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Tuesday, April 30, 2013

THE DEATH PENALTY, BUT SPARINGLY [ARTICLE ON THE DEATH PENALTY OF THE WEEK ~ SUNDAY 28 APRIL 2013 TO SATURDAY 4 MAY 2013]


NOTICE: The following article is written by the author itself and not by me, I am not trying to violate their copyright. I will give some information on them. On this date, 30 April 1945, Adolf Hitler committed suicide by gunshot on 30 April 1945 in his Führerbunker in Berlin. His wife Eva (née Braun) committed suicide with him by ingesting cyanide. In order to remember that historical date when an evil man was demolished for good, I will post the article on the death penalty from American lawyer, Bruce Fein.

ARTICLE TITLE: The Death Penalty, but Sparingly
DATE: 1 July 2001
AUTHOR: Bruce Fein
AUTHOR INFORMATION: Bruce Fein is a lawyer in the United States who specializes in constitutional and international law. Fein has written numerous articles on constitutional issues for The Washington Times, Slate.com, The New York Times, Legal Times, and is active on the issues of civil liberties. He has also worked for the American Enterprise Institute and the Heritage Foundation, both conservative think tanks, as an analyst and commentator. Fein is a principal in a government affairs and public relations firm, The Lichfield Group, in Washington, D.C. He is also a resident scholar at the Turkish Coalition of America.


A headline in the U.S. Army newspaper Stars and Stripes announcing Hitler's death.


Bruce Fein
Death penalty abolitionists are unpersuasive. Whoever shed a tear over the trial and execution of Adolph Eichmann by Israel for his unspeakable complicity in the Holocaust? Ditto for Japanese arch villain Hideko Tojo for Pearl Harbor, the Rape of Nanking, the Bataan Death March, and gruesome bacteriological experimentation on U.S. prisoners of war. Or who would balk at capital punishment for an American who lethally poisoned hundreds of thousands by resorting to biological or chemical contamination of the nation's water supplies?

Some crimes betray a reptilian immorality and beastliness that only the supreme penalty of death can adequately answer. Anything less would trivialize the preciousness of humanity. This proposition cannot be proven with the certitude of Euclidean geometry. It is not a matter of doing sums. Instead, the axiom rests on intuition, instinct, and a moral sensitivity that palpitates in the hearts of the vast majority of mankind. Indeed, could any capital punishment abolitionist stand at the chilling Auschwitz cemetery; look in the eyes of a Holocaust survivor whose mother, father, and siblings had died in Hitler's cyanide chambers; and preach that the death penalty for Der Fuhrer would have been too draconian for the genocide of six million? The death penalty is not unique in summoning unprovable moral assertions in its defense. The criminal law is dominated by common moral hunches and sentiments that elude empirical proof. Theft is punished, although a right to private property is debatable. Proudhon insisted that "property is theft," whereas Rousseau sermonized, "The first man who, having fenced in a piece of land, said, 'This is mine,' and found people naive enough to believe him, that man was the true founder of civil society."

The crimes of rape, torture, treason, kidnapping, murder, larceny, and perjury pivot on a moral code that escapes apodictic proof by expert testimony or otherwise. But communities would plunge into anarchy-a state of nature where life is poor, brutish, nasty, and short, according to Hobbes-if they could not act on moral assumptions less certain than that the sun will rise in the east and set in the west.

Relative Arguments
Abolitionists may contend that the death penalty is inherently immoral because governments should never take human life, no matter what the provocation. But that is an article of faith, not of fact, just like the opposite position held by abolitionist detractors, including myself. All of the instrumental or complementary reasons chorused by anti-death penalty supporters do not withstand scrutiny.

Capital punishment is not invariably degrading or humiliating. A nontrivial number of death penalty inmates covet their punishments and have thwarted legal efforts to challenge their sentences. To believe they would invite degradation or humiliation is to deny human nature. Death penalty crimes are not uniformly vulnerable to error in proving guilt. Tens of millions witnessed Jack Ruby's assassination of Lee Harvey Oswald on television, and companion gruesome murders have been equally beyond dispute. It might be said that since capital punishment is irrevocable, an additional safeguard against convicting the innocent is justified: namely, proof beyond a slight doubt, not just beyond a reasonable doubt. But that contention militates in favor of reform, not abolition.

Abolitionists might deplore the inferior legal talents and assiduity of defense counsel for indigents in capital cases. The reproach, however, argues in favor of upgrading indigent defense, a project underway in several states-Illinois and Texas are prime examples-and the U.S. Congress. It does not demonstrate that capital punishment is intrinsically wrong or barbaric.

It has been urged that the death penalty disproportionately impacts minorities. Under the U.S. Supreme Court's 1986 decision in Batson v. Kentucky, 476 U.S. 79 (1986), however, prospective jurors may not be struck because of race, and intentional discrimination in selecting death penalty candidates by prosecutors would violate the Fourteenth Amendment. The next year, in McCleskey v. Kemp, 481 U.S. 279 (1987), the Court denied that capital punishment statistics assembled in Georgia proved that minority defendants were treated more harshly because of race than their white counterparts in capital cases . In any event, the remedy for a racially discriminatory death penalty is to end the racism, not the punishment. 

