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?
