"Abolishing capital punishment in a kind of despair over its fallibility would ... tell the public that our laws and courts and juries are fundamentally incapable of delivering what most Americans consider genuine justice. It could encourage a more cynical and utilitarian view of why police forces and prisons exist, and what moral standards we should hold them to. And while it would put an end to wrongful executions, it might well lead to more overall injustice."
Perhaps the Times published this piece so it could respond to it obliquely with an excellent editorial it published two days later which stated: "The death penalty is grotesque and immoral and should be repealed."
Lest some find the paragraph I quote above unclear, Mr. Douthat appears to argue that rather than abolish the death penalty because we can't apply it fairly, we should take greater pains to apply it and other criminal penalties in a more just fashion.
I find Mr. Douthat's logic strained, even perverse. Is he saying it is worth risking a few unjust executions in order to improve the public's perception of our criminal justice system?
But in a way Mr. Douthat's analysis is not an unreasonable response to the tactics of much of the domestic anti-capital punishment movement, which is engaged primarily in case-by-case demonstrations that we might execute innocent defendants. This strategy is being applied on a state-by-state basis in those locales where anti-death penalty sentiment is strongest. Abolitionists employing these tactics supplement their arguments with proof of the system's unfairness and excessive cost.
I applaud any effort that reduces the number of executions and this strategy appears to be making some headway. It fails, however, to address the core problems of the death penalty and our criminal justice system. Even if we could guarantee without bias that the state would execute only those guilty of premeditated killing, these executions would still be wrong.
The initial words of Article 3 of the Universal Declaration of Human Rights as adopted by the United Nations, which is the first to enumerate a specific right, read: "Everyone has the right to life"." Simply put, the death penalty is a human rights abuse. This makes sense because if our government has the right to extinguish our lives, it has the power to deny us access to every other right listed in the Declaration. The rights set forth in Articles 4 through 30 won't do you much good if you aren't alive to enjoy them. While the domestic anti-capital punishment movement is reluctant to make this argument because most Americans don't agree with it, it is the one we must ultimately make and win if we wish to permanently rid our nation of the death penalty.
We must also consider the larger context capital punishment inhabits. Our system disproportionately imprisons far too many people for far too long. Mr. Douthat exposed a basic truth, although he backed into it. Race and class discrimination permeates our entire criminal justice system. Mr. Douthat poses this as an either/or proposition. Either we eliminate capital punishment to avoid a wrongful execution or we reform our system to make it fairer. Instead, we must do both, although I think the word "reform" understates what is needed. Commuting Troy Davis' death sentence - or that of any other wrongfully convicted death row defendant - to life imprisonment without the possibility of parole is not a just solution, but it is a result many in the mainstream anti-death penalty movement in our country appear to be promoting.
Let us use Troy Davis's wrongful execution as a rallying cry to reassert our common humanity by demanding that our government stop its cold-blooded extermination of our fellow human beings. But we must also demand the end of the wholesale warehousing of over two million people in the degrading conditions of our bloated prison industrial complex.