Saturday, October 16, 2010

The Death Penalty Heresy

I’m against allowing the government to execute any person judicially (short form: I’m against the death penalty). (Quick note on shorthand – I’m going to use the term Killer here; but don’t take that to mean that I mean only those persons who can/have killed, or even that this term includes those who can/have killed. I mean it in the sense of someone who is both a (potential) killer and uses that capacity against the ends of society. If it makes it easier, replace Killer below with violently sociopathic individual, mutant, goblin, or whatever. A solider may be a killer, but he’s channeled his capability into a socially useful form, the deaths he causes are not crimes. Alternately, a kidnapper for ransom or a rapist or a child molester may never kill, but inasmuch as they have taken freedom or other intangibles from their victims they commit as heinous a crime as anyone who kills unjustifiably, and thus he is a Killer.)

I believe that there are people out there who deserve to die. Killers may be rare, but they are out there. If a Killer can’t channel his or her aggressive nature into a socially-useful form, he or she should be weeded out when discovered. Unfortunately, there’s only one time and place where the Killer’s intentions can be known – at the moment and vicinity of his crime. After that, “proof” lies in memory, Memorex, forensic science, and a plausible story. Juries deal in “reasonable doubt” because jurors are human, witnesses are human, scientists are human, lawyers are human, &c. Even cameras and other recording devices can lie by omission, and scientific “fact” be overturned with later knowledge. To be human is to be fallible. But death is irreversible. Commit an act justifying use of deadly force while someone is watching over a gunsight, and the person with the gun is entirely justified in pulling the trigger. But there’s a difference between seeing someone shot dead in front of you and hearing a gunshot and coming around the corner to see a man standing over a dead body with a smoking gun in his hand. In one case, you may know the guy with the gun to be a Killer (though depending on when you came in, you may still be wrong). In the second, you cannot know, because you didn’t see the act.

No-one in the courtroom is seeing the criminal act – at best they’re watching a replay or listening to a memory, and trying to sort the truth from two competing fictions being guided by the plaintiff’s lawyer and the defense lawyer. The plaintiff in a criminal case is the government, standing in the place of society. In the US, the government is my agent, standing in my place, working for me to protect me from a Killer. In a sense, the lethal injection (or whatever form of execution) after a guilty verdict and exhaustion of appeal is a really complicated way of allowing me to shoot the man with the gun dead after I rounded the corner. And I’m not OK with that. Death is an absolute. In the heat of events, it may appear to be necessary to kill someone, based on limited information, in defense of my life or liberty – truly exigent circumstances may demand excessive measures, and being human means being wrong*. Afterwards, “reasonable doubt” means “not absolute”. I’m OK with sending someone to prison based on “reasonable doubt”; it’s not perfectly reversible to release a wrongly imprisoned person, but it’s the best we can do. We can’t revive the dead, though. Executing someone after a trial means thinking long and hard about killing someone, and then doing so based on the best guess; gambling that “reasonable doubt” equals “absolute proof”, and gambling that the government had no axe to grind, no dirty tricks because the prosecution “knew” the defendant was guilty, etc. It might be a long-odds gamble, but it’s still a gamble, and one where I cannot know the odds. I won’t gamble with a life if I don’t have to.

(* – Boy howdy does that creep me out, incidentally. No matter how I parsed the thought, it ended up as a justification for the ends justifying the means. It’s still true, exigent circumstances may demand measures that turn out to be excessive. In the heat of the moment, there may not be a choice, or they may not allow for proper reflection.)

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