Sunday, June 29, 2008

Dying to Get Out of Prison

With the recent headline Supreme Court Rejects Death Penalty for Child Rape one of the most emotionally debated issues, the death penalty has again made it into the news and as an issue in the presidential election where somewhat surprisingly both candidates have criticized the Supreme Court's decision.

When arguing the pros and cons of the death penalty, most of us are thinking of the punishment for murder although treason or espionage is also punishable by death in the US. Perhaps the most famous historical example is the execution of The Rosenbergs in 1953 after being convicted of passing secrets on the US atomic bomb to the Soviet Union.

But the question for the Supreme Court was — other than the present exceptions of treason or espionage, can the death penalty be applied for other crimes when the victim did not die? The controversial decision by a narrow 5-4 margin was “no”. Those in favor of the death penalty for child rape say that although the child is not killed, he or she suffers severe emotional damage for life which is almost as bad and which deserves a similar punishment to murder. Those on the other side feel that the death penalty is questionable enough for murder so expanding it to other crimes, no matter how reprehensible, is inappropriate.

As for me, I have been in favor of the death penalty for especially heinous crimes. From just an emotional standpoint, most of us would feel that no less than death would be appropriate for somebody like Timothy McVeigh who was convicted of the Oklahoma City bombing that killed 168 people. What if we had captured Adolph Hitler alive or what if we capture and convict Osama bin Laden? In these admittedly extreme examples, I believe that most people would agree that any punishment less than death would be absurd.

But the unmistakable trend around the world is that with the notable exceptions of China and Iran, capital punishment is becoming less and less used. Many opponents feel it is barbaric; some feel that life imprisonment is a sufficient enough punishment without having to resort to the taking of lives — especially if there is no chance of parole. One of the arguments in favor of the death penalty was that life imprisonment wasn’t really for life. Looking at how it is applied around the world life imprisonment often means that the prisoner will eventually be paroled with good behavior. This is why as an alternative to the death penalty, some of the most evil criminals have been sentenced to multiple consecutive life terms to make sure parole will never happen.

But here in the US, the option of life imprisonment without possibility of parole has been advocated as a more civilized alternative to the death penalty. While some may feel that a murderer is getting off too easy by not being executed, it is worth noting that more than a few convicted murderers made the choice to demand that their legal teams stop fighting for their lives and allow their executions. Apparently they felt that that they would rather die now than endure the possibly many years until their natural deaths in prison. Even if one believes that the death penalty is a deterrent to murder (which is questionable in many people’s view), it would be most difficult in my view to make a persuasive argument that life imprisonment without parole would be any less of a deterrent.

One of the possibly persuasive arguments for the death penalty is the leverage it may give the prosecution for plea bargains. In exchange for the death penalty being dropped, a defendant may plead guilty and/or perhaps aid in the successful prosecution of others who may have been involved in the crime. But an equally effective deal in the absence of the death penalty may be the offering of the possibility of parole as part of a life sentence in exchange for cooperation.

But on the other hand, the prosecution in the infamous O.J. Simpson trial for double murder made the decision that getting a conviction of the celebrity ex football star would be more difficult if the death penalty was a possibility. So they announced up front that they would not seek the death penalty despite the especially grisly nature of these murders. The O.J. trial and its subsequent acquittal have given tremendous ammunition to those who have argued that the death penalty as applied is unfair because people with more financial resources can hire better legal representation and thus fare a lot better in the courts than those of more modest means.

Politicians who underestimate how emotional this issue is with so many voters do so at their own peril. And probably none more than Michael Dukakis who in a 1988 presidential TV debate when questioned whether he would want the death penalty if someone had raped and killed his wife. Rather than admitting what most of us would be feeling in that situation which is that we would not only want that person put to death but we would want to do the job ourselves if we could — he just replied in a strangely emotionless response that since he was against the death penalty, the answer would be no.

It is widely believed that this response alone greatly contributed to his defeat. But besides being what was arguably an unfair question, it overlooks a fundamental principle that the only chance for justice to be fair is when it is administered by people who do not have any previous connection — emotional or otherwise — to those brought to trial. After all, Lady Justice is normally depicted as wearing a blindfold. But when the death penalty is imposed with the aim of ‘closure’ for the victim’s family, as much as we grieve for them, isn’t that just an indirect way of violating this same principle?

You will never see me at any of those candlelight demonstrations all too common outside the prisons where an execution is taking place. But I very much feel that we here in the US need to do what those in so many countries around the world have already done — which is to at least seriously question whether the death penalty is really worth all of the baggage it brings.

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