The regional blogosphere has devoted a lot of attention, and reasonably so, to the approaching execution of Elijah Page. I have hesitated to post on this because I am very ambivalent about capital punishment. Were I a legislator (be afraid!) and the question were before me, I would probably vote for abolition. But that's not a campaign promise.
I do note that most of the common arguments against the death penalty are very weak. Here is a list:
People who are pro-life on abortion should be opposed to taking life by execution. The problem with that is that the condemned criminal has committed a crime, whereas the unborn cannot be guilty of anything except cell division. So pro-life, pro-capital punishment folks are not involved in any contradiction. All legitimate penalties are based on the concept of moral responsibility. If you respect my rights, you deserve that I should respect yours. The system of justice is built on that foundation.
If murder is wrong, then the state should not murder a murderer. The problem with this, as lawyers would say, is that it proves too much. You could as easily say: if kidnapping is wrong, then the state should not incarcerate kidnappers. The problem is that murder implies unjust killing, and this begs the question. The state of South Dakota, like any other state, can legitimately do a lot of things that would be crimes if done by private individuals.
Execution denies the human dignity of the condemned person. This was Justice Brennan's favorite, but it is obviously wrong. We don't put dangerous dogs on trial, we just put them to sleep. The trial and penalty process are the most robust recognition of the humanity of the accused. We treat such a person as morally responsible, which is more than we do for any other sort of creature.
The death penalty is racially (or otherwise) inequitable. Wrong again. Outside the South in the earlier part of the last century, the death penalty has been amazingly race neutral. You were a little more likely to be executed for a similar crime if you were white than if you were Black. It's true that execution was more likely if the murderer was Black and the victim white than vice versa, but the latter is very rare and the former is more likely to be the kind of crime (armed robbery) that is most likely to earn the death penalty.
So what about arguments in favor of execution?
The death penalty makes juries more careful. Juries are a lot more likely to condemn an innocent man to a long prison stretch than to death. It has been almost impossible to find a single case where an innocent man was put to death.
The death penalty saves lives. Yes. Murders who are given life sentences often go on to kill other people. Sometimes it's other prisoners, and sometimes it's people on the outside when, in spite of the law's intent, they are released.
The death penalty is life affirming. Again, yes. Precisely because we value innocent lives we think that murders sometimes deserve to die. A man who kills two teenagers and then calmly finishes their McDonald's meals ought to die precisely because life is precious.
So why am I ambivalent? Mostly because I think the Supreme Court has made such a mess of the process that it is simply too expensive and complicated for most states to bother with. I also think there is something wrong when we only execute people who really want it. Lastly, I am sympathetic to Professor Schaff's argument for mercy. There are so many occasions where we have to kill people, maybe we should put it off when we have a choice. I am also sympathetic to the culture of life argument. Maybe Mr. Page deserves to die. Maybe saving his life gratuitously makes us a better people.
On the other hand, Governor Rounds has more to think about than this. He has to decide whether to overrule the decision of juries. He is disinclined to do so, and on grounds of democracy that is the right decision.
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