Friday, March 28, 2008

Why I Support Capital Punishment, Part 6

Published 03.28.08 at Townhall.com

Previously, we learned that the distinction between innocence and guilt solves three of the common conceptual arguments against capital punishment. Let’s continue with the remainder of these arguments.

Conceptual Objection 4: Execution violates the Eighth Amendment by being cruel and unusual.

The wording of the Eighth Amendment is abundantly clear: only punishments which are both cruel and unusual violate it. Thus, no matter how cruel a punishment is, if it is administered with regularity, it cannot be unconstitutional. Likewise, no matter how unusual a punishment is, if it is administered humanely it is constitutional. Since the standards for execution are uniform (at least within a particular state) and the procedure used (lethal injection, most often) is humane (especially when compared to both past forms of execution and the ways murder victims suffer), this objection is a non-starter.

The most serious arguments seem to derive from (1) the method not being completely painless; or (2) similar cases do not always receive the same penalty. Ironically, the primary reason that cases are not resolved identically is because we try so hard to confirm guilt. The conviction and appeals process produces varying results. Thus the simplest way to create more uniformity would be to execute the guilty immediately after every conviction. Obviously, this would not improve our system, although it might please certain bloodthirsty advocates of execution who are convinced that such a system would do a better job of deterring murder. Doubtless it would, but not at an acceptable price.

Finally, whatever claims might be made about the 8th Amendment, the 5th Amendment specifically endorses the taking of it under the right circumstances. When it says that no person may be “deprived of life, liberty, or property without due process of law,” the 5th Amendment is obviously granting permission to deprive people of any of these if due process is satisfied. Any interpretation of the 8th Amendment that is used to oppose capital punishment must fail in light of what the 5th Amendment so clearly authorizes. And we know that the ratifiers were not conflicted on this point since all thirteen colonies maintained capital crime statutes. I know that some issues of Constitutional interpretation are complex, but this is not one of them.

Conceptual Objection 5: Capital punishment is barbaric and hateful.

According to opponents, there is a vast burgeoning awareness that capital punishment is wrong because it represents the most vicious and malicious elements of a human past we are evolving beyond. Enhancing their point is our current war against a political vision that thinks it appropriate to punish almost any crime with public beheading. Furthermore, the angriest, meanest, most unloving people are rarely the ones who oppose capital punishment. Which kind of people do we want to be?

Frankly, the way many people talk about executing murderers demonstrates such fury and lack of love that I cringe to find myself on their side. During my years in talk radio, I’ve often heard sentiments such as, “Those vermin deserve to suffer”; “Hangin’ would be too good for them”; “Lethal injection’s for sissies”; “Bullets cost money, but at least you can reuse a rope.” Such rage is powerful … and frightening.

Nevertheless, the fact that many of the wrong people support the right thing for the wrong reason does not require me to abandon supporting it for the right reasons. I’d like to talk such people out of their anger, but I’d also like to keep them supporting capital punishment for murderers in the process.

As for being barbaric, well, to me the barbarism is not in taking a murderer’s life, but in refusing to do so. As for the method, I’m indifferent. My sense of retribution doesn’t require suffering, and I’m unclear how gratuitous torture does a civil society much good. So, I’m basically satisfied with anything that turns a convicted murderer into a dead murderer.

Conceptual Objection 6: Execution is degrading to the executioner.

Even if capital punishment does no damage to the sanctity of life and no indignity to the murderer being killed, nonetheless, asking an otherwise decent human being to so ruthlessly take the life of another person in this way damages the soul of the executioner. Although I understand this concern and accept that many real executioners may feel this way, I think there is a basic misunderstanding here. If execution is honoring of life and justice, then it cannot be the case that doing it would be harmful to the executioner. A just action cannot pollute the soul of the doer. Only unjust acts can do this. So, once the propriety of capital punishment is established, the issue of its impact on the executioner should be settled. An execution is properly understood as the only way to honor the capacity of the murderer to pay for what he has done. Likewise, allowing another human being to make this honoring possible is itself an honor, not a pollutant.

Conceptual Objection 7: The victim’s family often doesn’t want execution.

I’ve often seen interviews with family members of the victim who encourage leniency in sentencing the murderer. On the other hand, I’ve also seen interviews where the family wants something atrocious done to the defendant verging on torture. In both cases my response is the same. We neither execute people in order to satisfy the wrath of the victim’s family, nor do we refrain from doing so if such wrath is not present. Our justice system is not based on the idea that we do whatever the particular victim or his family wants done, but on the idea that we do what is decided upon as right by the calm, rational deliberations of the entire society. We seek justice, not the satisfying of particular, emotionally-connected impulses. Thus, individuals do not get to decide the punishment. In fact, ignoring what such people want is an important element of keeping this practice from being the unpredictable barbarity it might otherwise be.

In the next column, we will begin looking at the final kind of objections made against capital punishment: religious ones.

Thursday, March 20, 2008

Why I Support Capital Punishment, Part 5

Published 03.20.08 at Townhall.com

In the previous column, we saw that the practical objection about executing innocent convicts can be solved by heightening the capital standard to guilt beyond any doubt. Now, let’s look at some of the conceptual objections.

