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Date:         Thu, 8 Oct 1992 13:21:32 -0500
From:         "VALENTINE M. SMITH" <CDELL@UMKCVAX1.BITNET>
Subject:      On the death penalty once again ...
Comments: To: val-l@ucf1vm.bitnet, jwales@iubvm.bitnet, olsenj@stolaf.edu,
              shlyakhter@huhepl.harvard.edu, kousen@rayleigh.res.utc.com,
              klur@maristb.bitnet

My friend Jamie on POLITICS and I have disagreed on this before, and
I really should not launch this topic again, but a thought had
crossed my mind about the "what constitutes a crime?" question, and
what application does using the death penalty to stop or deter crime
have.

Last week, this fellow came to my house to repair windows, and, of
course, I started a political argument with him after he said that
the paramount goal in the US was "to restore order," even if that
meant deeper application of the death penalty and abridgement of the
Bill of Rights to accomplish same. He went on to articulate (shades
of Stalin! and modern day Russia's rightist yearnings) that we needed
a dictatorship here.

The argumenmt went on a long time, and I got mad, but one of the
things he said reverberated back into this discussion about the death
penalty, and raises a point Robert Hughes tried to raise fairly
successfully in his book _The Fatal Shore. In the late 1700s in Great
Britain, some 200 behaviors were defined as death penalty crimes,
from petit theft up to murder. THIS CLIMATE DID NOT DETER CRIME!!!

In fact, the transport system to Australia was started because of
of the practioners of justice's unwillingness to sentence children to
death for stealing loaves of bread, or small coins.

However, where I disagreed with Jamie last year in this discussion
was that I can rationalize the use of the death penalty, barely and
rarely. I believe some individuals are not rehabilitable, and that
basically four crimes CAN deserve such a penalty. Armed robbery
where victims are hurt or killed, rape "in the first degree," (I know
it is broken out further than that, but at least that) torture or
advanced child abuse wherein the victim is permanently affected, and
murder, in whatever guise it takes. However, I cannot embrace the
idea that ALL such crimes merit the death penalty, though most of the
perpetrators ARE repeat offenders, and I believe a repeater is one
of those I call "unredeemable."

It has to be done case by case, and when a Bundy appears, I believe
that "order" does require that the state take the life of such
criminals, as they have no intention of stopping the commission of
such crimes. Life in prison may be more heinous, especially with no
hope of parole, because then there are NO sanctions save a death
penalty to stop such a criminal from repeating its crime INSIDE
PRISON! But, I CAN sleep at night knowing that a Bundy is no longer
with us due to state action. The Constitution states that such rights
are within the province of the states to exercise, though not
directly addressing the punishment aspect save via the "cruel and
unusual" language.

Now, whether such laws are applied fairly is another issue. Who is to
judge? I say juries. But, laws like the Texas one being appealed now
about have to file new evidence motions within thirty days of
sentence is patently unfair. If we are going to take on the moral
imperative of killing citizens who commit the above crimes, then the
playing field HAS to be fair, for it is THEIR life at stake, and
mistakes are costly. I'm willing to see some appeal time lapse if the
end result is either execution of the sentence "in reasonable time"
or acquittal of the alleged criminal because new evidence is
presented. I do not agree with reversing "guilty" findings on
technicalities that are NOT evidence-related, unless the judge is
proven to have conducted the trial unfairly.

We lean to harshness these days, and think that will solve the crime
problem. I disagree, as I said to the workman - you can accomplish
more with carrots than sticks. Decriminalizing a chunk of what is
prohibited today, amnesty for those "criminals" would free up much
prison space for those who commit these crimes, and others less
heinous but also deemed necessary to punish, like burglary or stock
theft. I also believe white collar crime needs deeper levels of
"punishment" than large fines and suspended sentences, but that's
another debate.

We DO use prison for "punishment," not rehabilitation, anyone who
tells you different doesn't understand how that system "really"
works. We are much into the |eye-for-an-eye" in American justice, and
in many other places in the world this is also true. I no longer
believe we use prisons to make the price be paid for a crime
committed, and then one goes back to society untrammelled after
"paying his or her debt." We mark, or prison does, these people for
life. How many "criminals," and how many "crimes" do we want to have?
The spiral goes ever upward, yet crime is worse than ever. It says to
me the system is fundementally flawed, and that much of what we CALL
"crime," really is only a minority's brand of morality imposed on the
rest of us. Use of the death penalty is one component of that flawed
system, and its use is flawed also, I am the first to admit and
recognize. But, the problem goes to the core of what we define as
"crime," and in the current punative mindset of legislatures and
Congress, more harsh law is probably forthcoming. But, historically,
and I point to the British and Roman models, more law and more
imposition of penalties do not work over the long haul.

Lastly, I do not have a comprehensive solution to this deeply
convoluted question of criminal justice, but I conclude "draconian"
is not necessarily a good solution process. We may need the death
penalty, but it IS an odious choice, and those who commit those
crimes know many of us are reluctant to take their life in a trial
situation. Death is a very ultimate penalty, and we SHOULD be
reluctant to use such a sanction. But, it won't go away because we
don't like it, any more than crime will go away. Just a few scattered
thoughts on the issue, VMS