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Volume 112 >> Issue 22 : Friday, April 24, 1992

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Death Penalty Cannot Be Justified With Arguments

By Matthew H. Hersch
Opinion Editor

Earlier this week, the State of California murdered a man. With much fanfare, law enforcement
officials strapped him into an airtight torture chamber and slowly pumped in cyanide gas until he
was dead. There was once a time when I supported the death penalty, but now, especially after the
execution of Robert Harris, I can never do so again.

How can a civilized nation commit ritual murder? What possible reason could there be for the United
States to join hands with Iraq, China, Iran, and all the other tyrant states that use execution as an
instrument of justice? What possible use does the death penalty serve?

Does it deter crime? No, not really. This nation was filled with criminals when capital punishment
was commonplace.

Is it a cheap solution to the crime problem? No, not really. When one considers the cost of appeals
and the maintenance of facilities, execution is expensive.

Then why the death penalty?

The State of California, and its numerous supporters, murdered Robert Harris out of vengeance,
plain and simple. Reading of the execution in the papers, I was drawn to a picture of a pro-death
protester, marching and chanting, carrying a sign asking for "an eye for an eye." Vengeance, though,
is not justice.

When a man kills another in a fit of revenge or lust or rage, he is thrown in jail, and for good reason.
Under common law the killing of another human being is justifiable only in self-defense. At the time
of his execution, though, Robert Harris was incarcerated, unable to threaten anyone. And still the
State of California murdered him, in a manner so gruesome that it has been banned in warfare since
1925. When a citizen kills in anger it is revenge, but when the State of California does so, it is justice.

What frightens me most about capital punishment is that it assumes a perfection in the American
criminal justice system that does not exist. Even today, courts make mistakes, confessions are
coerced, and evidence is misplaced. Innocent people are convicted, only to be released, if they are
lucky, after serving 10 or 20 years in prison.

In a world where the highest punishment is imprisonment, a minimal failure rate in the justice
system is barely tolerable, especially if opportunities for appeal are widely available. If however, the
penalty for conviction is death, and opportunities for appeal disappear (as they slowly have been),
then even one over-eager prosecution or faulty defense is an unforgettable tragedy.

If we allow capital punishment, who has the right to say when it should be imposed -- when a wrong
is so heinous that it can only be righted by execution. American history is full of instances when this
very decision was twisted by unscrupulous politicians and racist judges to murder blacks and
immigrants on shaky evidence for even the slightest transgressions. When the question is one of life
and death, no one has the right to say that one man deserves to die and another doesn't, or to, as the
Supreme Court did in the case of Robert Harris, tell a condemned man that he no longer has the
right to try to prove his innocence -- that the prison warden should ignore appeals and just "get on
with it." When the framers of the Bill of Rights wrote of Americans' right to a "speedy and public
trial," they did not mean a lightning execution.

One of the most noble traditions in American culture is the belief that no matter how vile a wartime
aggressor, enemy prisoners of war must be treated as victims of upbringing and environment,
entitled to life and liberty upon the cessation of hostilities. Unfortunately, though, the same noble,
ethical standards America applies to even the most bloodthirsty foreign invaders it will not apply to
its own citizens. No matter how we try to justify it, capital punishment will never be more than
barbarism.

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