While I’m on the Topic

The last post eventually segued into a short discussion of a Texas judge named Sharon Keller. I strongly recommend anyone reading this go over to SharonKiller.com and sign up for the judicial complaint against her. I don’t believe that you need to be a Texas resident to sign it. This woman is a serious disgrace to the nation and should be driven from office.

New Jersey Bans Execution

Two days ago, on Dec. 17, New Jersey outlawed the death penalty. The state has not actually performed an execution since 1963. Governor Corzine also commuted the sentences of the eight men on Jersey’s death row.

This is a small but significant step towards eliminating a punishment that, regardless of its merits or flaws in the abstract, has a long history of unjust selective enforcement based on class and race. Combined with the Supreme Court’s surprise decision to review the constitutionality of lethal injection (an decision that has led to a de facto national moratorium until the court rules, except in the case of Michael Richard in Texas) and with several states now debating bans, I hope that we are seeing the beginning of a shift on this issue.

Fundamentally I oppose the death penalty on moral grounds. I do not believe that the state ought to have the power to take citizen’s live as retribution. Furthermore I hold that the possibility of executing even a tiny number of innocents represents a far greater moral error than the possibility of not sufficiently punishing killers. As teacher of mine once said, it is better for a hundred killers to live than for one innocent to be murdered by the state. That’s perhaps too simple a way of putting it to be a full argument against execution (a strictly utilitarian ethics might well argue that the moral calculus above grossly overvalues individual innocence at the cost of protection for the greater number of citizens while theories of punishment as retribution would argue that the possibility of innocent deaths is a unfortunate but unavoidable consequence of carrying out justice) but it captures the essence of my position. The state ought to hold itself to a higher moral standard that that to which murderers hold themselves. Furthermore, to the extent that the state applies a punishment inconsistently, say by punishing members of a specific social or economic group more harshly for the same crime than it does members of other groups, the punishment cannot prove just in its application, whether or not the moral calculus underlying the idea of the punishment is just.

There are also a long list of pragmatic reasons for opposition to the death penalty, not least of which is the dearth of statistical evidence suggesting that it acts as a deterrent to crime. As with all the pragmatic arguments, this one makes me more than a little bit uncomfortable since it cedes the premise of the basic morality or lack thereof of execution to the pro-death penalty side immediately. The value of the pragmatic arguments comes from their effectiveness in actually stopping executions from happening. For example, the case now before the Supreme Court hinges on whether or not lethal injection should be considered an unconstitutional form of cruel and unusual punishment. I personally think the cruelty of a given method of execution is largely irrelevant - I would oppose even the kindest and gentlest form of state-sanctioned murder - but the question of cruelty will decide the fate of every person on death row in the U.S. today*.

I suppose that what I am describing here is a strategic vs. tactical view of opposition to the death penalty. At the strategic level, where the goal is ending it altogether and changing the discourse surrounding the issue, moral arguments operate to re-frame the debate. At the tactical level of actual legal and political engagement, measurable victories (meaning lives saved, sentences commuted, innocents freed by DNA evidence, etc…) are generally won by those utilizing the pragmatic arguments.

*Except, tragically, for Michael Richard. He was executed on the very afternoon of the Supreme Court’s decision to review lethal injection as a result one of the more grotesque examples of Texas judge’s thirst for blood.