THE DEATH PENALTY DEBATE: CAN CAPITAL PUNISHMENT BE SIMILAR TO THE ARMED FORCES?

NOTE: I will post a debate on the death penalty every fortnight on the blog. It will be twice in a month.

ANTI-DEATH PENALTY:

In this article from Andrew Cohen on Friday 20 July 2012: How Does the Death Penalty Differ From Drone Strikes? He quotes from three experts (anti-death penalty, please see below). He wrote: “If we place drone strikes on one end of the capital punishment continuum and traditional death penalty cases at another point, then what should we make of the clear difference between the two points? And in which direction is the law's politic moving? Will the quick, efficient nature of "targeted killings" (no trials, no appeals, no defense attorneys) push lawmakers toward a further streamlining of procedural protections in traditional capital cases? Isn't that a far more likely scenario than seeing suspects like Al-Aulaqi get a hearing before they are killed by a missile strike?”

I put a form of this question to Denny LeBoeuf, director of the ACLU Capital Punishment Project. Her response surprised me -- not because of the frustration she expresses, but because of the short distance she believes exists between "targeted killings" and (let's call it) "traditional" capital punishment: 

The continuum of government killing that ends in drone strikes, a streamlined new version of the death penalty, connects the modern era of executions to its unsavory history in the United States. The question is not how far is the process of inflicting drone death from the ideal of a full trial with a panoply of rights and resources and process, but how far is it from the reality in the states that carry out executions? And how far is either from their historical origins in the United States, with its history of lynching and government complicity in lawless killings?...

States with the death penalty barely give lip service to the ideals of due process and adequate resources. The law that tolerates the execution of the probably innocent Troy Davis and the execution of the intellectually disabled Yokamon Hearn can accept the idea of killing a citizen without providing even a sleeping lawyer. The whole enterprise demonstrates Justice Kennedy's 2008 observation in Kennedy v. Louisiana that: "[w]hen the law punishes by death, it risks its own sudden descent into brutality."... The use of drones and other summary executions makes that risk a reality. [Some citations omitted]

I put a form of the same question to Ken Roth, the executive director of Human Rights Watch. He responded in a much different way. Recognizing the government's legal authority to use lethal force in non-custodial situations, either against combatants on the battlefield or as a last resort against those posing an imminent lethal threat to others, Roth contends that the Obama Administration even so is "stretching the limits" of that power in ways which disregard the importance of a "protective process" to ensure the reliability and accuracy of the outcome. Roth told me:

So far, the only "process" that the Obama Administration allows before launching a drone attack, under either a war or policing theory, is a unilateral one within the executive branch. The U.S. government isn't allowed even to seek a wiretap without justifying it to an independent court, yet here it is taking lives with no court involvement at all, even though there seems to be time for such review, and the elastic use of war and policing doctrine would suggest the importance of bending over backwards to avoid erroneous or unnecessary killing. Yet this serious procedural shortcoming in no sense justifies the death penalty, even given the panoply of procedural protections allowed in US capital cases. Once a suspect is in custody, he is no longer a combatant, and his death is not necessary to save the life of others. The arguments for the death penalty thus come down to the traditional ones of deterrence, incapacitation, and punishment, all of which can be served by a prison sentence, and none of which justify the inherent cruelty and inevitable arbitrariness of an execution.

I asked the same question of Richard Dieter, head of the Death Penalty Information Center, the nation's leading repository of information about capital punishment. He clearly doesn't buy my theory or agree with LeBoeuf. Dieter's response suggests that he believes instead that there is a vast gulf between traditional capital cases and drone strikes. Here's what he wrote me on Friday morning: 

The Death Penalty Information Center does not take a moral stand on issues, including the death penalty. It seems to me that drone strikes are in a completely different area of the law than the death penalty. Killing in a drone strike is not a punishment for crime like the death penalty. Drone strikes would probably be considered, rightly or wrongly, in the area of self-defense. In any case, they come closer to the law of war than to criminal law. 

I doubt that the American public sees drone strikes as comparable to capital punishment. Fighting terrorism has to do with national security and is distant from fighting crime. I think that for most people criminal law involves a broad spectrum of offenses, all the way from traffic tickets to murder. People can see themselves being involved in minor offenses and want to ensure that defendants have due process and protection from overreach by the government. Threats to national security are a quantum leap away from most people's common experience and are disconnected from the area in which the death penalty lies.

PRO-DEATH PENALTY:

Here are some Pro-Death Penalty Quotes that justify capital punishment with the armed forces:

"For the executioner only holds himself in readiness to kill those who have been adjudged to be harmful and criminal, while a soldier promises to kill all who he is told to kill, even though they may be the dearest to him or the best of men." [War and Peace 1869] – Leo Tolstoy, Russian writer. 

Click here to see the quote from Sir James Fitzjames Stephen.

Click here to see this article from Leo McKinstry.

