The long slow death of the death penalty

For an exam in a freshman English class 59 years ago, I chose to write my essay on the death penalty and why I opposed it. It was perhaps naive, but very earnest. I have never wavered from that position since.

There are, of course, the rational arguments: there are far too many innocent people wrongfully executed, and we can't seem to eliminate those mistakes; studies show that it is not a deterrent to serious crime, despite supporters insistence to the contrary; it has historically been applied disproportionately to minority groups.

But to me the over-riding argument has always been the moral one. I cannot accept the role that forces me to participate, as a citizen of our society, in the decision that someone else must die. All arguments about what heinous crimes the person may have done do not change my mind on that position. Not that the suffering of the victims doesn't matter, but to me it's irrelevant to the moral position that, when society decides in cold deliberation to kill one of its members, it descends to the level of the criminal. No august judges in black robes and no marble walls are enough to make this anything other than eye-for-an-eye, murderous "justice," in my view.

The idea of vengeance has never appealed to me. Some have said that I am too afraid of my own aggressive impulses and shun violence for that reason. Maybe. But to me it feels more like a philosophical and moral position.

But yesterday there was a story by Adam Liptak in the New York Times about the American Law Institute, a group of about 4000 judges, lawyers and law professors that "synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything." In this function, it had provided the intellectual framework for the modern legal system for the death penalty system some 50 years ago.

Last fall, the group declared the project a failure and "voted in October to disavow the structure it had created 'in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.'”

In effect, they were saying that the system of fairness guidelines they had tried to establish was "irretrievably broken." Although it will make little immediate difference in decisions -- because this group's decision does not change any laws -- it will have long term implications for the way people think about it. For example, Law Professor Samuel Gross said:

“Law students who take first-year criminal law from 2010 on will learn that this same group of smart lawyers and judges — the ones whose work they read every day — has said that the death penalty in the United States is a moral and practical failure.”

So be it. May the death penalty RIP.

Ralph