NOTICE: The following
article is written by the author itself and not by me, I am not trying to
violate their copyright. I will give some information on them. On this date, 30
April 1945, Adolf Hitler committed suicide by gunshot on 30
April 1945 in his Führerbunker in Berlin.
His wife Eva (née Braun) committed suicide with him by ingesting cyanide. In order to remember
that historical date when an evil man was demolished for good, I will post the
article on the death penalty from American lawyer, Bruce Fein.
ARTICLE TITLE: The Death Penalty,
but Sparingly
DATE: 1 July 2001
AUTHOR: Bruce Fein
AUTHOR
INFORMATION: Bruce Fein is a lawyer in the United States who
specializes in constitutional and international law. Fein has written numerous
articles on constitutional issues for The Washington Times, Slate.com,
The New York Times, Legal Times, and is active on the issues of
civil liberties. He has also worked for the American Enterprise Institute and
the Heritage Foundation, both conservative think tanks, as an analyst and
commentator. Fein is a principal in a government affairs and public relations
firm, The Lichfield Group, in Washington, D.C. He is also a resident scholar at
the Turkish Coalition of America.
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A
headline in the U.S. Army newspaper Stars and Stripes announcing
Hitler's death.
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Bruce
Fein
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Death penalty abolitionists are unpersuasive.
Whoever shed a tear over the trial and execution of Adolph Eichmann by Israel
for his unspeakable complicity in the Holocaust? Ditto for Japanese arch
villain Hideko Tojo for Pearl Harbor, the Rape of Nanking, the Bataan Death
March, and gruesome bacteriological experimentation on U.S. prisoners of war.
Or who would balk at capital punishment for an American who lethally poisoned hundreds
of thousands by resorting to biological or chemical contamination of the
nation's water supplies?
Some crimes betray a reptilian immorality and
beastliness that only the supreme penalty of death can adequately answer.
Anything less would trivialize the preciousness of humanity. This proposition
cannot be proven with the certitude of Euclidean geometry. It is not a matter
of doing sums. Instead, the axiom rests on intuition, instinct, and a moral
sensitivity that palpitates in the hearts of the vast majority of mankind.
Indeed, could any capital punishment abolitionist stand at the chilling
Auschwitz cemetery; look in the eyes of a Holocaust survivor whose mother,
father, and siblings had died in Hitler's cyanide chambers; and preach that the
death penalty for Der Fuhrer would have been too draconian for the genocide of
six million? The death penalty is not unique in summoning unprovable moral
assertions in its defense. The criminal law is dominated by common moral
hunches and sentiments that elude empirical proof. Theft is punished, although
a right to private property is debatable. Proudhon insisted that "property
is theft," whereas Rousseau sermonized, "The first man who, having
fenced in a piece of land, said, 'This is mine,' and found people naive enough
to believe him, that man was the true founder of civil society."
The crimes of rape, torture, treason, kidnapping,
murder, larceny, and perjury pivot on a moral code that escapes apodictic proof
by expert testimony or otherwise. But communities would plunge into anarchy-a
state of nature where life is poor, brutish, nasty, and short, according to
Hobbes-if they could not act on moral assumptions less certain than that the
sun will rise in the east and set in the west.
Relative
Arguments
Abolitionists may contend that the death penalty is
inherently immoral because governments should never take human life, no matter
what the provocation. But that is an article of faith, not of fact, just like
the opposite position held by abolitionist detractors, including myself. All of
the instrumental or complementary reasons chorused by anti-death penalty
supporters do not withstand scrutiny.
Capital punishment is not invariably degrading or
humiliating. A nontrivial number of death penalty inmates covet their punishments
and have thwarted legal efforts to challenge their sentences. To believe they
would invite degradation or humiliation is to deny human nature. Death penalty
crimes are not uniformly vulnerable to error in proving guilt. Tens of millions
witnessed Jack Ruby's assassination of Lee Harvey Oswald on television, and
companion gruesome murders have been equally beyond dispute. It might be said
that since capital punishment is irrevocable, an additional safeguard against
convicting the innocent is justified: namely, proof beyond a slight doubt, not
just beyond a reasonable doubt. But that contention militates in favor of
reform, not abolition.
Abolitionists might deplore the inferior legal
talents and assiduity of defense counsel for indigents in capital cases. The
reproach, however, argues in favor of upgrading indigent defense, a project
underway in several states-Illinois and Texas are prime examples-and the U.S.
Congress. It does not demonstrate that capital punishment is intrinsically
wrong or barbaric.
It has been urged that the death penalty
disproportionately impacts minorities. Under the U.S. Supreme Court's 1986
decision in Batson v. Kentucky, 476 U.S. 79 (1986), however, prospective
jurors may not be struck because of race, and intentional discrimination in
selecting death penalty candidates by prosecutors would violate the Fourteenth
Amendment. The next year, in McCleskey v. Kemp, 481 U.S. 279 (1987), the
Court denied that capital punishment statistics assembled in Georgia proved
that minority defendants were treated more harshly because of race than their
white counterparts in capital cases . In any event, the remedy for a racially
discriminatory death penalty is to end the racism, not the punishment.