Contrary to abolitionist arguments, evolving standards of decency do not condemn capital punishment. In the United States, a plurality of Americans opposed the death penalty in 1966. After the crime rate spiraled, that sentiment galloped into a commanding majority for capital punishment. In the wake of the Supreme Court's 1972 decision in Furman v. Georgia, 408 U.S. 238 (1972), nullifying all capital punishment laws as then applied without certain procedural safeguards, a decisive majority of thirty-eight state legislatures responded with revamped death penalty statutes that channeled sentencing discretion. Sister federal death penalty statutes were also enacted. In other words, evolving moral standards in the United States have not been a one-way street when capital punishment has been the issue; the standards have shifted both in favor of and against the death penalty, not remained fixed like the North Star. The Philippines similarly ended the death penalty under President Cory Acquino but then opted for restoration because of a meteoric jump in crime, including death for Imelda Marcos-like corruption. Currently, the Philippines has a moratorium on executions in place. 

At present, when crime rates are tumbling, a dwindling majority of Americans support the death penalty. That majority might further fall to a minority. But history shows that death penalty proponents could again capture the majority viewpoint. In any event, the evolving standards of decency argument works more against than in support of abolitionists.

Associate Justice William Brennan insisted in his concurring opinion in Furman that the death penalty degrades human dignity because it implicates the state in the deliberate extinguishment of human life. But the ipse dixit is unconvincing. The death penalty honors human dignity by treating the defendant as a free moral actor able to control his own destiny for good or for ill; it does not treat him as an animal with no moral sense, and thus subject even to butchery to satiate human gluttony. Moreover, capital punishment celebrates the dignity of the humans whose lives were ended by the defendant's predation. Nothing less would adequately give expression to the sacredness of innocent life.

Other Government Action Causing Death
Conscription and war, like the death penalty, also involve government action that knowingly will precipitate the extinguishment of human life. And the dead conscripts, unlike a capital criminal, will be free of any legal or moral guilt. Indeed, they may deserve and enjoy commemoration and burial on hallowed ground, like Civil War Union soldiers who gave that last full measure of devotion for a new birth of freedom.

Unlike with the death penalty, of course, the government does not know in advance the identities of its war casualties. But it customarily knows many of its citizens will perish, whether at Gettysburg, Iwo Jima, or the Battle of the Bulge. If government participation in the extinguishment of human life is inherently an immoral degradation of human dignity, then pacifism must also be advocated. That means playing spectator to an impending Holocaust, a Pol Pot, or Rwandan genocide; a nuclear, biological, or chemical attack on citizens of the United States; or any other evil of nauseating proportions. Indeed, absolute pacifism would require the U.S. government to forgo conscription and war to defend our fundamental human rights and liberties from extinction by a foreign aggressor. But such pusillanimity and consignment of hundreds of millions to the chains of despotism to avoid implication in the killing of humans seems itself a disgusting affront to human dignity. Some things are worth killing for, including a free mind and a free country. That is why our war heroes who rained death on the enemy are lionized, not despised.

The death penalty is first cousin to conscription and war. In both cases, the government exercises coercion and undertakes action that it knows will end human life. In the former, the justification is retribution commensurate with the sacredness of the lives taken by the defendants in cold blood. In the latter, the government sacrifices the lives of its citizens to protect our constitutional dispensation from domestic or foreign enemies or for related reasons of urgent national security.

In sum, the abolitionist proposition that government implication in the extinguishment of human life is, simpliciter, an unmitigated moral evil that should never be tolerated is untenable unless the anti-death penalty crusaders also embrace absolute pacifism. But the latter, history has proved (think of Munich in 1938) gives birth to wickedness and horrors on a scale shocking to any person with a crumb of humanity. Abolitionists have assembled no convincing moral argument to distinguish the death penalty for retribution from conscription and war in the name of human freedom and dignity. Yet they seem to accept the latter while savaging the former.

Justice Marshall's Folly
Justice Thurgood Marshall, in his Furman concurrence, staunchly maintained that the death penalty is "morally unacceptable to the people of the United States at this time in their history." That assertion, however, as Bentham said of the common law, is nonsense on stilts. Justice Marshall conceded that the majority, if polled, would favor capital punishment. But, according to the Platonic guardian, its views were bogus because uninformed. If Americans attended the likes of Harvard Law School to master death penalty gospel, like King Arthur's tutelage by Merlin, then they would be convinced of capital punishment's iniquity. Furthermore, said the jurist: "I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance [i.e., retribution]. Thus, I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral, and therefore unconstitutional."

Marshall's idea that the law should echo what citizens would believe if properly indoctrinated by an elite-an earmark of tyranny from time immemorial-is too outlandish to need refutation among a people who celebrate government of the people, by the people, and for the people. It belongs in George Orwell's 1984.

The death penalty is an awesome punishment. It should be applied sparingly to the most egregious and shocking crimes committed by the most unrepentant and callous offenders. A few procedural safeguards, as noted, should be added to ensure against convicting the innocent. But the punishment itself should be retained as a community affirmation that to treasure life occasionally necessitates the extinguishment of the lives of its most abominable enemies.

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