Here are some quotes by Christian Conservative Journalist, Peter Hitchens:

Peter Hitchens

I accept that an absolute pacifist can consistently oppose the death penalty. If you really believe that there are no circumstances in which killing is justified, then you can honestly say that you are against execution on principle. But be careful here. If you believe this, then you presumably believe that resistance, even against the most evil powers on earth, must be non-violent. You would have to say that the RAF Battle of Britain pilots of the late summer of 1940 were wrong to shoot down their Luftwaffe opponents. (Some responses to correspondents 09 January 2007 4:03 PM)

It is not killing we are trying to express loathing for.  It is murder. All of us, except absolute pacifists, accept that killing is sometimes justified. In simple self-defence, the case is easy. In defensive war, in which aggressive actions are permitted, less straightforward but still acceptable to most of us. And I think quite a few of us would be ready to forgive and condone in advance an assassination of an aggressive tyrant before he could embark on war. So we license armed forces to shoot back at our attackers, or to attack our attackers in retaliation or deterrence.

Of course there are practical differences between armies killing enemies and executioners killing condemned men. But they are practical, not moral. For moral purposes, this is a distinction without a difference. All but pacifists accept that the state has the lawful right to kill. (Bicycles, class, sarcasm, massacres, schools and the gallows. Just another week in the blogosphere 11 March 2008 4:28 PM)

The only argument that remains is the precise circumstance. And if one had to argue between the two, the execution of a murderer convicted after due process would surely be morally preferable to the killing, without any due process, of a kindly family man conscripted into a foreign army or air force against his will. (Bicycles, class, sarcasm, massacres, schools and the gallows. Just another week in the blogosphere 11 March 2008 4:28 PM)

Even those of them who pretend to believe in the death penalty will say: ‘But what if an innocent person got killed by mistake?’

Yet when it comes to Libya the same people suddenly lose all their doubts.

They’ll protect Libyan civilians by dropping tons of high explosive on anyone who attacks them. If innocent people are killed by mistake, and they have been and will be, that is ‘collateral damage’, sad but acceptable. (We can protect a mob in Benghazi, so why not a little girl in Stockwell? 02 April 2011 11:55 PM)

That so many who are squeamish about the swift and humane execution of justly convicted killers are so relaxed about the mass murder, often by tearing them to pieces with metal instruments, of unborn babies, the bombing of Belgrade, Baghdad and Afghanistan (and now of Libya). (The Civil Sword 14 April 2011 2:58 PM)

Here is an article written by American Lawyer, Bruce Fein on Sunday 1 July 2001, The Death Penalty, but Sparingly 

Bruce Fein

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.

This is an article from Daniel Troy: 

Daniel Troy

Our Innate Morality Demands Execution

Commentary

May 07, 2001|DANIEL E. TROY | Daniel E. Troy is a lawyer in Washington and an associate scholar at the American Enterprise Institute

Think of your child or grandchild or friend's child. Next imagine that child with his or her skin flayed, flesh burned and limbs torn apart in a blinding flash. Consider the devastation such a death would wreak on the child's loved ones, siblings and community.

Now think about the person who intentionally murdered that boy or girl. If you are not so angry that you want to kill that murderer, you are not being honest with yourself.

Yet it has become fashionable among people holding post-graduate degrees or those in the entertainment industry to oppose the death penalty. Some of this opposition is understandable. We have heard of innocent people sentenced to death, perhaps saved by DNA evidence, sometimes years later. But some commentators have extended this valid concern to the planned execution of Timothy McVeigh, the Oklahoma City bomber who murdered 168 people, 19 of them children.

These death penalty opponents will say that our legal system should channel emotional desires for justice--vengeance--to a more "civilized" response, such as that of more "advanced" societies like Canada and Britain, which have renounced the death penalty.

But people will lose respect for the law if it drifts too far from their innate moral sense. According to recent Pew and Gallup polls, 75% of Americans believe McVeigh deserves the death penalty and two-thirds support the death penalty generally. The Constitution contemplates it, and the Bible, which continues to influence our morality, prescribes it. And while the law need not reflect Americans' innate moral sense in all cases, there should be a compelling reason for dramatic divergences.

No such reason exists with respect to McVeigh.

Perhaps the death penalty should only be imposed where there is no doubt (as opposed to no reasonable doubt). It could also be further restricted to cases of multiple or mass murders planned in advance, where there has been effective assistance of competent counsel and there is no risk of racial bias. McVeigh's case meets all of these criteria.

This leaves as the primary objection that the state should never kill, an untenable position. States kill in just wars and authorize police officers to fire in self-defense. The state also, inevitably, makes choices that result in death, such as the decision to raise the speed limit to 65 mph or build a dam.

It is true that the death penalty is administered not in the heat of war or a gun battle but after the opportunity for deliberation. But the procedural safeguards and opportunities for multiple judicial appeals may strengthen the case for the death penalty.

Other opponents contend that the death penalty does not deter crime; that is, it might not prevent future McVeighs. This is hard to prove either way, especially because the death penalty has not been imposed widely, swiftly and with certainty. But executing McVeigh need not make sense on a deterrence rationale to be right.

People make all sorts of choices that shorten their lives. The state has put people on notice that committing murder can lead to the death penalty. McVeigh has made his choice and should have to live and die with the consequences.

Much of the disquiet of elite opinion with the death penalty seems to stem from a reluctance to differentiate between right and wrong. A just society, however, must protect its citizens and vindicate their sense of justice. Perhaps paradoxically, executing McVeigh is the best way to affirm Americans' deeply held belief that life is a gift from God and that those who coldbloodedly snuff it out should not continue to enjoy that gift.

http://articles.latimes.com/2001/may/07/local/me-60502