Death Penalty Musings

I think the death penalty, in some few cases, is the only possible just punishment.  But there’s this guy Jeff Gamso, whom I have known as a fellow blogger for a few years now, and damned if he hasn’t convinced me that the death penalty should be entirely abolished.

At least as of today he’s convinced me of it, anyway.

One thing that had always bothered me about the abolitionist position was that all of the arguments I had ever seen from that side were ultimately invalid.  If you’re an abolitionist, of course, the validity or invalidity of the arguments you’re making are at best of secondary concern.  If you’re actually representing the guy the state is trying to kill, that consideration probably doesn’t even enter your thoughts.

But briefly, the death penalty cannot per se be found to be “cruel and unusual” under the 8th amendment, or indeed under the constitution at all, because it’s implicitly authorized by the due process clause, which says the government can’t deprive you of life, liberty or property without due process of law, meaning that if you are provided with due process of law, well….

Another thing that really troubled me about the abolitionist position was its epistemological degeneracy, denying truth, justice, knowledge, etc.  I’m not going into that subject at length again here (here’s just one example), but suffice it to say that in my opinion if reaching a goal requires epistemological degeneracy it must be the wrong goal.  And in the legal system epistemological degeneracy is a menace that should be stamped out wherever it is found.

“Epistemological degeneracy”.  Apparently that’s a new phrase we have practically coined over here at Lawyers on Strike.

Moving on, though, past that self-congratulatory digression.

The wrongful conviction/innocence movement has finally bubbled up to the public consciousness.  It’s not very strong at this point, and people in the US are still puzzlingly punitive on virtually every level, but it has finally sunk in that the system gets it wrong a lot.

That realization can be built on.  The line of argument is that in the past we have had the death penalty because, like less civilized people we killed, or suffered killing, in contexts where it is not appropriate.  Just as the fight to the death has been banished from more civilized sporting events, so should the sentence of death be removed as an option from a more civilized criminal justice system.

After you build enough public support the constitution can be amended.  Lots of work but it’s the only way.  Trying to get courts to do it is both doomed to failure and grounded in disingenuous argumentation that damages the justice system and not a few unfortunate litigants who become victims of it.

There is no valid legal argument for abolition, and the abolitionists should face that and stop with less than honest argument just because it might convince this or that sympathetic judge to do something in this or that case, heedless of the damage it might cause.

So there it is:  my practically irrelevant opinion on how the death penalty should be abolished.  Why am I even offering my opinion on this subject this Thanksgiving weekend?  Cause I promised Jeff Gamso I would.

Happy thanksgiving, everyone, in case we don’t get another chance to say that before the big event.


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