Contrary to abolitionist arguments, evolving standards
of decency do not condemn capital punishment. In the United States, a plurality
of Americans opposed the death penalty in 1966. After the crime rate spiraled,
that sentiment galloped into a commanding majority for capital punishment. In
the wake of the Supreme Court's 1972 decision in Furman v. Georgia, 408
U.S. 238 (1972), nullifying all capital punishment laws as then applied without
certain procedural safeguards, a decisive majority of thirty-eight state
legislatures responded with revamped death penalty statutes that channeled
sentencing discretion. Sister federal death penalty statutes were also enacted.
In other words, evolving moral standards in the United States have not been a
one-way street when capital punishment has been the issue; the standards have
shifted both in favor of and against the death penalty, not remained fixed like
the North Star. The Philippines similarly ended the death penalty under
President Cory Acquino but then opted for restoration because of a meteoric
jump in crime, including death for Imelda Marcos-like corruption. Currently,
the Philippines has a moratorium on executions in place.
At present, when crime rates are tumbling, a
dwindling majority of Americans support the death penalty. That majority might
further fall to a minority. But history shows that death penalty proponents
could again capture the majority viewpoint. In any event, the evolving
standards of decency argument works more against than in support of
abolitionists.
Associate Justice William Brennan insisted in his
concurring opinion in Furman that the death penalty degrades human dignity
because it implicates the state in the deliberate extinguishment of human life.
But the ipse dixit is unconvincing. The death penalty honors human dignity by
treating the defendant as a free moral actor able to control his own destiny
for good or for ill; it does not treat him as an animal with no moral sense,
and thus subject even to butchery to satiate human gluttony. Moreover, capital
punishment celebrates the dignity of the humans whose lives were ended by the
defendant's predation. Nothing less would adequately give expression to the
sacredness of innocent life.
Other
Government Action Causing Death
Conscription and war, like the death penalty, also
involve government action that knowingly will precipitate the extinguishment of
human life. And the dead conscripts, unlike a capital criminal, will be free of
any legal or moral guilt. Indeed, they may deserve and enjoy commemoration and
burial on hallowed ground, like Civil War Union soldiers who gave that last
full measure of devotion for a new birth of freedom.
Unlike with the death penalty, of course, the
government does not know in advance the identities of its war casualties. But
it customarily knows many of its citizens will perish, whether at Gettysburg,
Iwo Jima, or the Battle of the Bulge. If government participation in the
extinguishment of human life is inherently an immoral degradation of human
dignity, then pacifism must also be advocated. That means playing spectator to
an impending Holocaust, a Pol Pot, or Rwandan genocide; a nuclear, biological,
or chemical attack on citizens of the United States; or any other evil of
nauseating proportions. Indeed, absolute pacifism would require the U.S.
government to forgo conscription and war to defend our fundamental human rights
and liberties from extinction by a foreign aggressor. But such pusillanimity
and consignment of hundreds of millions to the chains of despotism to avoid
implication in the killing of humans seems itself a disgusting affront to human
dignity. Some things are worth killing for, including a free mind and a free
country. That is why our war heroes who rained death on the enemy are lionized,
not despised.
The death penalty is first cousin to conscription
and war. In both cases, the government exercises coercion and undertakes action
that it knows will end human life. In the former, the justification is
retribution commensurate with the sacredness of the lives taken by the
defendants in cold blood. In the latter, the government sacrifices the lives of
its citizens to protect our constitutional dispensation from domestic or
foreign enemies or for related reasons of urgent national security.
In sum, the abolitionist proposition that
government implication in the extinguishment of human life is, simpliciter, an
unmitigated moral evil that should never be tolerated is untenable unless the
anti-death penalty crusaders also embrace absolute pacifism. But the latter,
history has proved (think of Munich in 1938) gives birth to wickedness and
horrors on a scale shocking to any person with a crumb of humanity.
Abolitionists have assembled no convincing moral argument to distinguish the
death penalty for retribution from conscription and war in the name of human freedom
and dignity. Yet they seem to accept the latter while savaging the former.
Justice
Marshall's Folly
Justice Thurgood Marshall, in his Furman
concurrence, staunchly maintained that the death penalty is "morally
unacceptable to the people of the United States at this time in their
history." That assertion, however, as Bentham said of the common law, is
nonsense on stilts. Justice Marshall conceded that the majority, if polled,
would favor capital punishment. But, according to the Platonic guardian, its views
were bogus because uninformed. If Americans attended the likes of Harvard Law
School to master death penalty gospel, like King Arthur's tutelage by Merlin,
then they would be convinced of capital punishment's iniquity. Furthermore,
said the jurist: "I cannot believe that at this stage in our history, the
American people would ever knowingly support purposeless vengeance [i.e.,
retribution]. Thus, I believe that the great mass of citizens would conclude on
the basis of the material already considered that the death penalty is immoral,
and therefore unconstitutional."
Marshall's idea that the law should echo what
citizens would believe if properly indoctrinated by an elite-an earmark of
tyranny from time immemorial-is too outlandish to need refutation among a
people who celebrate government of the people, by the people, and for the
people. It belongs in George Orwell's 1984.
The death penalty is an awesome punishment. It
should be applied sparingly to the most egregious and shocking crimes committed
by the most unrepentant and callous offenders. A few procedural safeguards, as
noted, should be added to ensure against convicting the innocent. But the
punishment itself should be retained as a community affirmation that to
treasure life occasionally necessitates the extinguishment of the lives of its
most abominable enemies.
