Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

"A strong conviction that something must be done is the parent of many bad measures."
  -- Daniel Webster

Thursday, January 19, 2017 :::

I consider myself a mild opponent of the death penalty. I don't consider it inherently unjust -- it may even be more just, in some cases, than the alternatives -- but I don't see that the government particularly needs this power, and I don't think the government should have powers that it doesn't need.

To reemphasize, though, I don't believe that capital punishment is always unjust, and I do think that rule of law is more important. If I were called to be on a jury for a capital crime, I might be a harder sell than some, but if it were clear to me that the defendant was guilty and that those who committed crimes like his were typically -- nearly always -- sentenced to death, it would seem wrong to me not to sentence the defendant to death. If he committed what was, reasonably, a capital offense, and he could have known it was a capital offense, he should not benefit unduly from a stroke of luck that I was seated on his jury and not someone else's. If Dylan Roof had not been sentenced to death this week, I would have to be more resolutely persuaded that the death penalty should no longer exist. If the death penalty had been banned nation-wide and Roof had been sentenced to life, I would not have a problem with that sentence. But if the death penalty is available for premeditated murder with a minor aggravating factor, how could we plausibly not apply it to someone who not only murdered nine people in cold blood but befriended them before doing it? In my mind, to let Roof live would mean either reserving capital punishment to the rarest of mass murderers and traitors or to nobody at all.

On the other hand, the one niggling idea in the back of my brain in favor of capital punishment is as a prophylactic against excessive clemency. For example, I'm not sure Saddam Hussein should have been tried by a court, as though his "crimes" fit within the jurisdiction of an impartial judiciary, but I do think he had to be hanged to allow Iraq to move forward from the despotism of a madman to... well, at least not a despotism that could ever be run again by the same madman. If a knock against capital punishment is that it can not be reversed, if applied in error, a point in favor of its rare application is that it can not be reversed. This should not be an issue in a country in which executive clemency can be reasonably expected to be unavailable to those for whom capital punishment may be warranted. I don't believe the commutation of sentence of Chelsea ("the traitor formerly known as Bradley") Manning by itself moves us from being in a country sufficiently ruled by laws that capital punishment is unnecessary to a country in which it may be necessary, but it certainly does not move us in the right direction.

UPDATE: Obviously, the same applies to the FALN terrorist.

::: posted by Steven at 12:50 AM

If we're to have a death penalty that is available but very rare, the exceptional circumstances I'm often inclined to carve out are "we tried everything else" circumstances, by which I basically mean a prisoner with a life sentence who kills a prison guard with a shiv, or who commits a serious felony after having escaped.

But, yeah, you can't think that jurors aware of some commutations that have been made aren't going to hear "even if you vote against the death penalty, this person will be out" and be quite so sure.
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Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

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