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Assemblyman Donald P. Wagner

The Assault on the Death Penalty

Democrats have mounted an effort in Sacramento to abolish the death penalty. Critics of capital punishment say it is too expensive – allegedly up to $184 million per year – to justify sentencing miscreants to death. Thus, a bill has been introduced calling for a referendum abolishing capital punishment in favor of life imprisonment. Soon it will be on the floor for a final vote where I expect the ruling Democrats to rubber stamp it.

Death penalty critics are right in both of their major challenges to keeping it on the books: it is too costly and too haphazardly implemented. However, those critics are wrong to say that the solution therefore is its elimination. We can fix both of those problems; indeed we have a moral obligation to fix those problems rather than abandon capital punishment.

Preliminarily, it is important to note that there are no significant legal challenges to continuance of the death penalty. Anti-death penalty activists often trot out the hoary old charge that the death penalty is cruel and unusual punishment in violation of the United States Constitution. This argument is nonsense. The Constitution explicitly permits capital punishment in at least three separate places. That is three more explicit textual references than one can find in the Constitution to abortion, Miranda warnings, “one man, one vote” and “separation of church and state” combined. The death penalty is expressly allowed; those other things are never once mentioned.

But what about the cost and inconsistent application arguments?

As to costs, there is simply no reason for capital punishment to cost what it does. Federal habeas corpus laws have been fine tuned by the United States Supreme Court in the last several years to reduce costs. Nothing stops California from similarly making significant changes to our death penalty jurisprudence in order to reign in costs. For example, one easy change would be to end the automatic appeal to the California Supreme Court of all death penalty cases. If we give our Supreme Court the right others have to hear only the close cases, we could likely realize major cost savings with no sacrifice to justice.

As to the haphazard implementation, that too is something we can fix. Other states, with more of an institutional will to carry out the death penalty, manage to do so much less randomly than does California. Moreover, some of the changes that reduce costs, for example streamlining the process and eliminating the automatic Supreme Court appeal, will have the benefit of adding more certainty to the system. But, ultimately, even if some randomness remains as to exactly which of the worst of the worst offenders actually has a death sentence imposed, that is not reason alone to eliminate capital punishment as an option for judges and juries in the most egregious of cases.

But not only do the abolitionists’ arguments ultimately fall flat, California should keep the death penalty because it is the moral thing to do. Now ironically, opponents claim the moral high ground in the death penalty debate but actually, it is precisely those opponents who are morally confused. Indeed, we hear often from them the hoary old rhetoric that society cannot say killing is wrong by killing people. But that is sophistry. It is only true if all killing is equal. Clearly, not all killing is equal. A fair and just society permits the intentional killing of human beings in many circumstances. For example, we permit killing in just wars, in self-defense, and in the defense of others; we authorize agents of the government, our police and military most obviously, to kill on our behalf, in our name, and to protect us.

The act of killing is not itself the problem and not unquestionably wrong in all cases. Society’s real objection is not to killing, but to unjustified killing, to murder. And capital punishment, imposed after a fair trial adhering to the rule of law and only on the most depraved among us, is not murder. In fact, capital punishment says better than anything else we can do as a society that one act – murder – and that one act alone, is so heinous as to cause a forfeit of the killer’s own life.

Capital punishment is not a policy of retribution, revenge, or a throw back to the supposedly barbaric days of “an eye for an eye.” Actually, the principle of “an eye for an eye” – meaning that punishment must be proportional (you don’t get an eye for a finger) and imposed irrespective of class (the eye of a poor man is worth no less than the eye of a rich man) – is perhaps the single greatest step towards civilization ever taken and a principle we abandon at risk to that civilization.

Finally, there is no doubt the possibility exists of an innocent person being put to death. It is incumbent upon the state to do everything in its power to avoid that tragedy. But any punishment is susceptible to mistake. And the virtually infinitesimal hypothetical threat to any innocent person of mistaken execution is dwarfed by the certainty that (1) at least some murderers spared by the misguided abolitionists will kill again and (2) some criminals already facing life imprisonment will kill witnesses as that will lessen the possibility of getting caught without increasing the penalty.

California would make a mistake if it abandoned capital punishment. The imposition is costly and haphazard. But we should fix those problems rather than retreat from the justice of capital punishment.