Conceptual Objection 1: You cannot teach people that killing is wrong by killing.

What punishment could we assess against criminals that wouldn’t be wrong when done to innocent people?

Is it inconsistent to punish embezzlers with fines? Is it inconsistent to put kidnappers in the liberty-deprived condition of prison? Would we be inconsistent, or merely brutal, to adopt a more Indonesian response to assault by publicly flagellating offenders?

Precisely because every form of punishment is a form of harm to the convicted, the problem with this objection is that it proves too much, indicting all expressions of any justice system. That’s why the proper response to it is to ask why the person advocates anarchism, since only the anarchist view (that all outside impositions upon a person are wrong) is consistent with the principle of this argument.

But that’s probably a bit much for your na├»ve friend in a casual discussion. Instead, ask him if he also opposes execution because of the risk that the convict is innocent. If so, then he is simultaneously arguing that all killing is wrong and that the killing of innocents is uniquely wrong. Every person who opposes CP because of the risk to innocents affirms, in making that argument, that there is something vastly different between killing those who have done nothing to deserve it and killing those who have. And clearly, this is the distinction that solves this objection.

Simply put, to allege that killing murderers and killing innocent citizens are the same is to deny the distinction between guilt and innocence which is the presuppositional foundation of all law in the first place. If we cannot distinguish between how we should treat lawbreakers and non-lawbreakers, we have much more elementary problems than rationally discussing the validity of capital punishment.

Conceptual Objection 2: It erodes the sanctity of human life.

There are two ways for our justice system to show that something is sacred: by protecting it from violation and by punishing those who violate of it. Clearly, in this case, the two are interconnected. Life is uniquely precious, which is exactly why taking the life of one who deliberately takes innocent life is the only way to affirm life’s sacredness. Rather than proclaiming the preciousness of life, allowing a known murderer to live is a declaration that life is not precious enough to justify the forfeit of another life as punishment.

When something is sacred, that does not mean that it cannot be violated. Rather, it means that it must be violated only in the rarest of cases and only in the most deliberate of ways. The almost absurd solemnity with which we execute people in this country is not a defect of our system, but a testament to the importance we attach to human life. Instead of eroding the sanctity of life, execution practiced with such regard actually affirms it.

Conceptual Objection 3: You can’t be pro-life and pro-capital punishment.

First, it’s a mistake to assume that all pro-lifers base their view on the idea that abortion is homicide. While this is common, there are, in fact, other grounds for opposing abortion. Nonetheless, I’ll grant most pro-lifers do oppose abortion for this reason.

According to this objection, it is inconsistent to oppose the killing of a human fetus while favoring the killing of a human murderer because one must treat all killings the same way.

What so offends us about abortion is the taking of an innocent life, the destruction of someone so vulnerable and guilty of no wrong. Executing a murderer doesn’t elicit the same response because we are, again, making the simple distinction between the innocent victim of a crime and the guilty perpetrator of that crime. Since this distinction is at the heart of our justice system, the person who can’t make it is back to equating being stolen from with being fined, and being kidnapped with being incarcerated, equivocations that make a life sentence in prison every bit as problematic as execution.

I am convinced that even those who grieve the death row convict do not view his death as a tragedy equal to that of his victim. In fact, I’d have trouble taking someone seriously who told me that his horror at an executed murderer was equal to his horror at the original murder itself. This difference of reaction acknowledges a distinction even at an emotional level between the two. It may not seem big enough to justify execution, but just getting opponents to admit the difference might start to erode their notion that the two are morally indistinguishable.

Furthermore, if the idea is that we must oppose all homicides if we oppose any, then we might reasonably demand that such opponents also protest every form of warfare or self-defense. Obviously, most death penalty opponents are not pure pacifists, which makes them no less inconsistent on this issue than they allege pro-lifers to be. I only point this out to show that many CP opponents are skewered by their own willingness to distinguish wartime and self-defense homicides from others.

I am willing to concede that it would be more philosophically rigorous and less confusing to use the more cumbersome label “pro-innnocent-life.” But we all know that rigor often yields to pith in modern discourse. Nevertheless, there are clear lines distinguishing abortion from capital punishment which this objection colors quite sloppily across.

However, as a point of practical concern, ending abortion is far more important to me than continuing to execute. I’d certainly rather save a few million innocent than kill a few hundred guilty. So, if I thought that opposing capital punishment would make me look more consistent to those who can’t make such distinctions and thus gain their support for ending abortion, I might well consider it. But I’d like to hope, perhaps naively, that we can get both issues right without pandering to such superficial thinking.

In the next column, we’ll look at the concerns that execution is unconstitutional, barbaric, motivated by hate, and degrading to the executioner.

Wednesday, March 12, 2008

Why I Support Capital Punishment, Part 4

Published 03.12.08 at Townhall.com

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.

I agree.

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 LIPWIPP, 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 though 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.”

Friday, March 7, 2008

Should John McCain Start Being A Coward Now?

