Weekly Rant

A Defense of the Death Penalty

This week, two Americans were put to death. One by hanging, one by the firing squad. In a world where capital punishment is often seen as cruel and unusual punishment, even by a "humane" method such as lethal injection, these methods which have been used since the invention of rope and projectiles seem more barbaric than ever. Can a civilized society condone, let alone practice, the execution of its citizens? Is capital punishment a practice best placed on the scrap heap of history along with other antiquated and obsolete ideas?

Glad you asked.

My opinion counts as much or as little as anyone else's on the matter, and if you're reading this I assume you care what I think. I'll do my best to make it worth your while.

Execution: Is it Murder?

Maybe. I believe the state, like an individual, can kill in a number of ways. Think of the many ways the law can describe a death. There's murder in several degrees, manslaughter (voluntary and involuntary), justifiable homicide, self-defense. The victim is just as dead in every case, so what separates these terms? The intent of the killer.

I believe that an executiion can be murder, but that an execution is not always murder. In fact, I believe that in many cases the execution of a convicted criminal is an act of societal self-defense.

The Founding Fathers did not consider capital punishment out of the ordinary. It was a well-established part of their society, both the society of Great Britain from which they had rebelled, and the society of the United States which was embodied in the U.S. Constitution. It was acknowledged as a means of dealing with high crimes, and is mentioned explicitly in the Constitution.

Granted, times change. Societies that freely--often too freely--practiced executions in the eighteenth century have since abolished it, England and France in particular. Societies that still practice it are considered barbaric, often with good reason. The countries that sanction the killing of its citizenry are not held in global esteem.

But are the death camps of Nazi Germany or the slaughters in Tianamen Square the same as an execution in America that comes after a series of trials and appeals, where the due process of law has been given to the accused, and is still found worthy of death by his peers and by the highest courts in the land?

People will disagree. There are those who feel that all killing is murder, and that even a murderer should not be killed, because that reduces the State to the level of the murderer. It is an opinion I respect, though I disagree with it. There comes a point where society, like an individual, may decide it has no choice but to defend itself. For an individual, the choice is a matter of life and death for himself or for a loved one. For a society, the choice may be between order and anarchy.

What is government? In ancient and not-so-ancient times, governments were formed to protect people, usually from outside forces. Societies were typically very small at first, as large as a village or as small as an extended family. Survival was often a matter of banding together or perishing. Laws were strict: obey, or die. One or a few rebellious individuals could jeopardize everyone. Exile was sometimes employed, but as often as not--until societies became more established and closer together--exile was tantamount to death.

Was this cruel? Perhaps. Was it necessary. Often, yes. I imagine that in those ancient and smaller societies, where everyone knew each other, sentencing one of their own to death or exile was heartbreaking. But a leader, particularly a patriarchal head of an extended family, had many lives to account for. The punishment of one, however difficult, often meant the survival of the whole.

Society often demands that its people kill. War is an obvious example. The government sees a threat from outside, and chooses to act. Millions of lives were lost in World War II, and hundreds of thousands fought and killed for their countries, and for their comrades. On all sides, I would suggest, there were murderers as well as honorable patriots. The distinction for individuals is attitude. If a soldier kills because he feels he must, to save lives or to preserve the homeland or freedom or his foxhole buddy, he is not a murderer. If a soldier kills because he derives pleasure from it--because he likes killing--I believe the lives he takes will be on his own head.

This brings me back to the subject of executions. Every time someone is executed in Utah, where I live, I see three groups of people. Those who gather to protest the execution, for whatever reason. Those who celebrate the execution, for whatever reason. And those who simply acknowledge that it's happening and don't comment one way or the other.

As a citizen, I feel that there is a category of crimes so reprehensible that its perpetrator has voluntarily renounced his citizenship. He violates the rights of others. He causes people to lock their doors and bar their doors and cower in their rooms, afraid to make eye contact with anyone for fear of his life, liberty or property. In extreme cases, the perpetrator effectively renounces everything society stands for, and becomes a danger to its continued survival.

Anarchy is the death of society. Lawlessness is the death of society. When laws are not heeded, those who would obey law are denied the protection that society is supposed to provide. If people do not feel they can count on society to protect them, they take the law into their own hands, which imperils society even further.

