BlogWonks

Back and forth, back and forth. We are hypnotized repeatedly as the same ideas flow from one side to the other, from having something, to not having it, to having it all over again. Lots of things are like this. Right now, the death penalty in New York fits that description. Back and forth with the nation, and now on its own to make a choice one more time.

The death penalty in the United States has had a pretty long history and some pretty good speakers have had things to say about it on both sides. It was something that the British started for us (1608 execution of Capt. George Kendal) and we had to work out for ourselves after they left. From that period on in many different ways and reasons we had the death penalty as a choice in retributive law.

It wasn’t till the first half of the twentieth century that real reform in prisons started. This didn’t mean sanity by any stretch of the imagination. Some states had the death penalty, others didn’t. Trying to be more humane, at one point they introduced cyanide and attempted to gas an inmate, a Mr. Gee Jon, while he slept in his bunk. The real changes in use though came in the 1920s thru the 1940s when the argument was being vigorously put forth for the need in having the death penalty as a deterent and other reasons. The 1930s had more executions than any other decade, with an average of 167 per year.

After a while of having it, in the 1950s it started to slip the other way. America looked out to other countries and saw that they were abandoning the practice, and the number of people executed dropped. In the 1940s there were 1,289 executions, in the 1950s there were 715.

Before the 60s, the 5th, 8th, and 14th amendments were used to show that the death penalty was permissible. This of course implies that the founding fathers intended that the state that they mistrusted enough to make a bill of rights to be protected from was also the state that should have the power of execution.

Then the idea that it was cruel and unusual punishment was brought to the fore. Thereby possibly restoring faith in the protections of the 8th amendment, an amendment once used to justify its existence. The idea here was that the United States had evolved past a certain point and had reached a point that a new “standard of decency” had been reached. This is an interesting concept in considering the nobility of recognizing a positive and forward growth. If this is so, then what does that say about us now that we no longer reach for such a standard?

This now opened the flood gates in a way to a whole bunch of Supreme Court tunings. It did not however stop the death penalty. In a way, the Supreme Court was saying that we had not reached that “standard of decency” in which we won’t execute someone. It wasn’t until 1972 in the Furman case that they created the well known concept that the punishment had to fit the crime, or the punishment would be considered “cruel and unusual”. The key here was that if the punishment was too severe, arbitrary, it offended society, or if it was less effective than another punishment, then it was to be considered “cruel and unusual”.

However Furman left a kind of hole. While destroying the penalty in the 40 states and making the swing go one way, each state was now able to attempt to rewrite their laws in an effort to address the situation. A kind of have your cake and eat it too situation. Reforms were made. They separated the guilt determination and the sentencing into two phases, and things like proportionality review were taken up. The Supreme Court liked the changes and in 1977, 10 years after the moratorium started, Gary Gilmore was executed by firing squad, and states that wanted the death penalty started to bring it back. This didn’t mean that a lot of tuning wasn’t going into it. Limitations were being drawn up all the time.

Skipping over a whole lot of history we fast forward to New York in 2004 in the people v. Stephen LaValle, the death penalty law was again declared unconstitutional and the laws once again slide over (for New York at least) to the other side. Again New York has to reconsider reconsidering the death penalty. Technically they have the opportunity to determine whether they have reached a “standard of decency”, even if the rest of the United States had not.

Knowing all this, it hasn’t been much of a surprise the way the story has played out in this decade. Given that we no longer have rational politics but live in and under fear politics, it was only a given till some incident would happen and that would become the new poster child for the death penalty in New York. Eleven cops have been shot since June, several funerals have occurred in recent days. Police have appeared in ads promoting the idea that the death penalty will deter more officers from being shot. Everyone is out for blood. Even the execution of “Tookie” Williams was thrown into the argument. Not that executing him has changed anything other than adding a vacancy.

However, reading through the articles I am finding them short on argument and long on emotionally charged messages or just assertions. In general the “argument” goes like this. Other states have the death penalty. New York officers are being shot, some have died. Some crimes deserve the death penalty. It’s a fit punishment even if it does not deter. We need it, talk to someone and let them know what I told you to say.

