The U.S. Supreme Court’s recent — and entirely proper — ruling that Kansas has the right to set its own parameters for the implementation of capital punishment still leaves unresolved the issue of just when the death penalty is justifiable.
The law in question — which in baseball terms could be dubbed the "tie goes to the executioner" rule — stipulates that juries should sentence a defendant to death rather than life in prison when the evidence for and against capital punishment is equal.
This certainly doesn’t figure to unleash a rash of executions — Kansas has just a handful of death row inmates and hasn’t executed anyone in four decades.
The high court upheld the law on the basis that — in the majority opinion written by Justice Clarence Thomas — “our precedents establish that a state enjoys a range of discretion in imposing the death penalty.”
Significantly, this doesn’t mean the court endorses or opposes the policy — that doesn’t even matter. The issue is for the people of Kansas and its elected representatives to decide. Thankfully — this time at least — a majority of the justices understood this concept.
As usual, the liberal dissent consisted of ruminations on social philosophy rather than the Constitution.
Turncoat Justice David Souter, a knee-jerk liberal vote after being nominated as an essential ‘conservative’ by the first President Bush, lectured that pressure for prosecutors to win convictions, eyewitness misidentifications, and false confessions have contributed to “hazards of capital prosecution.”
(This point might be well-taken if Justice Souter were Congressman or Senator Souter.)
However, Justice Antonin Scalia pointedly responded that “those ideologically-driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to whereas it is easy as pie to identify plainly guilty murderers who have been set free.”
And, he might have added, have killed again.
Statistics show that many thousands of murders are committed by convicts on probation, parole, or having been released — and a significant number are committed by those with previous homicide convictions.
Herein lies the essence of the issue. Is it right to refrain from making a morally proportionate response to a vicious, violent crime, thereby endangering innocent people who may become victimized when such thugs end up back on the street?
Of course not.
This is the view of the vast majority of capital punishment supporters. They’re not thirsting for blood or vengeance, as many death penalty opponents would have us believe.
Still, it must be acknowledged that Congressman Souter — er, Justice Souter — may have a valid concern.
After all, no decent person wants to see someone wrongly condemned.
So the fundamental question is: How to best protect innocent citizens while minimizing the likelihood that anyone will be wrongfully executed?
First, it must be noted that as long as fallible human systems of justice are utilized — and that’s all we’ve got — the best result attainable is to minimize the chance of a mistake. Anyone demanding a perfect system is simply camouflaging a view that capital punishment is never justified.
There have been some attempts made to address this issue. The most prominent in recent times was the unsuccessful effort of Republican Massachusetts Gov. (and possible presidential contender) Mitt Romney.
A year ago, Romney was advancing a supposedly “foolproof” proposal in Massachusetts that would have limited the death penalty to cases involving terrorism, killing sprees, murders involving torture, or the slaying of law enforcement personnel.
Furthermore, the proposal required scientific evidence, a “no doubt” standard of guilt, a two-jury system for establishing guilt and for sentencing, review by an independent panel and the Massachusetts Supreme Court, and mandatory appointment of defense lawyers qualified for criminal cases (who would undoubtedly come up with further ways to delay the proceedings in the highly unlikely event that all of these criteria were ever met.)
Predictably, though adopting such an ultra-rigorous standard would have in all probability eliminated capital punishment in everything but theory — the major flaw with the proposal — this was still not enough to satisfy opponents.
Among these diehards is Michael Dukakis, himself a former Massachusetts governor and presidential aspirant, who called Romney’s proposal a “diversion” from the “real problems” of the justice system.
Apparently, Mr. Dukakis — whose weekend furloughs and eventual releases of even violent criminals seem to constitute his "expertise" on this matter — doesn’t consider violent crimes committed by those already convicted of similar offenses a “real problem.”
(No wonder he was so soundly rejected for president in 1988.)
Similarly, the Massachusetts Council of Churches’ executive director dismissed any application of capital punishment as “unnecessary, unjust, and intolerable.”
One particularly craven argument along these lines is that capital punishment "doesn’t deter" violent crime. Though that’s hard to tell when it’s exercised as rarely as it is in most states, such a contention ignores the indisputable fact that the recidivism rate for executed criminals is zero — you can look it up.
In addition, a great many death-row inmates do everything imaginable to delay their day of reckoning through a seemingly endless appeals process.
Strange behavior for people who don’t care about dying.
Nonetheless, such unreasoning opposition renders it unsurprising that Romney’s initiative was doomed to failure.
The moral is that there’s no need to further engage such intense opponents of capital punishment — one can only hope that too many of them don’t happen to wear black robes.
However, there does exist a pressing need to convince those still wavering — or those who have defected, such as former Illinois Gov. George Ryan, who underwent a "conversion" after learning that around half of nearly 300 capital cases in his state had been reversed for a new trial or re-sentencing.
Thus converted, then-Gov. Ryan pronounced a moratorium on capital punishment just before leaving office dogged by scandal.
While no well-intentioned person will deny that such issues are serious concerns, neither should the protection of innocent citizens be sacrificed because of them.
What’s needed is a standard that will allow capital punishment to be carried out when appropriate without undue restriction and still guard against wrongful executions.
One approach could be to simply exempt from execution anyone not previously convicted of a violent crime.
This makes sense because if a generally law-abiding person commits a single capital act (such as a crime of passion), they’re much less of a threat to society than a career criminal.
Meanwhile, establishing the principle that conviction for any violent crime makes one susceptible to execution might just give potential perpetrators food for thought.
True, it’s still theoretically plausible that someone previously convicted of a violent crime and later convicted of murder could still be innocent. But repeated accusations of of violent crimes are seldom coincidental, and at this point continued opposition becomes mere obstructionism.
Perhaps the major reticence regarding the death penalty is the conception of a poor, upstanding citizen being framed (such as Dr. Richard Kimble in the movie "The Fugitive"). But one look at the dossiers of most death row inmates undermines the notion that they’re just blameless victims — and if by some quirk of happenstance someone is, the first-time exclusion would protect them.
But only once.
Society must protect the rights of the accused, but not by jeopardizing others who truly are blameless.