Sunday, 13 January 2008

State should drop the death penalty

Waldo Proffitt


State should drop the death penalty
Last week James Kilpatrick wrote a column about the death penalty. "As a mellowing Whig," he said, "I kind of oppose it." As a certified liberal, I also oppose it. But not for the usual reasons.

The death penalty merits attention from columnists because the Supreme Court has just heard oral arguments in the case of Baze v. Rees in which the critical question is whether executions as carried out by the state of Kentucky violate the constitutional prohibition of cruel and unusual punishment.

Of the 36 states where the death penalty can be imposed, 35, including Florida, use the same techniques as Kentucky -- three stage lethal injection. The first drug is a sedative; the second is a paralytic to immobilize the condemned prisoner; and the third stops the heartbeat.

The suit from Kentucky, as well as similar suits in the judicial pipeline from several other states, allege that the second drug, unless expertly administered, produces intense and extended pain -- sufficient to violate the Eighth Amendment.

Based on what I have read about the questions asked by Justices in oral arguments, it seems unlikely the Supreme Court will do anything beyond, perhaps, advising Kentucky and other states to be more careful how they administer the injection cocktail. There is nothing to indicate that a majority of this court feels any need to go beyond technicalities or to deal with any of the serious questions about the death penalty which have led to growing doubts about its retention, led New Jersey to abandon it, and led other states to consider following New Jersey.

Some opponents of the death penalty argue that it is, in this country, in this time, inherently cruel and unusual punishment. They say that it is an affront to humanity for a state to intentionally take a life. They say that most of the advanced nations of the world have abandoned capital punishment, and that keeping it demeans our highest ideals.

Well, that argument worries me. It makes me uncomfortable about the death penalty. But I do not find it totally persuasive. I think there are crimes so heinous and so destructive that, once their perpetrators are proved guilty beyond any possible doubt, they deserve the worst punishment we can inflict.

But, that punishment is not the death penalty.

Summon up in your mind the worst crime you can imagine, and assume the perpetrator has been positively identified, tried, convicted, and the court is now considering the matter of punishment.

I am one citizen who does not want to see him executed. I am not worried that he (I use the generic masculine) might suffer some pain, or much pain, before the lethal injection takes effect.

I am concerned that he will get off far too lightly. He has committed unspeakably heinous crimes, for which his punishment will be only a slight prick in the arm, followed by total oblivion.

There is a more fitting punishment -- life in prison. Life behind bars, with no chance of getting out. Ever. No hope.

Such a sentence achieves the desired goal of cutting off the prisoner from society. With tight security, we don't have to worry that the prisoner will hurt someone else. We don't have to try to rehabilitate him for life after prison. There are fates worse than death. This is one of them, and it can be imposed by a judge and jury.

Replacing the death penalty with life in prison without parole has a couple of other advantages.

I think that in most jurisdictions in most states, the criminal justice system works pretty well. The widespread use of public defenders, along with the DNA evidence now left by many violent crimes, not to mention the growing political influence of minorities, make it less and less likely we will convict innocent persons. But, it has happened. It will happen again. When it does, if exonerating evidence comes to light, we could do more than just say "Oops!!"

And, the fact that we would be able in some degree to compensate for a mistake in the working of the judicial system, would, I think, take a lot of pressure off juries and enable them to do their work without undue fear that their verdict might lead to a tragic, irreversible result.

This Supreme Court might not see its way clear to deal with serious death penalty issues. But the Legislature and the citizens of Florida sure could.

Waldo Proffitt is the former editor of the Herald-Tribune.

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