some people have been convicted of crimes they didn’t commit, including capital crimes. An injustice can ultimately be mitigated if the penalty is imprisonment. If one is put to death for a crime he didn’t commit, that’s obviously irreversible.
While this is a legitimate theoretical argument against capital punishment, the chances of wrongful execution these days is near zero. In the cases of James Holmes and Dzhokhar Tsarnaev, the chance is absolutely zero.
Public opinion still overwhelmingly favors the death penalty for murder. According to the last , 63 favor it, 33 percent oppose. The gap has closed since 1994, when 80 percent favored it and 16 percent opposed. But support has remained in a consistent range of about 2-to-1 over the last decade.
There’s certainly a legal case for capital punishment. The Constitution explicitly allows it. The Fifth Amendment specifies the process for holding someone “to answer for a capital or otherwise infamous crime.” The 14th Amendment specifies that no person be deprived of life, liberty or property without due process of law. The courts have found no fundamental conflict with the Eighth Amendment’s prohibition of cruel and unusual punishment.
Deterrence isn’t the primary argument for the death penalty. The threat of execution clearly doesn’t deter all. In the heat of the moment, crimes of passion trump reason. And professional contract killers have already discounted the risks vs. returns of their business. If it deters some, call that a bonus.
The religious and moral case is complicated. The Sixth Commandment doesn’t prohibit killing, and certainly not of those deserving it. The Old Testament is replete with the lawful killing of sinners by man and God. Translated from the original Hebrew, the key word accurately should read, “Thou shalt not murder.” Murder is quite a different thing from justifiable killing, as in a just war, self defense or capital crime.
The overriding moral principle is “retribution.” A fundamental tenet of the law is that one who commits a crime be made to forfeit something he values commensurate with the loss he inflicted on his victim. For property theft, financial restitution and imprisonment may be sufficient. For the theft of life under the most heinous and premeditated circumstances, equivalence requires the forfeiture of something the murderer equally values: his own life.
To disparage this as societal “revenge” misrepresents and debases the principle. Legal procedures, protections and consequences in capital cases proscribe rashness or torture. Due process is followed at every turn. On the calendar, it’s certainly deliberative enough, arguably excessively so. Appeals can go on for decades.
Some opponents of capital punishment invoke humanitarian or religious objections. All lives matter and are equally valuable, they say. I disagree. Distinctions are made. Think of a natural disaster with thousands of casualties beyond the capacities of emergency medical providers, forcing them to practice triage. In that case, decisions are based not on the respective worth of individuals but on the severity of injuries and the probability of survival. Conversely, if the president is under attack, Secret Service agents are bound and committed to sacrifice their lives to protect his. Isn’t that a judgment of relative value and importance if not just practicality?
Some lives have been more valuable to society than others based on the commendable deeds and accomplishments of one compared to the misdeeds and destruction perpetrated by another: Mother Teresa vs. Adolf Hitler and his worst agents of mass extermination executed after the Nuremberg Trials. In this life, society makes that judgment. If there’s an afterlife, God can sort it out.
Our justice system isn’t perfect, but it doesn’t have to be to give Holmes and Tsarnaev what they deserve.
Freelance columnist Mike Rosen’s radio show airs weekdays from 1 to 3 p.m. on 850-KOA.
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