Published 03.04.08 at Townhall.com

Given that the most well-known fact about Senator John McCain is his war record of courageous endurance in a prisoner camp, why do some commentators suddenly seem to want the Arizona Senator to start being a coward now? I only ask because people are saying that McCain could have just kept his mouth shut instead of challenging the not-so-subtle name-smearing of Senator Obama by Bill Cunningham. They think this would have been easy to do since McCain had the convenient cover of not actually hearing the comments himself. This would make it easier for conservative talk radio hosts to continue to persuade their frustrated “red-meat” listeners to swallow the less bitter pill of the McCain Presidency. But that explanation sounds a lot like cowardice to me.

Instead of being ashamed of a man who has, for whatever other faults of his we might agree about, led the way on honorable campaigning, this should be one of the great rallying points for moral conservatives. Cunningham played the fool, and McCain rightly and properly rebuked him for it. I hope I’m wrong, but it seems like talk radio wing of the Republican Party has suddenly decided that a key platform point for conservatives is the right to imply slander through the highly witty second grade tactic of name abuse.

“It’s his name. His mamma gave it to him. I’m just honoring him the same way we would honor John Fitzgerald Kennedy or Franklin Delano Roosevelt or William Jefferson Clinton.” Oh, yes, Mr. Cunningham, I’m quite sure that, in a speech which also referred to, “CBS, the Clinton Broadcasting System, NBC, the Nobody But Clinton network, [and] the All Bill Clinton channel ABC,” your references to Barack Hussein Obama were meant as a display of profound and sincere respect. Of course, I suppose it’s possible that some people believe you, but I’m hard pressed to believe that you’re stupid enough to believe your own explanations on this one.

Let’s be clear and say out loud what everyone knows about this particular middle name. The only reason to use it in referring to Senator Obama is because doing so panders to a noxious combination of anti-Arab/anti-Muslim sentiment and gives life to the ongoing slew of false allegations concerning Obama’s upbringing or secret religious affiliations. “See, he’s really just one of them…just look at his name.” I wonder if you would be so bold if the name happened to be Adolf or Aidid, although given your willingness to lie to America’s face about your motives, I have to figure you’d find that equally entertaining.

Just for a moment, consider this episode as a case study on the virtue of courage. On the one hand, Bill Cunningham engages in a cowardly ad hominem slur against a man based on the unfortunate historical timing of his middle name. When he is called on it publicly, he acts as if he is didn’t do anything wrong, nobody saw him, and you can’t prove anything. Bart Simpson would be proud. Not to put too fine a point on it, this is conduct unbecoming a public figure.

On the other hand, Senator John McCain immediately repudiates such behavior when he becomes aware of it. He does so while certainly knowing that this might alienate legions of angry conservatives who love to imitate Cunningham’s vitriol, but he seems to care not a whit about such foolishness. As people are pointing out, he surely had other options, most of them more politick. But what does courage do? It does the right thing, regardless.

So why are others so upset with McCain’s courage? Well, I have a simple theory. When you scold one shoplifter, all shoplifters become outraged. When you criticize speeding, all speeders get defensive. And when you publicly rebuke one of the cherished but immoral tactics of conservative talk radio, well, who gets upset?

We ask moderate Muslims to repudiate the Islamo-fascists. We demand that Christians condemn those who bomb abortion clinics or kill gays. We asked Mitt Romney to repudiate the ugly past of his own religion. We even ask Barack Obama to distance himself from Louis Farrakhan. All rightly so. Why do we suddenly think that John McCain should keep quiet about the sleaziest race-baiting behavior of some members of his party? Is such behavior an important element of modern conservatism? No. And saying so the sort of response that we should celebrate rather than apologize for.

I have never been a McCain supporter, but it would seem to me that courage is one of the defining elements of his life. Thus I am absolutely baffled why anyone would suddenly prefer him to pander like a coward to the worst elements of our right wing. Millions of Americans believe that conservative talk radio is nothing more than hate-filled bigotry. As a member of the profession, I have a hard time imagining how slandering the nation’s first serious black candidate for President through the abuse of his given name is the best strategy for proving them wrong.

To me, this past week has offered a stark contrast in political tone alternatives. On the one hand, we have the ridiculously inflammatory and deceptive excesses of one sort of political commentary embodied in Bill Cunningham’s I-can-throw-a-bigger-narcissistic-fit-than-Paris-Hilton express. On the other hand, we have the passing of William F. Buckley, Jr., whose loss has been noted and lamented by people across the political spectrum. What’s the difference between them? As even the New York Times noted, Buckley was special because, “Yale’s angry young man turned out to be not so angry after all. He hated most of what the liberals stood for. He didn’t hate them.” To Christianize this phrasing, Bill Buckley hated the sin but loved the sinner.

Talk radio and political discourse in general have two icons we can honor with our emulation: William F. Buckley, Jr. and Bill Cunningham. To embrace the one is to reject the other, regardless of the political views we are advocating. The fork in this road requires a choice, and I not only admire John McCain for forcing us to realize this, but I for one think that the best way to honor the passing of the father of modern conservatism would be to follow down the path where his example led.