Alexander's Column

Deadly serious

Mark Alexander · Jun. 1, 2001

The persistent temptation of our age is to give way to our culture’s concept of “tolerance” … and allow evil to be called good, and good, evil, and to let stand unchallenged those deceptions. Such confusions are especially poignant in debates over capital punishment.

Some death penalty opponents say, taking human life is barbaric, and progressive civilizations will not commit barbaric acts. Other opponents hold that humans are naturally good, so that their wrongful acts must have exogenous causes they cannot be faulted for.

And to those simple objections, the official Vatican position adds moral substance, contending that the giving of life belongs to God alone, so that the state should not usurp divine authority by executing murderers. Our Catholic brethren further have a flawlessly pragmatic aspect to their conscientious objection to capital punishment – when murder has removed one soul from our midst, why not attempt saving the soul still present with us in this life?

Added into this mix, and a particular complication for our country, is that in recent years the rule of law has degraded substantially. As fully half of the Constitution’s Bill of Rights deal with citizens’ rights in court, it is unremarkable that the lack of respect paid the Constitution is demonstrated in overall decay in our criminal justice system.

People wondered, how could such a well-trained lawyer as Bill Clinton commit perjury and treat his legal affairs as cavalierly as his extramarital affairs? But perhaps the question is backward; given Clinton’s training in legal practice, as practiced now, how could he not have?

We could cite the Senate’s failure to convict Clinton after his impeachment, of course. But Clinton’s own approach to the death penalty is even more illustrative. On the cusp of the 1992 presidential primary, seeking to embellish his “tough on crime” New Democrat image, and to dispel the scandalous charges of Gennifer Flowers, Clinton took a time-out from campaigning to preside in Arkansas over the death sentence of brain-damaged murderer Rickey Ray Rector. That execution, however, was illegal, as Rector was so mentally incompetent he could not participate effectively in his own defense, understanding neither the charges against him, nor the punishment he was to be given. Then, with the 1996 re-election campaign impending, Clinton supported and signed the Effective Death Penalty Act, which prevents nearly all legal appeals from death row. Does anyone doubt that Clinton has exploited the death penalty as a cheap political symbol?

The state thus bears its sword with stunning cavalierness.

Such vexations led veteran journalist Carl M. Cannon to ponder in National Review a year ago: “If a democratic society executes criminals with the foreknowledge that some percentage of them are innocent, are all members of that society implicitly guilty of murder themselves? And does it matter, from a moral and theological viewpoint, that we can’t know which convicts, specifically, will go to their deaths for crimes they did not commit, if we admit that some will? …Murder is a terrible crime. And … what name shall we call the state-sanctioned killing of an innocent man?”

Cannon’s case against the death penalty derives from the properly astringent “conclusion that government is by nature inefficient and inept.” The problem with Cannon’s argument is that it despairs of improvement – when improvement is not only possible, but also requisite, to serve the cause of justice.

Even more troubling is analysis from our esteemed colleague Paul Craig Roberts chronicling the decay of true justice. He observed, “[T]he real concern is not with the death penalty, per se, but with wrongful conviction taking the life of the innocent. …Why is the rate so high for such a serious crime as murder? … The wrongful conviction rate is high for every crime. Wrongful convictions result from three factors: the breakdown of the prosecutorial ethic, the erosion of the legal principles that protect the innocent and plea bargains.”

The prevailing “legal culture” has created an intensely unequal set of applications and processes in the law – to the exclusion of search for truth of guilt or innocence. This is done in our name, on our behalf, so we, the people, bear final responsibility. Government attorneys, after all, bring cases denoted “The People vs. Defendant X.” And “big government” law has created such inequality before the law that even conservative supporters of capital punishment, such as Illinois Governor George Ryan, now favor a temporary moratorium on executions.

The Federalist Editorial Board supports the death penalty. We believe the Biblical teaching is that capital punishment is permitted and also necessary for restraint of evil. Moreover, the Constitution’s 5th Amendment explicitly provides for forfeiture of life after due process of law. Capital punishment serves the noble objectives of deterrence, retribution, and incapacitation. Although proper justice isn’t good because it works; it works because it’s good.

So we even more emphatically support the equal and entire application of the death penalty as well. That translates into favoring a death penalty for any citizen witness or government agent – including law enforcement officers and government attorneys – who freely and knowledgeably participates in convicting an innocent citizen. We call “the state-sanctioned killing of an innocent man” intolerable. Our laws should once again treat government power of execution with sufficient moral seriousness. Knowingly suborning perjury, withholding exculpatory evidence, or otherwise willfully preventing an effective defense against capital accusation, should also be a capital offense.

The real concern is murder – intentional killing of innocents. And that’s just as much murder when done “by law” in the name of the people, by government lawyers in the court system, as when committed by private citizens for personal gain. This broadening of application of capital charges wouldn’t guarantee perfection in putting to death only the guilty, but that change would assure we were exercising the government power of execution with the seriousness it deserves.

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