Killing the death penalty

State’s highest court rightly rules that capital punishment is fatally flawed

Updated: 10/27/07 6:34 AM

New York took a large step toward membership in the civilized world Tuesday when it effectively — and, with luck, permanently — abolished the death penalty.

It is, perhaps, too bad that the action came on a technical ruling by its highest court rather than as an expression of an enlightened popular will. But the democratic process can still ratify this correct ruling simply by failing to heed any calls to return blood vengeance to the penal code.
Neither New York nor any other jurisdiction of the United States is obligated to make its laws in accordance with what the founders called “a decent respect to the opinions of mankind.” The fact that the moral leadership on this matter has passed from the United States, if we ever had it, to the European Union enforces no duty on us — as it does on members of the EU, where abolition of capital punishment is considered a minimal standard for any nation claiming to be a fit partner for modern states.

But we should pay heed to the fact that forswearing capital punishment is increasingly seen as proof that a nation is properly governed, governed by men and women who are not so arrogant as to claim for themselves the right to decide who lives and who dies — and not so full of themselves that they think even the best-intended criminal justice system is incapable of error. There has been plenty of evidence lately that errors do occur, even in death-penalty cases.
The fact that the United States stubbornly clings to the death penalty actually inhibits our ability to protect ourselves. It seriously discourages judicial systems in other countries from cooperating with ours.

Just last week, a report released by the Innocence Project at New York’s Benjamin N. Cardozo School of Law noted that New York leads the nation in the number of wrongful convictions — 23 — that have been reversed by DNA evidence in recent years. Yet the state has also lagged its neighbors in efforts to improve the fairness of its criminal justice system through such measures as establishing an independent commission to review errors that lead to wrongful convictions, and setting higher standards for the handling and preservation of evidence.

The state has suffered not at all for the fact that it has not executed anyone since 1963. And the state’s Court of Appeals finished off the existing death penalty statute by ruling, as it had before, that it was worded in such a way as to push judges and juries toward ordering the death of dangerous convicts by dangling before them the largely unfounded fear that, unless they ordered the killer to die, he might soon again be among us. The fact that at least one judge had tried to tell a jury otherwise was not enough, the state’s top court ruled. The statute remains fatally flawed and is, finally, swept aside.

There will be calls to write another death penalty law, one that closes that loophole. But with even the conservative U.S. Supreme Court questioning whether lethal injection, the currently favored means of execution, flunks the cruel-and-unusual test, and with public opinion polls slowly but surely moving away from death and toward life sentences as the proper penalty for even the most heinous crimes, New York would be well served to leave the unavoidably capricious and inhumane death penalty in its well-deserved grave.