Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

Today's Show: at JT's Grill, 2210 East 54th Street and---I wish Scott Tibbs would stop by or at least respond.

   The death penalty is an archaic means by which fewer societies attempt to address crime.
   There are several reasons advanced “for” the death penalty. I addressed several this week in two of my posts on this blog. Scott Tibbs, who blogs at ConservaTibbs, had posted his view that we, as a society through our government, should ban lethal injection as a method of execution. He advocates firing squad, hanging and electrocution. I stated my view that we should abolish all means of capital punishment.
   I thought Mr. Tibbs might respond. Maybe he does not check the “Ogden on Politics” home page to check headlines of Indiana bloggers and missed the header in which I placed his name. Maybe he chose to ignore my posts.
   I want to look at arguments “for” the death penalty. As I wrote the other day, those reasons either lack factual support or are dated.
   1) One reason I did not list is that imposition of the death penalty—to execute a person to show to others that killing is wrong—is antithetical to the notion killing is wrong. I will state this concept another way. If we execute a Ted Bundy to illustrate that killing people by numbers is wrong, as we kill people by numbers, we have committed the same acts as Ted Bundy.
   2) In recent years, preservation of the sanctity of the Constitution has become popular. People advocate the concept of “originalism”—interpreting the Constitution as the Framers at the Constitutional Convention in 1787 meant for it to be interpreted—has gained favor, particularly amongst people who have read little of the history of the Constitution. Justice Antonin Scalia of the United States Supreme Court advocates originalism. He has pointed out that, in the days of the Framers, children as young as seven could be executed. Therefore, in his jurisprudence, if a State today were to legislate the death penalty for seven-year-olds, that would be consistent with the intent of the Framers and, therefore, would pass constitutional muster. There are many problems with originalism as a means of construing the Constitution. I have written about these flaws in greater depth previously, so, quite briefly: a) There is no way to discern the “intent” of the Framers; b) Who were the Framers—the 36 men who signed the Constitution? The 39 who were present at the signing of the Constitution? The 55 men who were present, at one time or another, during the Constitutional Convention in Philadelphia in the summer of 1787? The hundreds of white men who attended various State ratification conventions after the 1787 Convention adjourned? Justice Scalia says we should look to the beliefs of the common people of the time. How might we do that, since many people did not leave written accounts of their beliefs about the Constitution? c) The Framers did not advocate “originalism”; Madison, dubbed the “Father of the Constitution,” wrote that people would construe the Constitution for themselves; d) If we focus only on the Framers, whomever they were, we ignore the people who had no voice even in the process of selection of delegates to the Constitutional Convention—women, non-whites held in bondage, peoples who were indigenous to this continent when Europeans arrived; e) “Originalism” tends to ignore results of the process of amendment, set forth by the Constitution itself in Article V, such as expansion of Federal authority in the so-called Civil War Amendments, but especially the process of our society’s evolution so that what is considered today as “cruel and unusual punishment” is different from that considered as such in 1787.
   3) Mr. Tibbs advocated capital punishment for those “who deserve to die.” I am not sure we can make such a blanket determination within any system we might create. If we return to the “good old days” when the death penalty was imposed for various crimes, other than murder, we allow people to die because of current pasions as to particular categories of crime. In the 1960s, sone would have said execute “drug pushers.” Of course, we have seen the failure of the whole “war on drugs.” Mr. Tibbs might feel very secure in what his supreme deity has told him is just and fair—“who deserves to die.” I am not so sure others believe the deity or deities they worship endorse such carnage.
   4) I have addressed the notion of “deterrence.” If the death penalty deters crime, we would expect to see lower homicide rates in those States with the death penalty and, conversely, higher homicide rates in those States without the death penalty.  Yet out of the top ten (10) States for homicides in 2012, nine (9) had the death penalty. Texas and Florida, where numbers of executions seem to be matters of gubernatorial pride, ranked 24th and 17th, respectively, in homicide rates. Homicides are not deterred by the death penalty.  One may argue an individual who kills and is executed will not kill again. Unfortunately, one must make sure that person really is guilty for this argument to have efficacy. Given the number of people erroneously convicted and sentenced to death, this argument “for” DP is not strong.
   5) Retribution. This is a good reason to execute someone—if one embraces passions of the 18th  centuries and centuries earlier. In 1851 the Indiana Constitution provided that principles of reformation and not vindictive justice would guide our penal code. Ind.Const. Art. I, Sec. 18.
   6) Money.  If one wishes to carry out “vengeance,” it would seem to be cheaper to “kill” than to incarcerate.  Because our Supreme Court has—correctly—tried to safeguard rights of the accused in capital cases, the bill for a capital prosecution and subsequent appeals is rather high. The bill for a DP case can run a couple of million dollars. Advocates of DP might say this is a weakness of capital punishment. If we just shoot (or hang or fry) the bastards, there will be less uncertainty and more deterrent effect of capital punishment. Given the high rate of error in this particular area of law, swift justice is not “justice”—“fair and proper administration of laws”—at all. The execution cuts short a determination of truth.
   7) Recidivism. If we execute murderers, those murderers will not kill again. Recidivism amongst those convicted, according to a 2002 study by the U.S. Bureau of Justice Statistics, showed that only 1.2 percent of those released from prison after serving a sentence for murder committed another murder after release.
   Today’s Show will be at JT’s Grill at 2210 East 54th Street, from 11 am to 1 pm. The food there is great and the people friendly. You should feel free to join us. You also can call in or listen. The Show is carried on “Indiana Talks” dot com.
   I just wish Mr. Tibbs at least had given his opinion on the arguments I raised. I do not necessarily expect him to respond to the arguments. Defense of the position he has taken is difficult, at best.


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