“Death is different.” It used to be a bumper sticker for opponents of capital punishment. It demonstrates what sets apart this moral issue from many other ones in politics. Typically such issues pit one value against another. Death is different. Supporters and opponents start with the same value – the sanctity of human life – and reach directly opposed conclusions about how to stand for it.
Opponents of the death penalty think it violates the sanctity of life (whether or not they put it quite that way). Supporters think that it vindicates life: It’s the only way to do justice when someone has cold-bloodedly murdered another person.
The state of Oklahoma revived the debate this week by executing a man who had kidnapped, beaten and shot a young woman, then watched as she was buried alive. The state was using a new mix of chemicals in its lethal injection. It was supposed to be painless, but the murderer writhed in agony and took 43 minutes to die. Opponents of the procedure said the incident showed the fundamental barbarism of capital punishment. Supporters, for the most part, are sorry it happened but sleeping soundly.
On the core issue – yes or no on capital punishment – I’m with the opponents. Better to err on the side of not taking life. The teaching of the Catholic Church, to which I belong, seems right to me: The state has the legitimate authority to execute criminals, but it should refrain if it has other means of protecting people from them. Our government almost always does.
Still, when I hear about an especially gruesome crime, like the one the Oklahoma killer committed, I can’t help rooting for the death penalty. And a lot of the arguments its opponents make are unconvincing.
Take the claims of racial bias – that we execute black killers, or the killers of white victims, at disproportionate rates. Even if those disputed claims are true, they don’t point toward abolition of the death penalty. Executing more white killers, or killers of black victims, would reduce any disparity just as well.
Abolitionists also make an implausible legal argument when they claim that the Constitution, which specifically contemplates the death penalty, somehow forbids it.
The argument that seems to have done the most to dent support for capital punishment is that innocent people might be executed. The Death Penalty Information Center’s list of 144 people who have been “exonerated” from death row since 1973 has done a lot to spread this impression.
But looking into this list is a disillusioning experience. In a minority of cases the illusions dispelled are about police and prosecutors: The wrong guy was convicted of a crime, and later evidence, often DNA evidence, proved his innocence.
In other cases, however, the dashed hope is that opponents of the death penalty would be honest. When a death-row inmate has his conviction thrown out on a technicality and the passage of time has made retrial impossible, that doesn’t mean that his original sentence was unjust or that he has been exonerated. But that’s all it takes to get on the center’s list of exonerees.
The legal system sometimes distinguishes between people released from death row because of innocence and those released for other reasons. When Jay C. Smith – a Pennsylvania high school principal sentenced to death for murdering a woman and her children for money – got his conviction overturned, he sued for wrongful imprisonment. An appeals court ruled against him, saying it had no doubt that he was actually guilty. Smith is still No. 47 on the list of the “exonerated” anyway.
Opponents of capital punishment ought to concede that in the modern era, cases of actual innocents sentenced to death are very rare – and, thanks to advances in forensic science, getting rarer. Opponents have worked for decades to establish a single case in which an innocent person may have actually been executed.
The majority of Americans who support capital punishment don’t do so because the possibility of an error has never crossed their minds. They know there’s a risk. How much risk is tolerable, assuming that capital punishment is justified in the first place, obviously isn’t a question with a precise and objective answer. But there’s no reason in principle the answer should be zero. If the death penalty is worth having, it’s worth it even if it creates some risks of wrongful executions or of the unintended infliction of pain.
I don’t think it is worth having. We shouldn’t execute people. But not because we might hurt people in the process, and not even because we might on some very rare occasion kill innocent people. We shouldn’t execute people who are unquestionably guilty because we don’t have to do it.
• Bloomberg View columnist Ramesh Ponnuru is a senior editor for National Review, where he has covered national politics for 18 years, a visiting fellow at the American Enterprise Institute and a resident fellow at the University of Chicago’s Institute of Politics.Reach him at email@example.com.