Wednesday, January 19, 2005

Column on Revisiting the Death Penalty

Revisiting the Death Penalty

Tibor R. Machan

California?s governor wouldn?t give in, nor would the US Supreme Court,
so Donald Beardslee, who killed two women in 1981 over a drug deal?while
supposedly suffering from brain damage?was put to death by lethal
injection on January 19th. As reported in the media, Beardslee's defense
attorney claims that he had brain injury stemming from ?several accidents
during his life,? and, furthermore, in prison ?he was diagnosed as having
schizophrenia.? A former warden reportedly has said that ?Beardslee should
have been granted clemency because he was a model inmate.? But none of
this saved the man from California?s death penalty.

For several decades I have opposed this public policy measure, mainly
because it is grossly imprudent. Of course, some people may well deserve
to die for their evil deeds, murder, rape, treason, or something else
that?s totally intolerable in a civilized society. Nor do I think it is
barbaric to kill criminals, since I do not think it is barbaric to kill in
self-defense and the death penalty may at times defend us from a vicious
murderer who may well kill again.

But there are ways to guard against this. What there is no way to guard
against is the occasional application of the death penalty to someone who
doesn?t in fact deserve it. In short, the probability of a mistake is
significant. So no one ought to risk it because it will at times
perpetrate a great wrong.

This is all about us, yes, not about the criminal. We need to be careful
not to kill people who should not be killed and since there is a chance of
doing this when the penalty is death, we should desist.

There is also the factor of cost. With all the appeals and other
administrative maneuvers associated with every death penalty
sentence?Beardslee lingered in prison for over two decades?the expense is
out of this world, far greater than what life without parole costs. Yet
this is secondary. What should matter most is that a mistake is

Does the death penalty deter people? The late Professor Ernest van den
Haag of the Fordham University School of Law, with whom I used to argue
about this matter, held that view for several decades until near the end
of his life he changed his mind. He still wanted those who deserve it to
be put to death but not because this would work to discourage most
prospective murderers. In the main, murderers, other than professional or
contract killers, do not kill as a result of rationally calculating the
pros and cons. They have usually given up control by the time they kill,
although this isn?t inevitable and in most cases they could have walked
away, done something else. It?s not all that different from when ordinary
folks resort to yelling or violence?they had it in them to abstain but let
go of themselves and resorted to improper ways.

So, a murderer is most likely to be beyond weighing odds, which means
that the threat of the death penalty isn?t likely to do much to dissuade
him or her from going ahead with the deed. And the studies pertaining to
this matter seem to show just that?deterrence is a mere hope and works in
but the rarest cases. So what is left? Death for the sake of retribution,
so van den Haag concluded.

OK, that?s not a bad reason but, given the risks, it cannot carry the
day. There are better options, period.

Some have argued that the death penalty is justified revenge, the
perfectly understandable collective venting of the raw emotion in the face
of a grave wronging of someone. It is a civilized revenge because it is
moderated by due process of law. It isn?t done hastily but deliberately.

Again, there is something to this but it doesn?t offset the major
objection?one can go very wrong with this and there is no remedy. Someone
mistakenly placed in prison for even most of his or her life could at
least be compensated for a mistake. Such a person could then lead a very
rewarding if short life, once the mistake has been established (for
example, via DNA testing). But if there is an execution, this option is
closed. And there need not have been such an irreversible policy?no reason
for it exists given the other options that are available.

There is a lot that?s wrong with the world and this part is really very
simple to repair, with no loss to anyone?life behind bars, with no chance
of parole, surely is almost worst for most than dying.

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