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Doubting the Death Penalty

Life and Death Decisions Mean Big Government, Too

By Timothy P. Yu

There was a time when capital punishment was a legitimate issue in national politics. The debate could be found in the mainstream media, in political journals, and in academic discourse: Did the death penalty deter? Was it applied fairly or in a racially-biased manner? Was execution just punishment, or was it barbaric?

These familiar issues were on the table at a recent Law School forum. Listening to panelists Paul Cassell, Alan Dershowitz, and Wendy Kaminer, one might have thought that the discussion was a vital one, that capital punishment was still a topic of active political discourse. In response to Dershowitz's claims that the application of the death penalty was systematically racist, Cassell quoted the latest statistics; Kaminer reassuringly asserted that the issues at hand were "empirical," not "political" questions. The terms of the debate, the panelists suggested, were factual, academic: they should be approached by study and analysis and acted on by what Cassell called "informed public opinion."

Cassell made one of the few references to the political world outside the classroom when he said that the death penalty was "mainstream" nationally, but "outside the mainstream" at Harvard. It was one of the evening's few acknowledgements that the sharp disagreements of the panelists seem absent on the political agenda and in the public mind.

The disappearance of the death penalty issue has been gradual, but in presidential politics its last gasp may be traced to the 1988 campaign. Michael Dukakis was hammered by George Bush as soft on crime; Dukakis's opposition to the death penalty became a centerpiece of that attack. The Willie Horton ads might have been defused if Dukakis had come out as a strong supporter of executions; instead, Dukakis allowed the death penalty issue to be used against him, turning in one of his worst performances by muffing a debate question about whether he would support the execution of a criminal who had murdered Dukakis's wife. Dukakis's resounding defeat was interpreted as a sign that no person aspiring to national office could afford to look weak on crime; support of the death penalty was the most straightforward--and cheapest--way to look tough.

Dukakis's struggle for self-definition during the campaign--dodging the "liberal" label left and right--prefigured the fall of death-penalty opposition from the liberal canon. Capital punishment used to be a defining issue in politics, the way abortion continues to be; rather than separating liberals from conservatives, it defines whether one is "tough on crime," something no current politician can afford not to be.

Bill Clinton reached office by learning from Dukakis's apparent mistakes. This New Democrat has shown his eagerness to out-tough the Republicans by touting his crime-fighting credentials, including his support of capital punishment. Alluding to his time as Arkansas attorney general, Clinton recently cited as an example of big, bad government the fact that federal law extended the appeals process and prevented the efficient execution of criminals. Rather than arguing against those who are prescribing capital punishment as a panacea for our woes, Clinton rushes to beat them to the switch.

With national politicians presenting a unified front, the legalization and implementation of the death penalty has been advancing everywhere. One of newly elected New York Governor George Pataki's first priorities was to reinstate the death penalty, taking the defeat of death-penalty foe Mario Cuomo as a mandate. Legislation passed under Clinton has expanded the application of the death penalty to a host of new federal crimes. Texas is ready for its eight execution this year and is on pace to carry out as many as 20 more, probably a record in recent memory. And in this year's presidential race, we should hear a single voice of support for the death penalty from all the candidates in the crowded field.

Meanwhile, opinion polls show strong public support for capital punishment. In the Law School forum, Cassell took this as the endorsement of "informed public opinion." After citing, among other things, complex statistics that supposedly illustrate the death penalty's deterent value, Cassell argued that "informed public opinion supports the death penalty for the reasons I have stated." It didn't take Kaminer's point that support drops significantly when life without parole is offered as an alternative to show that Cassell's argument was naive in the extreme. Politicians' effective use of the death penalty as a symbol for getting tough on crime shows that it, like abortion, is a hotbutton issue, one to which people respond from the gut. Dershowitz's earnest attempts to separate the system of implementation from the death penalty itself is useful for academics but probably irrelevant in the political arena.

It was Kaminer's puzzlement at the inconsistency of a public that doesn't trust its government to deliver the mail but trusts it to make life-and-death decisions that seemed most honest and appropriate to the political moment.

The rational, philosophical arguments heard in a Law School classroom have no force against the fear that dominates public and political thinking on crime. The death penalty is a deceptively easy way to fight back, a tactic of last resort at a time when all our other approaches to crime seem to have failed and violence appears epidemic. It is characteristic of our helplessness, however, that our latest strategy is to answer violence with violence.

Reopening the death penalty debate would have particular resonance in the context of the current Republican agenda in Congress. Newt Gingrich and his colleagues, mounting an all-out attack on big government, bemoan the ineffectiveness and incompetence of government bureaucracy. At the same time--with no argument from Clinton--they strive to put ever-more-powerful weapons in the hands of the criminal justice apparatus; the GOP crime bill passed by the House would speed up the execution process and give police broader search powers. Such selective surgery on governmental powers shows that the Republican crusade isn't mostly about government's fallibility, but about confirming lawmakers' power to judge, to separate the deserving from the despised.

Nietzsche writes: "As the power and self-confidence of a community increase, the penal law always becomes more moderate...mercy remains the privilege of the most powerful man." Our politicians'--and our own--acceptance of the death-penalty pacifier can only be seen as a sign of our society's weakness in the face of its ailments.

Taking a stand now against the death penalty would be an invaluable expression of humility, and of strength--an admission of the limits of our system and our judgment at a moment of easy answers and quick executions in the name of public opinion.

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