What’s fair in death -- and in death taxes? (Hint: check with Governor Schweitzer and Senator Tester)

We all know that the only sure things in life are death and taxes, but that doesn’t mean that anyone stops trying to find loopholes to avoid both.

In an interesting op-ed in the Kalispell Daily Interlake, the editors take a cane to Montana Governor Brian Schweitzer for his expressing sympathy for the fate of Ron Smith, on death row for the murder of two young Native American men in 1982. According to the editorial, the governor may use his power as governor in these waning months of his administration to reduce Smith’s penalty to life in prison (Smith originally sought the death penalty for himself but has subsequently had second thoughts.)

The editors conclude:

The governor was quoted as saying in the Associated Press story last week that he keeps “coming back to this question of what is fair” and said “I don’t know what is fair.”

If that is really true, then the governor isn’t in any position to make a judgment of this importance. And if he finally does come to realize what is fair, then Ron Smith will have to accept his fate at the executioner’s hand just the way he forced Thomas Running Rabbit Jr. and Harvey Mad Man Jr. to accept theirs.

They have a compelling point -- by any reasonable standard, someone who willfully deprives another of his life has forfeited any right to his own. The state may choose not to deprive him of it, but he can’t claim to have a “right” to live. Pretty much the entirety of the human experience would seem to agree with this viewpoint. The Christian tradition in the West introduced concepts of mercy and forgiveness to what had been a much harsher punitive landscape, but it has always acknowledged the right of civil authority to use the death penalty, even while it has urged restraint in its use.

As I wrote some years ago, I personally oppose the death penalty for a number of reasons, but in keeping with that Christian tradition, I also believe strongly that the civil authority is not acting immorally when it decides that it is necessary. Most importantly, the power of pardon should not be used to keep the death penalty from being implemented -- if you want to remove the death penalty from the list of punishments available to Montana’s juries and judges, use the legislative process, not a stroke of a governor's pen.

The right of kings to grant pardons and to commute sentences is as old as civil society. It is a part of that set of Burkean “prescriptions and prejudices” -- i.e. traditions that have developed over centuries to meet a society’s needs. That royal privilege of granting pardons has carried through into Anglo-American traditions of common law and constitutional law, and is exercised by our heads of state -- the President and the 50 state governors.

While we might disagree with particular pardons by presidents and governors, it is an important safety valve for any humane society to have one man (I use the word in its inclusive sense) holding the power to correct miscarriages of justice that slip through our system of laws and courts -- a system that is the best the world has seen and yet is imperfect because we humans are imperfect.

Was there a miscarriage of justice in this particular case? That is the question the governor must ask himself after examining all of the evidence. How Governor Schweitzer exercises the royal privilege he holds lies on his conscience, and his alone.

* * * * *

And now for taxes -- specifically death taxes. We read that Senator Jon Tester has belatedly co-sponsored a stand-alone bill to exempt farmers and ranchers from the massive increase in estate taxes that will kick in once he and Senator Baucus and the rest of the Democrats in the U.S. Senate allow the Bush tax cuts to expire.

We will leave aside discussion of an obvious question: why should a family farm or ranch be protected from having the state confiscate its assets upon the owner’s death, while other kinds of family businesses are beneath Sen. Tester’s notice?

Moving on, though, this is of course a naked act of self-preservation by Sen. Tester in a rural state like Montana. It might even seem laudable, but really, it doesn’t reflect well on Tester at all.

Montana Farm Bureau Federation President Bob Hanson nailed the issue on the head when he said the following:

"I hope it passes because it’s what needs to be done,” Hanson said. “But if it needs to be done, why wasn’t it in the first bill?"

Indeed. It isn’t like it was some state secret that President Obama intended to let the Bush tax cuts expire, and that Montana farmers and ranchers would find their land in jeopardy as a result. As a U.S. Senator from a rural state (and one who trumpets his farming credentials far and wide, no less), Tester should have been all over this from the start -- which was four years ago, when Obama was elected President. We’re only hearing about this now?

By all rights, as a self-proclaimed advocate for agriculture and “the only farmer in the U.S. Senate," Tester should have been providing leadership, both working behind the scenes and publicly using his bully pulpit, to make sure it would never come to this point -- where at the 11th hour, a quick-fix stand-alone bill has to be rushed into consideration to keep farmers and ranchers from having their family land devastated by confiscatory estate taxes.

It’s only been 6 years, but it seems that Sen. Tester has already been in Washington too long.