Tuesday, February 6, 2007

Death penalty

Spoiler alert: don't finish reading this sentence if you want to wait in suspense to see what side Montana Headlines is going to come down on, namely that we support removing the death penalty from the list of criminal punishments in Montana.

Getting the obvious over with, the death penalty is Constitutional. Only a formal amendment to the Constitution banning it could make it not so, and one doesn't have to clerk for Justice Scalia to figure that out.

Congress was specifically allowed to decide the punishment for treason in Article III, section 3. The fact that Congress was only restricted from "working forfeiture or corruption of blood" in that section makes it clear that the Founders specifically thought about the restrictions on Congress that they felt were appropriate.

In fact, since the normal effect of "corruption of blood" was that the family of an executed traitor didn't inherit his property, it can be fairly argued that the text implies that execution was the expected punishment for treason, but just leave the traitor's family out of the punishment, thank you very much.

The 5th Amendment takes for granted that there are such things as "capital crimes," which by definition are punishable by death.

Finally, all states ratifying both the Constitution and the subsequent amendments known as the Bill of Rights allowed and used the death penalty. End of discussion.

If someone is genuinely confused about what kind of "cruel and unusual punishments" the early Americans who wrote and ratified the 8th Amendment were talking about, Montana Headlines can refer that confused person to an essay written by high-school students for a description.

All that said, it is equally clear that the Constitution does not require that states use the death penalty, and that every state is free to choose its own path in this regard.

A large part of what turns conservatives off from liberal arguments about the death penalty is their staggering levels of misplaced sanctimony and hypocrisy.

Liberals weep and wail and hold candle-light vigils about the immorality of executing a cold-blooded murder-rapist who had the choice not to commit the crime and who had ample opportunity to defend himself in a strictly regulated court of law.

Yet they angrily defend the right of a woman to terminate the life of the child in her womb, right up to the moment birth contractions start -- a child who has done nothing wrong, who has no choice in the matter, and who is not afforded due process of any kind, let alone a team of taxpayer-funded public defendants.

As the old saying goes, "if I have to explain it to you..."

The liberal response is that conservatives who oppose abortion but support the death penalty are being just as hypocritical as they are. Such an argument seems, to me, to blunt liberal claims to the high ground, especially when one compares whom each side is defending, and what they are defending.

But the death penalty should be done away with in Montana (we should mind our own business regarding what is done in other states) and replaced by prison without any possibility of parole, and conservatives should be just as much in favor of this as liberals. Here's why:

1. The death penalty is far more expensive to society than is life imprisonment. Yes, it is the fault of bleeding heart liberals that the interminable appeals make this the case, but their hearts aren't going to stop bleeding. Conservatives look at life as it is, not as it should be, and liberals who are willing to cross sea and land to stop a single execution are facts of life.

2. The death penalty probably doesn't deter crime. If a murder-rapist were given a one day trial in the town square on the day the 10 corpses were found in his basement, or the day after 10 witnesses saw him stab someone in cold blood -- and if this were followed by a hanging that evening -- then it might, but not when the execution happens years after the crime, if at all.

3. Those conservatives who are Christians might want to think about the fact that execution ends all possibility of future personal repentance. It's not a political, practical, or legal argument, but it's one that Christians need to think about. Yes, the dreadful walk to the gallows may have spurred a lot of repentant prayers, but one can't count on that being the effect.

4. Even though it means letting a weak argument trump a strong argument, conservatives should remove the "but you support capital punishment" from the pro-abortion arsenal.

5. Capital punishment is a way for Democrat politicians to be conservative "on the cheap." Knowing that they will hardly ever have to take responsibility for an execution on their watch, they can grandstand their "law and order" credentials by supporting a penalty that is rarely imposed.

6. Capital punishment is a government program.

It is with the latter that perhaps, as Thomas Oliphant (with whom Montana Headlines rarely agrees) once wrote, some common ground might be found:

What's still lost in all this is a position I've long believed can unite left and right - that the death penalty is a government program and as such is by definition arbitrary, capricious, and illogical in its application.

Such an approach by death-penalty opponents will cost them their sanctimonious warm-fuzzies, but is it too small a price to pay for laying this thing to rest?


Yosemite1967 said...

1. If endless appeals are a problem, legislate them away.

2. If speedy trials are not happening like they used to, legislate them back.

3. One who takes the Bible literally can't believe that murder is a forgivable offense, or God wouldn't have left orders that all murderers be speedily executed.

4. Unborn babies aren't a threat to the wellbeing of the rest of us--those guilty of murder are. Also, unborn babies don't cost $100,000 a year to maintain.

5-6. These two arguments are so obviously weak, I can't believe you're even listing them as support for your idea.

In summary, let's fix what's broken in the system, rather than break it more.

Montana Headlines said...

Most of what you say are good traditional arguments for making the death penalty work as a part of the criminal justice system. Strength of argument is always in the eye of the beholder.

Is it possible for it to work today? Maybe, and if anyone wants to try to make it so, they can knock themselves out, but it is a waste of political capital.

The Scriptures are taken pretty literally around here. If the reference to giving criminals time and opportunity to get ready to meet their Maker doesn't fit your Christian shoe, then don't wear it.

Murder is certainly a forgivable sin -- at least anyone who has read the words of Christ should hope so -- and that's all that was being referred to. That doesn't at all mean it is an offense that should go unpunished by the state. No one was suggesting that it should.

Regarding point 4, you are absolutely right -- that's what was meant by "letting a weak argument trump a strong argument."

Yosemite1967 said...

"it is a waste of political capital" The worst waste of political capital is continuing to water down and corrupt the system in order to work around previous corruptions. In the short run, you gain hardly anything, and in the long run, you lose EVERYthing. Talk about a waste! There are endless sayings which can be employed to this effect, like: If all of the energy spent treating the symptoms were spent curing the disease, there would be no disease and, therefore, no symptoms!

I knew that you weren't suggesting that murder go unpunished by the state, but you WERE suggesting a change in the punishment for murder. As far as I know, there is only one civil punishment for murder recorded in scripture--death. Also, Romans 1:9 suggests that there are crimes which make a person "worthy of death". If murder is not one of them, then what is? This was taught by Jesus' apostles AFTER Jesus came, not before.

P.S. FYI: I agree with almost anything else that I've ever seen on your blogs. I just don't understand what looks like you parting with principle on this one.

Montana Headlines said...

Your points are good ones. For the record, if Montana Headlines ran the Supreme Court, the constitutionality of the death penalty would be upheld.

If Montana Headlines ran the governor's office, laws authorizing the death penalty wouldn't be vetoed if that was the will of the people expressed through the legislature. And the power of pardon would be used only in the rare circumstance where such a pardon is the only way to achieve justice.

The state has the right -- by our Anglo-American legal tradition and by the Christian tradition -- to execute criminals as it sees necessary to protect the people that it has responsibility for.

It has, in fact, the right to use a broad range of punishments. My personal favorite for serious crimes, with a venerable history in the Christian civilized world, is banishment.

There are few things that a one-way bus ticket to Mexico (with the warning that crossing back across the border buys the hangman's noose) couldn't cure. There is, after all, a serious trade deficit in criminals between America and our neighbor to the south.

Yosemite1967 said...

Banishment is what I'm also talking about--to the spirit world. (No need for watchin' that border!)

You know, hate to draw a tangent, but all of this banishment talk reminds me of a movie I saw once back in my R-rated-movie-watchin' days. It was called "No Escape". It showed an implementation of the banishment principle that you're talking about. Pretty interesting thing to see.