Death Penalty: 49-51

Greg Nowell GN842 at CNSVAX.Albany.Edu
Fri Mar 5 14:04:57 PST 1999

To loosely borrow Plato's metaphor, if my mind were a parliament, 49% of the voting representatives be pro-death penalty, 51% would be against. And to borrow from my classics professor, who made the simple but profound point that any public policy issue can be broken down into the "practical aspects" and the "moral aspects" (the preferred position is to hold the practical and moral high ground; if a solution to a problem is neither pracitcal nor moral it has nothing to recommend it, and all the problems center on when the practical argues one course and moral argues another).

Morally, I have no problem with the death penalty, and have written before on this list, that the state seems to have power of life and death over its citizens in a wide variety of arenas. It makes life and death decisions when putting citizens at risk in war, and also sometimes delegates decisions. "The mother's right to choose" is an example of a delegated decision. Automotive safety design is partially delegated (manufacturers can do more than they are required to do) but also partially mandated (safety belts and air bags). The state also exercises life and death decisions over non-citizens, in acts of war, but also, in deciding who does and does not qualify as a "political refugee" (for example). Viewed in this way, citizenship means the state has life and death power over citizens in a wide variety of contexts and makes political decisions as to how to use that power. That's just the way it is.

Now, you can argue A) the state should not have any power over life and death of its citizens in any context; or the state should B) only be empowered to protect the lives of citizens, enacting maximum safety standards, using tranquillizing darts instead of guns for the police, no power to draft, and so on; or C) you can fight out the particular details of each and every arena of what should and should not properly be the purview of the state, which is politics as we know it.

It is therefore neither consistent nor inconsistent to argue that abortion is immoral and the death penalty is not or vice versa. Because if one brings to the abortion issue criteria not grounded in the state (a regligious conception) one is in effect arguing for a moral limitation on the state's authority. Conclusions on these grounds cannot be derived from looking at the state as such.

If it is moral to abort a fetus that will, for example, be born without a brain or some other severe defect, then there is no particular reason that one cannot also argue that it is moral to terminate a post-birth being who has committed some crime which reveals heinousness to great to imagine, as for example, the fellow recently convicted in CAlifornia of some fifteen murder/tortures. I do not see what society gains by keeping such an individual alive, though there may be some theoretical value, in that if the organic origin of such behavior could be determined (if there is one) perhaps the person could be "cured." In any case it is no more immoral to suggest the termination of an individual who has carried out a private war against society than it is to suggest the termination of groups of individuals who are waging collective international warfare against it. One can say all violence is immoral, and that is a position, but it is no more than that. It is hard to take any of these positions and say any one trumps the other with some particular transcendance.

So, I don't think it is intrinsically immoral to have a death penalty (as a matter of moral considerations as one part framing this debate).

There are many considerations, however, in the pragmatic end of it. For example, Michigan has found that a number of its death penalty candidates were in fact, upon close examination, not guilty of the crimes committed! Something like a third, I think. This suggests that the apparatus for determining guilt is defective, and that, *even if the morality of the death penalty is accepted*, we have legitimate reasons to fear the ability of the police and political appratus (which is subject to the pressures of hysterical public opinion) to carry out its job in a way which insures a high probability of the state's killing the people who are in fact guilty. One could argue that the value of the death penalty is so great that a few innocents killed are not a problem, but most people arguing that postion, I think, would be much happier if experience showed that number to be in 1/100 or 1/1000 rather than 1 in three. When one adds known bias factors in the people being executed, particularly race and the incidence of severe beatings and head injuries as children, one must further question whether one in fact is punishing people who have "chosen to be bad." One could argue, again, that there are some individuals who are so gravely deformed as to merit termination, but it would be easy to pursue this line of argument against drunk drivers and people with severe handicaps, not to mention other diseases.

Another angle, not generally pursued, is the subjective component of "cruel and unusual punishment." Life imprisonment, buggery, boredom, etc., might be more cruel for many individuals than mere death, and it might be humane to give them the option of choosing life imprisonment or death and indeed, to give them the option of death at any time that they might choose to have it, should they tire of imprisonment.

In any case, to sum up: not seeing any particular moral reason *not* to kill people for heinous crimes commited with foreknowledge and planning, I would be inclined to favor the death penalty. As a pragmatic matter, however, there seem to be issues so severe, with regard to implementation, as to question whether the state has anything more than a highly approximative take on who should live or die *by its own criteria*. Highly approximative is not good enough, and for that reason, I oppose the death penalty. But please note that I arrive at this position in a way which does not directly contradict being pro-choice.

-- Gregory P. Nowell Associate Professor Department of Political Science, Milne 100 State University of New York 135 Western Ave. Albany, New York 12222

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