The case for capital punishment used to be pretty much a no-brainer, at least for conservatives who believe in right and wrong, law and order, and the authority to reward and punish. But today, with conservative gurus like Pat Robertson, George Will and William F. Buckley Jr. casting doubt on the death penalty and a conservative governor in Illinois suspending all executions in his state, the case for the long drop may take more brains than some on the right seem to possess.
The main reason for conservative uncertainty seems to be the discovery that, with DNA testing, several convicts facing execution have been shown to be innocent. Understandably, ideological enemies of capital punishment seize on this to shout that the judicial process is so unreliable that all executions should be halted forever. That’s understandable because that’s what they claim whether the convicts are innocent or not. What’s not so understandable is why conservatives should fall for it.
It’s not only the sages of the right mentioned above who have fallen. In the June 19 National Review, the lead article, by National Journal reporter Carl M. Cannon, offers what is billed as a “conservative case against capital punishment.” The same issue also sports an editorial on the death penalty that leaves the reader wondering what to think. “Advances in forensic techniques ensure that wrongful convictions will continue to be exposed. This raises political, intellectual, and moral questions that conservatives must address.” It sure does, but the editorial fails to address them.
Earlier this year, Illinois Gov. George Ryan called off further executions because 13 convicts facing execution were freed over the last 23 years after new evidence proved their innocence. Similar reversals of convictions in other states have helped excite the skepticism of the conservative leaders, and the growing number of such cases is the main argument against the death penalty offered by Cannon.
This week, even more such evidence accumulated with the release of a new study of the death penalty in the United States by a Columbia University team of experts that finds, as the New York Times describes it, that from 1973 to 1995, “two out of three (capital) convictions were overturned on appeal, mostly because of serious errors by incompetent defense lawyers or overzealous police officers and prosecutors who withheld evidence.”
The case against the death penalty thus sounds pretty serious. It’s one thing for little old ladies at midnight vigils outside state penitentiaries to bleat about the preciousness of all human life when bloodletters like Charley Manson and John Wayne Gacy are waiting for their dates with Miss Sparky. It’s quite another to show through statistics that innocent people are being executed.
But there’s just one problem with the new case against capital punishment. No one has shown that any innocent person has been executed at all. What has been shown is that innocent people have had their convictions and sentences reversed through the judicial process. So far from proving the iniquity of the death penalty, the “advances in forensic techniques” really do “ensure that wrongful convictions will continue to be exposed.”
And the same techniques will also prove guilt beyond any reasonable doubt, although that may not be enough for some folks. Cannon, in his National Review article, keeps talking about “certainty.” The “right question,” he tells us, is “whether the government should be in the business of executing people convicted of murder knowing to a certainty that some of them are innocent.”
The fact is we know no such thing. Cannon and other new foes of the death penalty also claim that we often can’t know for certain that a convict is really guilty. Well, sometimes we can’t, and sometimes we can. The whole point about the death penalty and what is today the almost obscenely protracted judicial process required to inflict it is that death isn’t supposed to be imposed at all unless jurors are certain “beyond a reasonable doubt.” But that’s not the level of “certainty” the death penalty skeptics are demanding.
“Certainty” at the level they demand is not and cannot be the proper standard for the death penalty or for much of anything else. If it were, we’d never be certain of crossing the street without getting smacked by a truck. Indeed, if that’s the level of certainty we should have for death, why shouldn’t we have it for other punishments as well?
The new case against capital punishment is really no more persuasive than any of the old cases against it. What does seem to be new is a failure of some conservatives, who ought to know better, to see through the sophistries of the argument and to muster the will to invoke moral authority to inflict the proper punishments that real justice demands.