also have to agree with Odysee: this article was not about the church or god ruling the United States but about the people ruling it. I am aware that by answering to your statement about church I move away from the actual content of the article and I apologize for this but on the other had - although I'm not catholic - I did not want to let your misleading statement about official church views on the Death Penalty standing here unanswered.