Clearing the Underbrush

Recent events in Massachusetts have reopened a statewide debate over the death penalty. Most recently, the state House of Representatives killed, by a vote of 80-80, a bill it had passed a week earlier (in a slightly different form) that would have reinstituted capital punishment in Massachusetts for the first time since 1984.

Two events have no doubt spurred much of the debate in the state legislature. Jeffrey Curley's tragic kidnapping and murder inspired Governor A. Paul Cellucci and others to press particularly hard for death penalty legislation. Likewise, the somewhat dubious conviction of Louise Woodward for second-degree murder gave legislators pause over voting to allow the state to put an individual to death.

While these events have sparked a renewed discussion of the merits of the death penalty, neither court case should actually determine the outcome of the debate. It was widely rumored that several representatives changed their votes as a result of the "flawed" Woodward verdict. Well-informed debate, not current events, ought to inform the decisions our legislators make.

Likewise, faulty and demagogic arguments both against and in favor of capital punishment ought to be pushed aside in favor of serious consideration of the issue. In the end, in spite of the admittedly serious flaws in the process, the death penalty should be limitedly available as a tool of society in dealing with particularly egregious crimes. Many with particular, moral perspectives will disagree on this very personal and contentious issue. But we must clear the underbrush of the debate before we can effectively engage in it.

Consider, therefore, the following flawed arguments proffered by the exponents of capital punishment:

* "The death penalty deters crime." According to this argument, criminals who would otherwise commit atrocious murders would refrain from such action out of fear of being put to death by the government. The electric chair, according to many death penalty proponents, will cast a long shadow of intimidation upon potential murderers.

Yet very little evidence exists that capital punishment actually deters murder. While deterrence is always difficult to demonstrate, little research has indicated any diminution in crime due to the institution of the death penalty. While the gas chamber may strike fear in the hearts of many, hardened criminals will carry out murders regardless of the draconian nature of the punishment.

* "The death penalty brings vengeance and solace to the families of victims. In fact, executions must be speeded up; death row is too long." This argument holds that a central reason for conducting an execution is the shock value, the satisfyingly swift and sure justice of the chair. Society must rid its vilest elements in good part as a catharsis for those that they most directly affect. Besides, the state could save money: the long death row process of appeals and incarceration adds to an already costly punishment.

Yet often justice must be served in a slow and deliberate, not swift and sure, manner. When society makes the grim decision to put an individual to death, when it terminates its end of the social contract with a human being who has broken his side of the deal, society must proceed as deliberately and as scrupulously as possible. The value of capital punishment lies not in easing the pain of the victims' loved ones but in providing society with a tool that it can use, in exceptional situations, to destroy the absolutely irredeemable.

Opponents of the death penalty produce equally misleading arguments:

* "The death penalty violates our Eighth Amendment right to be free from 'cruel and unusual punishment.'" Some legal scholars contend that state execution can be considered a form of 'cruel and unusual punishment' and is therefore unconstitutional. They argue, on moral grounds, that a society that puts its members to death is barbaric and that barbarism is not consonant with our constitution.

But the 1975 Supreme Court case of Gregg v. Georgia decided that the death penalty does not violate the Eighth Amendment. From a "framer's intent" perspective, the Founders could not possibly have meant to exclude capital punishment from the Constitution since the death penalty was quite prevalent in every part of the Union in the late 18th century. If society decides that capital punishment is in fact cruel and unusual, it ought to amend the Constitution to outlaw it; the death penalty thus falls well within the category of institutions to be established by the majority on a state-by-state basis.

* "The death penalty is racist." This common mantra among the most liberal of capital punishment foes dictates that the state execute a disproportionate number of minorities relative to whites. The NAACP asserts that in 1991, blacks comprised 12 percent of the Texan population but a full 55.5 percent of executed Texans, a ludicrous five-fold over-representation.

But this contention rests on very shaky ground. The NAACP fails to point out that 48 percent of the Texan prison population is black. In general, in certain parts of the United States, some groups sadly constitute a much higher proportion of the criminal population than of the general one. If we assert the inherent racism of capital punishment, we have to declare incarceration to be racist; indeed, we must indict our justice system as a whole.

And precisely in the justice system do we find the arena of the bulk of death penalty discourse. Even those who have no moral opposition to the state's disposal of its worst criminals doubt whether society ought to adopt such a powerful and dangerous weapon. After all, death is permanent: if we put someone in jail for life, we can always free him if new evidence crops up; but if we execute him, we cannot undo any subsequently discovered injustice. However, this is a difference in degree, not in kind. We must consider it a societal tragedy if we wrongfully incriminate the innocent, whether we kill or incarcerate them.

Our generally effective justice system requires a good deal of fixing, to be sure, and all of society must take part in that effort. But we cannot operate any sort of society if we have no basic confidence in our system. Instead, if the majority of any state supports the use of a weapon more forbidding and dangerous than any thermonuclear device, it ought to be allowed to wield that weapon. It must, however, exercise the utmost caution in the use of that weapon so that the rampant tide of current events, the Curleys and Woodwards, does not unduly influence the pulling of the trigger.

Michael M. Rosen '98, a Crimson editor, resides in Quincy House.

"Well-informed debate, not current events, ought to inform the decisions our legislators make."