March 11, 2008
To this point in our series on capital punishment, we saw that retribution (rather than rehabilitation, incapacitation, deterrence, or symbolism) is both the only valid reason for executing murderers and also an adequate reason for doing so. But, of course, the other side hasn't yet responded. Their objections fall roughly into three categories: practical, conceptual, or religious.
Practical Objection 1: It's unacceptable to execute innocent people.
Although any legal system assumes some danger of wrongful convictions, the obvious differences between capital punishment and our other forms of punishment are irreversibility and completeness. Even though all penalties (other than fines) take away things that cannot be returned (time, reputation, relationships, freedom), at least the loss from other punishments is only partial. Execution is total and permanent.
As death-row acquittals have shown, even the plodding deliberation of our legal process with all of its safeguards and evidentiary standards is not enough to guarantee that no innocent people get executed. This is troubling, indeed, and it's useful to see why the two most common responses fail.
One attempt begins by noting that we bias our system overwhelmingly in favor of the accused. He need not incriminate himself. He is entitled to representation. If convicted, he may avail himself of a ludicrously thorough system of appeals. And the main bias in favor of the accused is his presumption of innocence. Though such safeguards are set even higher for execution, the chance of error is nonetheless real. Merely reducing the chance of injustice on this issue is not enough.
The other attempt describes us as being in a "war against crime," and asserts that all wars entail "collateral damage" to undeserving victims. The problem with this analogy is that the differences between the pressures of fluid battlefield situations and the capital process are so vast that the analogy becomes useless.
The justification for killing the enemy when doing so entails either the chance or the certainty that noncombatants will be killed comes from the principle of "double effect." We would avoid harming the innocent if we could, but if practical factors prevent it, we accept the tragedy so long as it is still less than the good accomplished by killing the known bad guys. People often use the medical analogy of cutting off a leg to save the body or killing a few healthy cells along with the cancerous ones. The problem with this is it doesn't apply to the single individual isolated within a jail posing no imminent threat to anyone. Also, since the only thing justifying killing the innocent would be the certainty of also killing the dangerous, not knowing for sure which one stands before us renders the principle of double effect unhelpful. Also, the protection of other citizens cannot be used because the alternative is LIPWPP, not release, for a given convict.
So if these replies don't work, how can I respond, especially since I don't accept the oft-used deterrence argument? (See parts 2-3.) Well, it's because I believe we can eliminate such mistakes by having two different standards of certainty. Though guilt beyond a reasonable doubt is already a hefty presumption favoring the accused, it's clearly not enough to avoid all errors. Nor am I interested in raising it for conviction because that would mean acquitting more offenders. But why not a higher standard for sentencing?
There are two different kinds of capital cases: those with some doubt, but not a reasonable doubt, and those with no doubt at all. If we executed only those people who are guilty beyond any doubt, this objection evaporates. Thus, juries in capital cases would return one of three verdicts: not guilty, guilty beyond a reasonable doubt, and guilty beyond any doubt. Regardless of aggravating circumstances, only those in the third category would be eligible for the death penalty. Legislators will doubtless need to more precisely define this new standard, but in principle I'm confident a court can recognize cases that are beyond mistakenness. As an example, consider the case of Timothy McVeigh. People rightly worry that some capital convicts are innocent, but no one worries that he was one of them.
I have one final thought on this issue. The Bible makes two instructive points about capital cases: there must be two eyewitnesses, and the penalty for perjury is death. Just as it is right to execute murderers, it is right to execute those who conspire to murder through the legal system, assuming again that the same sorts of standards are satisfied.
Practical Objection 2: Capital punishment disproportionately targets the poor and minorities.
Properly understood, this is really just a variation of the previous objection. The reason for wrongfully executing innocent poor or minority defendants doesn't really matter. Nonetheless, the argument is gripping to some, so I will respond to it.
Clearly, minorities and the poor are over-represented on death row compared to their percentage in the general population. There are two possible reasons. Either such people are more likely to be convicted or they are more likely to be criminals. The fact that they are disproportionately present on death row fails to tell us which. However, it's worth noting that another group is disproportionately represented on death row, and no one seems to think it indicates bias in the system: men.
Constituting just 49.2 percent of the population, men are 98.4 percent of death row convicts. This is because men commit the vast majority of murders, not because the system is hopelessly female chauvinistic. Such a fact doesn't prove that all poor and minority persons on death row are guilty, but it does deflate the claim that their disproportionate representation proves systemic bias.
Another variation is the complaint that the wealthy (having access to superb counsel) or the white (having the benefit of friendly racism) regularly go free despite being guilty. Unfortunately, the fact that a thousand guilty persons are acquitted for irrational factors does nothing to dilute the justice of punishing a single person who actually committed the crime. That wealthy whites avoid just punishment does not give minorities and the poor any reason to complain if they are punished for their actual crimes. I, too, am revolted that anyone who murders would go free for any reason, but the only thing worse than accepting this unsavory fact would be to exacerbate it by under-punishing others in the interests of setting our errors as our standard for consistency.
In the next column, we will look into the conceptual objections raised against capital punishment like "killing is always wrong" or "it's cruel and unusual."
Andrew Tallman is the host of The Andrew Tallman Show and a columnist. Andrew's show is heard daily on KPXQ in Phoenix. Contact him at email@example.com