Capital Punishment: the Good, the Bad, and the Ugly

Under what circumstances, if any, should capital punishment be used?

Capital punishment is one of the great moral questions of our time. Some believe it to be an indespensable deterrent, while others counter that it is racially biased in nature, and leads to a two-fold miscarriage of justice if an innocent person is executed.

As usual, extremes are sometimes taken on this issue. Newt Gingrich, for example, has recommended Singapore-style executions for drug offenders. Amnesty International, on the other hand, has objected to capital punishment in all cases, even for convicted terrorists. Some on the far-left dismiss any moral distinction between the actual murder and the execution that follows, arguing that they are equally abominable. Their far-right counterparts have no patience for allowing a convicted death row inmate to live another day.

Others prefer to find a rational middle ground, and believe that the punishment must fit the crime.

There is no doubt that technology has changed the debate. Technology in general, and DNA in particular. Supporters of capital punishment argue that the advancement of DNA ensures a brighter future for the justice system, while opponents have pointed to past cases of wrongful conviction as a result of a DNA finding.

In addition to the technological aspect, the historical and legal aspects must also be acknowledged in order to offer a proper narrative.

From the Colonial period through the early American republic, hanging was the most common method of execution. Burning, crushing, breaking on wheel, and bludgeoning accounted for a small number of executions. The state of Utah even included beheading as a legal method of execution in the late nineteenth century, but it was never used. A black slave accounted for the last person burned at the stake, which took place in South Carolina. Execution by firing squads, the electric chair, and the gas chamber have been, for the most part, put to rest in recent years. Lethal injection is the norm in states that still allow capital punishment.

There may be a bag of riches with regard to capital punishment in cases that did not involve homicide and rape - or anything close.

In 1859, Starling Carlton was executed in South Carolina for aiding a runaway slave. In 1785, Hannah Piggen faced the wrath of Massachusetts for concealing the birth of an infant. In 1852, Theodore Velenquez became the last man executed in California for stealing a horse. In 1785, Joseph Ross faced his execution for an "unspecified" act of sodomy in Pennsylvania.

For as amusing as these examples may be, they also serve to warn us of the potential abuses of power if the law is not confined within reason. In the pursuit of justice, carelessness leads to the creation of a greater monster than the one you seek to destroy, as the abuses of the guillotine during the French Revolution should lead anyone to conclude. If we are to have capital punishment at our disposal, it must be used only to punish the most heinous crimes of aggression.

Opponents of the death penalty often assert that the practice violates the Eighth Amendment, alleging cruel and unusual punishment. This argument is problematic, given that the Founding Generation did not break from common law tradition with regard to capital punishment. In fact, you could be executed for copyright infringement at the time.

The "Eighth Amendment" argument relies on legal positivism, which disregards the original intent of the Constitution in exchange for a "living and breathing" one. In this school of thought, judges make up the rules as they go along, rather than consider the intended meaning behind each clause and amendment. If this is a viable system, then why did the Framers invest so much time bickering over each clause? Why did they have to bother even ratifying the document? Conceivably, they would have saved months of agonizing debate if an ever-changing, self-written constitution, eternally constructed and amended by politically well-connected lawyers accounted for their true vision for the United States.

Perhaps one of the most overlooked legal minds of our time is professor, author, and legal historian Kevin Gutzman. In The Politically Incorrect Guide to the Constitution, Gutzman addresses an overreaching post-New Deal judicial doctrine, known as the "evolving standards of decency."

Probably the most outrageous trend in the capital punishment area was the determination by Justices William Brennan, Thurgood Marshall, and Harry Blackmun in their last decades on the Court that capital punishment always violated the Eighth Amendment ban on cruel and unusual punishments. These three based this determination on the idea of evolving standards of decency - and, predictably, they did not think that Americans at large were nearly so advanced down the evolutionary trail as they were. Critics pointed out that the Fifth and Fourteenth Amendment bans on depriving anyone of "life, liberty, or property without due process of law" clearly contemplated capital punishment with due process of law, but Brennan, in particular, insisted that he saw a better way... For a brief period in the 1970s, Brennan and company succeeded in banning capital punishment altogether.

Both sides of the debate point to the economic factors involved. Law and order conservatives express their contempt for the nature of life in prison, which involves keeping a convicted murderer alive and fed throughout the remainder of his natural life. Liberals, perhaps correctly so, counter with the assertion that it costs more to execute a convict than to keep him alive. Depending on the state and its policies, executions range anywhere from $1 million to as high as $3 million per convict.

While it may not be much of a hot-button issue, the gender disparity is a fascinating phenomenon. As of October 31, 2010, men accounted for 98.3 percent of death row inmates, while women accounted for 1.7 percent. At that point, males were subjected to 99 percent of executions, while women counted for 1 percent. If we should address the racial disparity, why not the gender disparity as well? If these numbers were reversed, I can safely assert that no matter how likely the next murderer is to be a woman, the gender warriors would milk this cash cow for everything it's worth.

If we generously gave left-feminists an indulgent concession with gender warfare, the gender disparity question would inevitibly lead to more men standing in opposition to the death penalty, while raging feminists have every reason to "get even" in the cartoon world - or at least protect themselves from dangerous males who rape and kill in this one. This caricature is two-fold to be sure, but it illustrates how phony the "war on women" appears to be.

I will grant that the racial disparity is a legitimate concern. A notably despicable example was the discovery of a training video in the Philadelphia District Attorney's office that advised prosecutors on how to keep blacks off juries.

This obviously goes hand-in-hand with class disparity as well.

As far as Congressman Ron Paul (R-TX) is concerned, these considerations were significant enough to reconsider his position. From his bestselling manifesto, Liberty Defined: 50 Essential Issues That Affect Our Freedom...