Remember when the phrase "getting away with murder" meant something extraordinary? In 1996 America, getting away with murder seems the norm rather than the exception. Which explains why America has one of the highest homicide rates in the "civilized" world.

This is why I condone the concept and the practice of capital punishment.

I stress, though, that I do not cheer when a condemned prisoner is executed. Like those who oppose captital punishment, I feel that the intentional taking of any human life is a tragic thing, however necessary I think the death may be. I consider anyone who parties, chants "na na na na, hey hey hey, goodbye" as the hour of execution nears, to be murderers in their hearts and worthy only of contempt for their attitude.

I imagine at this point I've offended everyone, proponents and opponents alike.

Why is it wrong to cheer an execution?

In my opinion, what separates a murder from other types of killing is the attitude of the perpetrator. If the law says that a particular crime carries with it the death penalty, it is one thing to decide that it is an appropriate punishment and another to want to "see the bastard fry." One attitude is the acknowledgement of justice; the other is bloodlust.

There are those who forgive the killer of their loved one, who insist that they do not require the death of the killer. I believe that is noble, but I don't believe the decision is theirs alone. In criminal cases, it is "the people versus x," as in We the People. The crime was against society as much as against an individual or individuals within that society, so the punishment is meted out by the society which must preserve order or perish.

I can't say how I would react if someone I loved was killed and the killer caught and tried. Ten years ago, a close friend of mine was raped; my reaction was impotent, bitter anger. I wanted to see the perpetrator punished: jailed at the very least, castrated (or worse) even better. Over time, my anger cooled. My desire for justice remained, but my thoughts of vengeance subsided.

That, in short, is the difference. Justice is supposed to be blind, and dispassionate. To carry out trial and sentencing while passions are inflamed impedes the process of justice, and society is harmed further. The days of the old West, when citizens stormed the jail and lynched the accused should remain in the past.

The Bill of Rights in the Constitution "guarantees" a speedy trial, and several other protections granted to the accused. The victims are not the prosecutors in a criminal trial, but We the People. Guilt must be proven beyond a reasonable doubt. Sentencing is performed separately from the determination of guilt or innocence, and mitigating factors generally reduce, not increase, the severity of the sentence. As a percentage of crimes committed, the death penalty is a tiny fraction of initial sentences. Appeals in capital sentences are automatic. By the time all the appeals are exhausted and the sentence confirmed, years have passed. For the close relations of the victim(s), the pain of the crime may still linger, but for most the passions aroused by the crime have long since subsided. In my mind, this is a good thing--an execution should not be carried out in the heat of passion. (I do think, however, that the appeals process shouldn't take as long as it does.)

A lawful execution should be a sober occasion. I am a transplanted Utahn; none of the men who have been executed since I moved here committed their crimes while I was here. I have no personal stake in their sentences. I follow the news, and know what each was convicted of; there's no way to avoid it. Those who remember the crimes when they were committed had strong feelings about the sentences, one way or another. Some felt that death was "too good for him." And suggested that they should be killed as they killed--forced to drink drain cleaner, fountain pens kicked into their ear canal, etc. Others felt that no crime, however heinous, justified another death. I disagree with both attitudes...but I have some respect for the latter.

We should all sorrow when society kills, be it in war or in law. In one sense it signifies the failure of society to succeed by peace. Those who do not respect the society, from without (adversaries in war) or from within (criminals who willfully violate its laws and harm its citizens), endanger it. Society, like individuals, must be able to defend itself from its enemies, both foreign and domestic. When the defense is complete, society must mend and move forward. We wage war until peace can be restored. Soldiers prefer peace to war. The police prefer law-abiding citizens to law-breakers. In a perfect society, there would be no need for soldiers or for police; there would be no enemies or lawbreakers to require them.

We are not there now. In a very real respect, we have the government we deserve. We have capital punishment because we have experienced crimes we deem worthy of it, and try to discourage in the strongest possible terms. And yet even after the laws are pronounced, those crimes continue to be committed, crimes so serious their severity passes through the gauntlet of mercy until the only recourse is death.

When society kills, it should be done in the name of justice, not revenge or retribution.

