I am probably going to vote “no” on the Nov. 7 advisory referendum on the death penalty. But I won’t be doing that because I am so certain I oppose the idea.
Rather, I likely will vote it down because I like the concept that (I believe) the U.S. Supreme Court once articulated about how the U.S. states are “the laboratory of democracy.” Most of the time, it is good that states should be free to pursue differing policies on some issues so we can see how such policies do or do not work; and I would like Wisconsin to remain one of the no-death-penalty states for that reason.
But about the death penalty itself, I feel very ambivalent. And I believe I share that unease with Jewish tradition; and I wonder if that long-standing attitude may point to a way of compromising the issue.
Jewish tradition, as The Chronicle has reported (May 19 issue), is divided over the death penalty. On the one hand, Torah law demands many death penalties, not just for murder (Genesis 9:6) but also for what seem to us to be lesser offenses like working on the Sabbath (Exodus 30:15).
However, the Torah demands that in order to impose a death penalty, there must be two witnesses to the offense (Deuteronomy 17:6). And the rabbis of the Talmud surrounded the death penalty with so many restrictions — the witnesses must warn the perpetrator beforehand; no indirect evidence is admissible (including fingerprints, DNA or other “C.S.I.”-type forensics) — that a death penalty supposedly was almost impossible to obtain from a Jewish religious court.
Reason and evidence
I do believe today’s death penalty opponents have much reason and evidence on their side. The Milwaukee Journal Sentinel ran an editorial this past Sunday recommending a “no” vote on the referendum, and it set down some of these arguments well.
Yes, the chance always exists that humans will err and execute an innocent person. Yes, the death penalty is applied unfairly and inconsistently to people of different races and social-economic classes.
Yes, real evidence exists that the death penalty does not deter other criminals, that states having the penalty often have higher rates of capital crimes than states that don’t. Yes, imposing this penalty does seem to have a coarsening effect on the social-political atmosphere, encouraging the dehumanizing of other people.
I will even add an anti-death penalty argument that I haven’t heard anyone else present. This country is based on the idea of limiting government powers as a hedge against tyranny; that is a major reason why we have so many levels and branches of governments, local to federal; they are supposed to check-and-balance each other.
We know that criminal governments (Nazi Germany, Stalin’s Soviet Union, etc.) have the demonstrated capacity to murder more people in shorter lengths of time than any number of individual serial killers. Therefore, it seems logical that the power to kill citizens, even for the sake of supposed justice, should never be granted to any governments.
Ah, but what about justice? This is where I come up against some of the arguments in favor of the death penalty, and they seem equally cogent.
For some crimes, anything less than death just doesn’t feel like justice to me. And there are people in every society for whom the socialization process, for whatever reasons, has failed almost completely; who are so conscienceless, selfish, ruthless, utterly lacking in any consideration for other people’s feelings or well-being, that they are like social cancer cells; and nobody is safe from them until they are dead.
The Jewish conservative columnist Dennis Prager in his November 2005 column “Opponents of the death penalty have blood on their hands” cited an illustrative case. He stated that a California man, sentenced to life in prison in the 1970s for one murder, from jail was able to engineer three more murders.
Prager sometimes sinks to demagoguery, so one ought not to trust his accounts automatically. But stipulating for now that his presentation of this case is accurate, what penalty short of death could possibly constitute justice for these crimes and protect us from this man? Three more life sentences?
I do not agree with traditional Judaism’s prohibition of forensic evidence, but I wonder if applying its fundamental attitude may point to a compromise.
Maybe we should have the death penalty on the books as a tool and as a statement that justice for some crimes demands it. But then let us surround application of the penalty with so many procedural and evidentiary hurdles that it would seldom be imposed. It would thus be used only for the worst of the worst crimes and people, and only when the evidence of guilt is as close to certainty as humanly possible.
Like all compromises, this obviously won’t perfectly satisfy both sides of the divide. But I think it might offer both of them something toward making a criminal justice system with which both could live.
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