Rich people when guilty are rarely found guilty and sentenced to death. Most people believe O. J. Simpson was guilty of murder but went free. This leads to a situation where innocent people without enough money are more likely to get the death penalty while the guilty rich people with good lawyers get off. For me it’s much easier just to eliminate the ultimate penalty and incarcerate the guilty for life—in case later evidence proves a mistaken conviction. The cost of incarceration is likely less than it is for death penalty appeals drawn out not for years but for decades.

Also from Liberty Defined...

This is one issue in which my views have shifted in recent years, especially since being elected to Congress. There was a time I simply stated that I supported the death penalty. Now my views are not so clearly defined. I do not support the federal death penalty, but constitutionally I cannot, as a federal official, interfere with the individual states that impose it.

After years spent in Washington, I have become more aware than ever of the government’s ineptness and the likelihood of its making mistakes. I no longer trust the U.S. government to invoke and carry out a death sentence under any conditions. Too many convictions, not necessarily federal, have been found to be in error, but only after years of incarcerating innocent people who later were released on DNA evidence.

It is also legitimate to consider that government is not an institution run by angelic beings. Prosecutors use their legal training in order to score a conviction, and specialize, if anything, in the art of persuasion. The defense is limited to what the defendant can provide for. Sometimes, it's a gang of Johnny Cochrans; other times, it's a dunce that graduated at the bottom of the class. Case in point - in the death penalty case of George McFarland in Texas, the defense lawyer was reported to have fallen asleep repeatedly throughout the trial!

Even the most ardent critic of the welfare state should see the injustice in this arrangement. "Your honor," by the way, seems more appropriate as an affectionate phrase between husbands and wives than to a gavel-banging tax eater in a robe.

There is a case for distrust to be made on both sides. Death penalty opponents ask, "How can the state be trusted to convict the right guy?" Supporters ask, "How can this incompetent government of ours prevent these death row inmates from escaping, and killing again?" Both are excellent questions, but they seem mutually exclusive. There is no clear side for those most fed up with an incompetent government.

The law itself is often written and enforced by those who haven't applied their desired social standards to their own behavior. On one hand, we have the "chickenhawks" - the likes of Bill Clinton, George W. Bush, and Dick Cheney - who advocate non-defensive military intervention, but did not serve on the frontlines as young, able-bodied men. On the other, we have what I might dub "rabbitpigs" - such as Timothy Geithner and Kathleen Sebelius - tax-dodging bureaucrats who wish to impose higher taxes and burdening regulations on their subjects. This is the nature of men in power, and I am willing to concede practically any word of caution against them.

At the same time, we are discussing capital punishment in relation to murder and other heinous crimes, an area where the law does serve a proper role in our society. That said, "under any conditions," Congressman Paul?

While Former Governor Jesse Ventura is well-known for sharing the libertarian views of Dr. Paul, he offers a different position in his book, I Ain't Got Time to Bleed.

How come life in prison doesn't mean life? Until it does, we're not ready to do away with the death penalty. Stop thinking in terms of "punishment" for a minute and think in terms of safeguarding innocent people from incorrigible murderers.

Former Vice President Al Gore offered a similar defense of capital punishment during a Presidential Debate of the year 2000.

I support the death penalty. I think that it has to be administered not only fairly, with attention to things like DNA evidence, which I think should be used in all capital cases, but also with very careful attention. If the wrong guy is put to death, then that’s a double tragedy. Not only has an innocent person been executed but the real perpetrator of the crime has not been held accountable for it, and in some cases may be still at large. But I support the death penalty in the most heinous cases.

While I don't agree with Gore on much, I happen to believe this is the most sensible approach for capital punishment. The deterrent is still there, but the demand for proof based on DNA or video surveillance before there is any possibility of an execution goes a long way to protect the wrongfully accused. It is conceivable to believe that some headway in addressing racial disparity will be achieved.

Most economic aspects of this issue seem to favor the opponents of capital punishment, as do questions of false accusations and racial disparity. And in seemingly transformed and repentant human beings, like Karla Faye Tucker, who at least appear worthy of clemency, there is a point to be made for those who desire a rehabilitation-based system. It may seem strange that Mr. Singapore himself, Newt Gingrich, came to her defense! Should supposedly reformed convicts be executed? The Tucker case is probably the most compelling objection. Stanley "Tookie" Williams, former co-founder of the Crips, ended up writing anti-gang books for children. So if the answer is no, then in what criteria can we determine the eligibility for clemency? The recent pardons granted by outgoing Mississippi Governor Haley Barbour - which included several convicted rapists and murderers - appears to be the strongest case for either a strict criteria, or an outright objection to this well-intended proposal.

The questions of Hammurabian values and a desire to maintain a just and fitting punishment for heinous crimes work in favor of those who support the death penalty (as do the legal arguments). Arguments of moral equivalence, equating the execution of a guilty convict with the murder itself, raise curiosity over how the most contemptible violations of rights are to be handled. If a thief breaks into a home and steals a flat -screen TV, is it just as abominable to take the TV back from him? Do families of the victim have an obligation to accept this rationale? Are they vain for wanting a punishment that fits the crime? And why isn't life in prison too harsh of a punishment, since the convict is forced to live in a prison full of psychopaths for the rest of his natural life? And by taking our "evolving standards of decency" into account, at what point in time will that be considered "cruel and unusual?" Should it be made impossible to deny a man of his rights after he has become an aggressor of the worst kind?

While I have many disagreements with Al Gore, I have to credit him with breaking from the fringe and offering a sensible middle ground on this issue. After all, even a broken clock is right twice a day.