Killing the Right People

One criticism of the death penalty is its implementation. The better your lawyer, the better your chances of avoiding it. If you are poor, your chances of getting a "dream team" of defense attorneys is next to nil. Other factors--geography, nature of the crime, public sentiment, "celebrity sentiment," media attention, race, etc.--can also play a part.

Opponents of capital punishment can point to executed individuals who were later proven innocent, or to current residents of Death Row who they believe they can prove should not be there. I acknowledge this. But that does not invalidate the process. Two centuries of law have refined the process, but I don't think the refinements are all in place. The passion of those opposed to execution have helped make the process fairer--more bulletproof, as it were.

That's a good thing. The skeptics keep the proponents, and the process, honest. And it reduces the chances that an innocent person will face the ultimate penalty, particularly those who don't have the means to afford a potent attorney the first time around. The further the appeals process goes, the more removed from the scene of the crime, the more important the process and the facts become. And the more likely the judges to err on the side of caution.

Cruel and Unusual Punishment?

Definitions of "cruel" and "unusual" vary. In a democracy, it is determined by majority vote. In a republic, it goes even further; all three branches of government get involved. It may change with the times; for several years, capital punishment of any kind was abolished in the U.S, but was later overturned. It is now decided on a state-by-state basis. The courts say it's legal in principle, but limit its use in practice. Legislatures may institute or abolish the death penalty option. Governors may veto the legislature's decision. State supreme courts may vote to overturn every death sentence that is appealed t them, or not. State by state, case by case, the decision of life or death is not taken lightly. Those on both sides of the issue guarantee that.

In Utah, the recent execution by firing squad raised international concerns. Even the governor of Utah would prefer that the firing squad not be an option. Other states use hanging, the gas chamber, the electric chair, or (increasingly) lethal injection. Each new innovation in the science of death has been an attempt to reduce the cruelty of execution.

In addition, the spectacle of the public execution has been done away with. To be honest, I am of two minds about this. Death has in many ways been glamourized to insensitivity in American society through its entertainment. Rambo, Terminator, Die Hard and similar films give us scenes of violence that may rival ancient gladitorial games, only better--they've been scripted for maximum effect. "Overkill" is deemed a cinematic virtue. The movies set the bad guy up so thoroughly that the audience is screaming for his violent demise, and of course they almost always deliver, and usually disappoint if they don't. I must admit, I still enjoy a lot of these films, though not as much as I used to.

Real death, though, is quite different. The horror of premature death is something relatively few of us experience. When society executes, part of me believes that society should witness it. Not sensationalized, not to rejoice in, but to remind us that We The People determined that death was warranted. We should be horrified, and that horror should help us commit ourselves to preventing the need for further horrors.

When the execution is held in private, we experience it second hand. Those who report what they saw cannot help but influence our own opinion of what occurred. If they're horrified, they'll tell us we should be horrified. And why.

Second-hand horror pales in comparison to the real thing.

Were I condemned to die, I think I'd prefer the firing squad. Or the guillotine. Every execution is a violent act, and (this is just my opinion) I prefer not to disguise it. That's just me. Ideally, I'd be placed at ground zero of a nuclear explosion. The worst part, I'd think, is the anticipation, regardless of how it's actually done. In my mind, the real cruelty is an extended stay on death row, spending years wondering if this appeal will be the last.

Then again, I believe in law and society, and if I were convicted of a capital crime I would likely demand to be put to death immediately. But I'm not likely to end up in that situation; those who are, are far more likely to take every advantage they can, to extend their time on this earth.


I believe in the legitimacy of the death penalty. I'd be thrilled if we lived in a society whereobody committed crimes for which the law demanded execution. But as long as we do, I feel it is appropriate to use it. It should never be a cause for celebration when society kills. And society should not look for excuses to kill. But when society is threatened by the lawlessness of citizens, it must have the means to protect itself, or it will die. When government cannot control the lawless, citizens will band together and take the law into their own hands. Consider Revolutionary France or modern-day Beirut.

As Benjamin Franklin remarked at the signing of the Declaration of Independence, "we must all hang together, or most assuredly we will all hang separately." Society works because we let it, indeed we demand it. When laws can be flaunted, when the laws routinely fail to protect those who obey them, we are all in jeopardy.

Last Updated: April 27, 1996
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