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Death Penalty

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The Supreme Court is on a rip against the death penalty, ruling last week that mentally retarded convicts can’t be executed and this week that only juries, not judges, can decide the facts that justify imposing death. Neither decision appears to be very good law, but it’s the former decision that takes the prize for bad logic and dangerous results.

Justice Paul Stevens wrote the decision in the 6-3 ruling in the case of Atkins v. Virginia, arguing that because in the last few years several states have outlawed the execution of mentally retarded convicts, therefore “it is fair to say that a national consensus has developed against it.”

But in the first place, it’s not clear that any such “national consensus” exists. Of the 38 states that allow capital punishment, 18 have laws that bar the execution of retardates. That means that 20 states do not have such laws. In other words, the majority of states that practice capital punishment have little or no problem with executing the mentally retarded. Those that do don’t always agree as to who’s retarded, how to tell, or who should decide. Hence, there is no “national consensus.”

In the second place, it’s by no means clear what a “national consensus” has to do with whether a practice is constitutional. If there were a “national consensus” that only certain ethnic minority members should be executed, would the Court uphold that? Fifty years ago, when the Warren Court played mumblety-peg with the Constitution, it routinely overrode the existing “national consensus” on a whole series of issues. Many of its decisions were legal garbage, but the whole point of having a Supreme Court composed of unelected judges who hold their seats for life is so they can defy “national consensus” when it violates the Constitution.

But Justice Stevens appealed to the Constitution as well, citing the Eighth Amendment’s prohibition of “excessive” bail and fines and “cruel and unusual punishments.” But this principle applies to the retarded only if you assume that their culpability in capital crimes is less than that of mentally normal criminals. Justice Stevens merely asserts that such is the case: “Because of their disabilities in areas of reasoning, judgment and control of their impulses, however, they [the retarded] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”

In most cases involving retarded defendants, that’s probably not true. It may be true in cases in which the defendant is so retarded he probably wasn’t able to commit the crime at all, but in the case before the Court, of Daryl Renard Atkins, with an IQ of 59, it clearly was not true. Atkins with an accomplice kidnapped a man, robbed him at an ATM machine, and then, as Justice Stevens described the crime, “took him to an isolated location where he was shot eight times and killed.” Atkins, in other words, was bright enough to know to try to hide his crime. How is he less culpable than any other murderer?

Of course, if the retarded are “less culpable” than normal people, why are they allowed to be free at all? They’re still capable of murdering people, robbing them and causing all sorts of damage and injury. If they’re just too dim to avoid doing so, they belong in institutions, not on the streets. Moreover, if mental retardates shouldn’t be executed for the capital crimes they commit, why should they be imprisoned? Imprisonment presupposes moral and legal culpability just as much as the death penalty. The logic of the decision points toward the abolition of punishment itself.

The funny part of the Court ruling in the Atkins case is that exempting mental retardates from the death penalty almost necessarily involves using the concept of IQ. For the last few years that concept has been in the doghouse with the Progressive Element because IQ tests suggest the existence of racial differences. Blacks score about 15 points lower on average than whites, and lots of researchers are convinced the differences are genetically based. To avoid dwelling on the rather un-progressive implications of that fact, some educrats have been abandoning IQ tests as “racist,” “white supremacist,” and all the rest. Now, when such tests seem able to keep murderers and rapists alive, the progressive types have discovered that IQ is useful after all.

Penal experts estimate that about 10 percent of the 3,600 inmates currently under sentence of death may be mentally retarded, which means that some 360 murderers who are not the sharpest tacks in the carpet may someday be able to pay you or your family or someone else or his family a visit. If and when they do, remember who it was that decided these brainless killers are not really to blame for what they are about to do to you.

• Category: Ideology • Tags: Death Penalty 
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In the current crusade against the death penalty, one bad argument seems to be just as good as another. Having convinced various conservatives to doubt or actually oppose capital punishment because DNA testing shows some convicts to be innocent, the crusaders are now trying to work on the liberals with the argument that the death penalty discriminates against minorities. The simple response to the DNA argument is that (a) no one has yet proved that any innocent person has really been executed; what has been proved is that some persons under sentence of death were really innocent because their DNA was shown to be different from that of the real but unknown criminal found at the scene of the crime; and (b) if DNA in some cases proves innocence, in others it proves guilt. There’s no question that people proved innocent by DNA testing should not be executed. Why shouldn’t those proved guilty of capital crimes by the same tests be executed?

