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?

Odyssey

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