More Evidence Against the Death Penalty

April 15, 2012

The New York Times is pretty clear in its opposition to the death penalty.

Here’s the conclusion from the editorial the paper printed after Connecticut’s legislature voted to repeal the death penalty:

Any careful evaluation leads to what the American Law Institute concluded after a review of decades of executions: the system cannot be fixed. It is practically impossible to rid the legal process of biases driven by race, class and politics. The growing number of states reconsidering this barbaric system is a welcome sign. Capital punishment, by overwhelming evidence, should be abolished throughout the United States.

I’m always curious what people who support the death penalty think when they read paragraphs like this one. When faced with the evidence of obvious bias (which the editorical cites), how does one ignore it? Is it possible to tell oneself — and believe it too — that the mountain of evidence must be false?

It reminds me of children — fingers in their ears, trying to drown out parents or siblings — repeating “I’m not listening, I’m not listening, I’m not listing …” in a voice that gets increasingly shrill.

LTMC: Just to give you an idea of why the ALI’s contribution is important: the ALI is a watershed institution in the practice of law. To wit, the ALI releases periodical documents called “Restatements,” which essentially curate all of the rules and practices that define the law on given subject matter, and then a giant committee of scholars, judges, and legal professionals debate on which rules represent the best practices. They then vote to adopt or reject certain provisions based on those debates, and accepted provisions are placed into the final document, which will be known “Restatement of ______,” followed by the edition (2nd, 3rd, etc.). These Restatements are considered persuasive authority in the subject areas they cover, and are competent to cite in pleadings, memoranda, motions, briefs, and opinions.

So when the ALI makes a finding, or a statement, or what have you, it carries a lot of weight in the legal community. That doesn’t mean a state has to follow their recommendations, or that people in the legal community aren’t free to disagree with them. But if the ALI has taken a stance on a matter of law, it shifts the debate in whichever direction they’ve stepped towards.

I remain confident that the Death Penalty will one day be ruled cruel and unusual under the Eighth Amendment. As more states ban capital punishment, an increasingly compelling case will manifest for the proposition that capital punishment violates “contemporary standards of decency that define the progress of a maturing society.” That probably won’t happen on the current Supreme Court. But one can certainly hope. That much is true.

9:24pm | URL: http://tmblr.co/ZMMjnxJknIRu

(Notes: 145)