The response to the argument that the death penalty discriminates against minorities is even more simple: So what if it does? A valid argument against capital punishment must show either that innocent people are being executed — which, as mentioned, no one has shown — or that even guilty people don’t deserve to be executed. So-called “humanitarians” have generally relied on the latter argument, which most people, at least in this country, have never found very convincing. To refute it, all you have to do is drop a few names: Charles Manson, Ted Bundy, John Wayne Gacy, Jeffrey Dahmer, etc., etc.

In the case of discrimination against minorities, no one has shown that the blacks and Hispanics condemned to death are innocent or that more innocent blacks and Hispanics are condemned than innocent whites. All that has been shown is that more blacks and Hispanics are condemned to death than whites. As mentioned above, so what?

Last week The New York Times, which seems to be on something of a tear on the death penalty, carried a front-page story about a Hispanic gentleman under sentence of death in Texas. Juan Raul Garcia is actually a federal prisoner and, if he dies on Aug. 5 as scheduled, will have the dubious honor of being the first convict executed by the federal government since 1963.

But the point about Garcia is that he and his lawyers claim it’s unfair for him to get his dose of the hot juice at all because there haven’t been enough white people juiced as well. No one seems to claim that Garcia is innocent of the three murders and drug smuggling of which he was convicted, and no one seems to be arguing that the death penalty is too harsh.

What they do argue is that of the 27 defendants against whom the Justice Department (under President Bush’s administration) sought the death penalty for drug-related killings during the “drug war,” 23 were black or Hispanic. Since 1988, they also claim, the Justice Department has sought the death penalty against 199 defendants in all; 76 percent of them are minorities and 52 percent are black. Of 21 federal prisoners now under sentence of death, 62 percent are black. And, once again, after being deluged with this statistical flood, we are led to ask: So what?

It is well-known that in the United States, for whatever reasons, there is a higher crime rate among blacks and Hispanics than among whites, and simply on the face of the evidence about crime rates, there is every reason to expect that more blacks and Hispanics commit capital crimes than whites. Therefore, it’s not surprising that there would be more blacks and Hispanics arrested for, tried for and convicted of capital crimes, or that more blacks and Hispanics would be sentenced to death.

It makes no sense to argue that convicts whose guilt of capital crimes is not in question should not be executed because more of their race are sentenced to death than of other races. The obvious next step in the argument is to claim that blacks and Hispanics shouldn’t be imprisoned either because not enough whites are being imprisoned. Most of the arguments against capital punishment that are being lobbed up and down these days also apply to just about any kind of punishment.

And that’s really what’s going on here, isn’t it? Governing, among other duties, involves punishing and sometimes killing criminals, and it is that duty that the governing authorities of this country are beginning to find so difficult to carry out and almost impossible to defend philosophically. The problem with capital — and eventually with any kind of — punishment is not who’s guilty and who’s innocent, but that those who are supposed to punish the guilty and protect the innocent from them no longer have the will to do so.

• Category: Ideology • Tags: Death Penalty 
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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.

• Category: Ideology • Tags: Death Penalty 
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One of the sneakier tactics of the anti-death penalty lobby, led by the American Civil Liberties Union and similar groups, is to claim that capital punishment ought to be abolished because blacks are sentenced to death more often than whites or because poor people get the hot juice more frequently than rich people. Because everybody knows the ACLU and its comrades are of leftish orientation, most sensible lawmakers just ignore their whinings as ideologically driven. Now, thanks to the Grand Poobah of the Christian Right himself, Pat Robertson, that may no longer be possible.

Last week at a conference at William and Mary College in Virginia, Robertson, founder of the Christian Coalition and the Christian Broadcasting Network, unbosomed his latest cogitations on capital punishment. While he acknowledged that there are biblical grounds for executing certain criminals, Robertson also said in response to a question from the audience that “I think a moratorium would indeed be very appropriate.”

A moratorium would be appropriate, he thinks, because of the very reasons the left-wing ACLU always rakes up — that those defendants sentenced to death, at least in Virginia according to a recent ACLU study, had lawyers who were more likely to be disbarred or disciplined and were therefore probably less competent. Also, as administered in the United States today, the death penalty is supposedly biased against racial minorities.

