Sunday, May 15, 2005

The Death Penalty Debate After Ross

Serial killer Michael Ross said – and he was right – that a debate on the death penalty could not properly begin so long as he was alive. Connecticut, after much needless soul-searching, executed Ross on May 13, 2005, a Friday the 13th as it serendipitously happened.

The chief obstacle to a rational discussion of the death penalty having been removed, nothing but the prejudices of the disputants now stands in the way of a cleansing debate on the issue. There are prejudices on both sides of the pro and con barricades. Positions already have hardened.

Two important questions must be decided before we can have a rational debate on the issue. The first question is: Should the issue itself turn on broad ethical or religious principles, or should it be decided with reference to particular circumstances?

If the issue is to be decided on broad ethical or religious principles, can we admit exceptions without, in effect, abolishing the guiding principle we are asserting? Cardinal Newman, the great defender of Catholic orthodoxy, would have given a hearty “yes” in answer to this last question: “There is no principle on earth,” he said, “to which there is not at least one exception.” Exceptions, he would have insisted, prove the rule.

The second important question is this: Are those now steering the debate willing to engage in an honest and vigorous exploration of the question? Can we have an honest debate when the overwhelming majority of those controlling the debate already have decided the issue in their own minds?

Since this is an opinion column, it seems appropriate to venture an opinion on these two questions.

The second question is easily answered. There can be no fruitful discussion in the absence of an honest inquiry.

As to the first question, hardened opinion on the death penalty may be too lofty to be practical.

The anti-death penalty marchers who trekked from Gallows Hill at Trinity College in Hartford to Somers, the site of Ross’ execution, did not go out of their way to pay a visit to Griswold, where the families of many of Ross’ victims live. A path connecting the site of the execution with Ross’ victims would have spoiled the symbolism of the march and its message -- which was that executions are never appropriate punishment for such crimes as were committed by Ross.

A train of thought connecting the advisability of capital punishment with particular cases is just too inconvenient for ideologues who do not want the facts of life to interfere with their settled judgment.

Underneath all the roiling and toiling of those intimately involved in the Ross case, a consensus on the death penalty seems to be emerging: The death penalty should be reserved for “heinous” crimes as defined by legislatures.

It should be noted that as soon as the penalty is limited in any way, it is unavailable for cases that fall outside the limits. One may therefore anticipate an uneven and discriminating application of the penalty. But this kind of discriminating use of punishment should not be viewed as violating often cited constitutional rights to equal protection under the law. Even within the limits of the law, the prosecution of capital felony cases may be uneven: Prosecutors are different, and even cases that may seem similar are not identical.

Nor does it seem reasonable to argue, as opponents of capital punishment sometimes do, that felon A, though culpable, should escape justice because felon B had not been prosecuted, when the crimes of both A and B were similar. The failure of a prosecutor to seek a death penalty for B should not mean that he must forced by wrongheaded court interpretation to fail in prosecuting A, when there is good reason to believe that A is guilty.

It may very well be the case, as some say, that capital punishment is on its last legs. If it is eliminated, what just punishment will be available to felons serving life in prison with out parole should they murder a prison guard or another prisoner? And are we certain that life in prison without parole will not fall victim to the same ideologues who, ignoring Newman’s precept, are now agitating against the death penalty? After all, during the last stages of Ross’ prosecution, prominent judges and psychiatrists asserted a causal connection between the duration of punishment and mental incapacity. And life in prison without parole is long; some might even regard it as cruel and unusual.

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