One columnist from the NY daily news said:

“…the death penalty is an appropriate punishment for some crimes. It’s not about blood lust or revenge. Nor do I believe the possibility of a sanitized execution deters anyone who would otherwise pull the trigger. I simply believe that some crimes are so heinous that those fairly convicted must pay the ultimate price.”

Not to be a party poop, but this is not much of an argument for anything. It also shows where our minds are at about this issue. It begs back to the issue of what is the purpose of law and the intents of our founding fathers (as mentioned above). What is the purpose of law and our prison system? Do we want perfect execution of the law? (in thought maybe, in practice we would be miserable). Do we imprison someone to make us feel good, or to teach them a lesson, or both?

Well. The death penalty can’t be about teaching them a lesson. One must live after a lesson in order for it to be corrective. Lessons taught without regard to outcome are not for the student’s pleasure (or pain), they are for the teachers pleasure (of pain).

The fact that it’s a punishment leads nowhere, all that it says is that it’s a consequence, made by man, for having certain acts assigned to you. Note that I didn’t say for having done those acts. The system only presumes guilt upon a certain amount of evidence has been presented; the reality of what that evidence represents is neither here nor there. An innocent person can have acts assigned to them as well as a guilty person.

As noted above, many admit that it does not deter. In fact, not being able to clearly tell whether an act will raise to the level of execution negates any deterrent effect. The criminal knows he will be taken away for being in a stolen car, the one that commits murder thinks that they will be out in seven to ten, not that they will be executed. So its not a deterent. Which then implies that life imprisonment without parole, which is easier to apply to more offenses, would then be MORE of a deterrent. This being so, it satisfies the criteria for cruel and unusual punishment.

Then comes the issue of fairly convicted. What about the people that are convicted that are found innocent later? Does the same logic do justice to those that are executed wrongly by the state? For what noble cause did they die for? Granted, its not too noble dying for a crime you didn’t commit, but amazingly so, it’s even LESS noble to die when there is little real justification for the penalty other than “just because”. If we aren’t doing it to teach, deter, recompense, then what are those good reasons that on some level make it understandable?

Why? How can we sit there and say “it’s not to teach the criminal”, “its also not to keep others from committing the act”, “it’s not retributive, sadistic, for pleasure, or blood”. It’s just something we do when we think something is bad enough. Is that really good enough?

Riding home on the subway tonight I was reconsidering, reconsidering the death penalty here in New York. The funny thing is that I realized that I didn’t have to argue that the death penalty was wrong. No one was really arguing that it was morally right. They were arguing only that the state should have the ability. We think when a crime has crossed some arbitrary line, that it was right to do. In the absence of that proof that it was the right thing for good reason, refutation wasn’t necessary. Without a reason it was right, I no longer had to know why it was wrong. All I had to know was they haven’t really given a good reason why it’s right over other forms of punishment that we can choose. I wonder how many other people might make that realization, and how many might actually think that now is the time to declare that we have reached a new standard. How would we know we were ready to take that step into the future? We became ready the moment we realize that we need not find more complex reasons to kill, and were willing to accept a different standard of conduct.

Tomorrow I will buy the newspaper all over again. In a few days just like tomorrow they will decide, and I will open the paper and find out what our standard of conduct will be till the next oscillation comes and gives us pause once again. Only then it would be to reconsider reconsidering the reconsidered death penalty.

Those wishing to know more about the death penalty and its history can go to the following sites. These are by no means the final word, and other sites should be sought out for a balanced view of the issues.

University of Alaska Anchorage

http://justice.uaa.alaska.edu/death/history.html

For information world wide…

http://www.deathpenaltyinfo.org/

…and specifically the US

http://www.deathpenaltyinfo.org/article.php?scid=15&did=410

The case that put the death penalty on hold again in NY

http://www.deathpenaltyinfo.org/article.php?scid=38&did=1066