There are strong grounds for rejecting both of these claims. Virginia’s Attorney General, Mark Earley, denounces the ACLU study as “a biased and erroneous report” and affirms that “in every Virginia execution since 1982, the prisoner’s guilt either has been undisputed or conclusively established.” That is the point, isn’t it — whether the condemned prisoners were guilty of capital crimes or not, not whether they were black or white, rich or poor or had Clarence Darrow or Fred Flintstone as their mouthpiece?

But aside from the dubious validity of the ACLU’s claims, Robertson, supposedly a pillar of the political right in the country and the Republican Party, has done an immense disservice to the cause of criminal justice by his thoughtless remarks. As is not unusual when leaders of the right prove themselves to be useful to the causes of the left, Robertson’s stature suddenly began to climb after he made his statement.

Michael L. Radelet, chairman of the sociology department at the University of Florida and a leader of an anti-death penalty group known as Moratorium 2000, announced that he was “stunned” by Robertson’s remarks. “He is unquestionably one of the big moral leaders of the United States,” Radelet spouted of Robertson. Since when has the left regarded Pat Robertson as a “big moral leader”? When he denounces homosexuality, opposes abortion and demands prayer in schools, Pat Robertson is a religious bigot and crackpot. When he suddenly calls for ending capital punishment, all of a sudden he’s a “big moral leader.”

Even if the ACLU case against the death penalty were valid, the remedy is not to stop all further executions but to make the death penalty more just in its application. By the same logic embraced by Robertson, you might as well halt all punishment of criminals if you could show that blacks go to prison more than whites or that defendants who go to jail had worse lawyers than those who didn’t. What’s amazing about Robertson is that he appears to have swallowed whole the socio-babble that the ACLU has always confused with real justice.

As for the myth that blacks get the death penalty more often than whites, author Jared Taylor, in his 1992 study of race relations, “Paved with Good Intentions,” replied to that. “White murderers,” Taylor wrote, citing criminologist William Wilbanks, “no matter whom they kill, are more likely to get the death penalty than black murderers (11.1 percent to 7.3 percent). Furthermore, whites who kill whites are slightly more likely to be on death row than blacks who kill whites. Finally, whites who kill blacks are slightly more likely to be on death row than blacks who kill whites.” It’s dubious the truth about race and the death penalty today is much different from what it was in 1992.

Robertson apparently shot his lip off without knowing the truth or thinking through the implications, ethical as well as political, of what he said about the death penalty. That’s not untypical of the “Christian Right” movement, of which he is a leader, nor indeed of what today passes for the “mainstream right,” religious or not. If serious conservatives want to defend the death penalty as an ethically based and socially useful means of punishing evil and protecting the innocent, they’re going to have to look for a leader somewhere else than in Robertson and the movement he leads.

• Category: Ideology • Tags: Death Penalty, Pat Robertson 
Sam Francis
About Sam Francis

Dr. Samuel T. Francis (1947-2005) was a leading paleoconservative columnist and intellectual theorist, serving as an adviser to the presidential campaigns of Patrick Buchanan and as an editorial writer, columnist, and editor at The Washington Times. He received the Distinguished Writing Award for Editorial Writing of the American Society of Newspaper Editors (ASNE) in both 1989 and 1990, while being a finalist for the National Journalism Award (Walker Stone Prize) for Editorial Writing of the Scripps Howard Foundation those same years. His undergraduate education was at Johns Hopkins and he later earned his Ph.D. in modern history at the University of North Carolina at Chapel Hill.

His books include The Soviet Strategy of Terror(1981, rev.1985), Power and History: The Political Thought of James Burnham (1984); Beautiful Losers: Essays on the Failure of American Conservatism (1993); Revolution from the Middle: Essays and Articles from Chronicles, 1989–1996 (1997); and Thinkers of Our Time: James Burnham (1999). His published articles or reviews appeared in The New York Times, USA Today, National Review, The Spectator (London), The New American, The Occidental Quarterly, and Chronicles: A Magazine of American Culture, of which he was political editor and for which he wrote a monthly column, “Principalities and Powers.”