Russ Douthat of the New York Times has a badly argued post about the death penalty in the aftermath of the Troy Davis execution. First, he says that Davis should have been given a new trial. Obviously true. But then he says this:
I strongly agree with death penalty critics like Will Wilkinson that the general decline of capital punishment in the United States over the last three centuries is a sign of moral progress. (It’s a very good thing that we aren’t hanging people for property crimes any more.) But it seems to me that there’s a real moral difference between reducing the application of the death penalty because we’ve decided that certain uses are inherently unjust (which is what drove the decline of executions for most of American history) and eliminating its use entirely because we’ve decided that our legal system isn’t competent to implement it (which is part of what’s driving the decline of the death penalty at the moment). The former trend represented a genuine revolution in how we treated the guilty; the latter trend just reflects our anxieties about possibly executing the innocent.
Oh, is that all? It just reflects concern about executing the innocent? Just that little inconsequential thing is driving those of us who oppose the death penalty? Well yes, you’re right. I don’t have a moral problem with putting a murderer to death, presuming we could have 100% certainty that they are guilty, but our broken system simply can’t assure that. The exoneration of nearly 300 people based on DNA evidence, which only exists in a tiny fraction of cases, proves that — ironically — beyond a reasonable doubt.
Then there’s this odd pragmatic argument:
And resolving those anxieties by substituting life-without-parole for capital punishment doesn’t seem like it will necessarily lead to more humane treatment for the millions of inmates whose guilt isn’t really in doubt. Or at least it doesn’t seem to have done so thus far: Even as the execution rate has dropped over the last decade,the number of inmates serving life-without-parole sentences has gone up and up. This seems to bear out my column’s suggestion that eliminating the death penalty can be a form of moral evasion rather than moral progress: A way to feel better about our current system’s many flaws, even as we throw more and more people into laboratories of cruelty and throw away the key.
This is nonsense. Everyone that I know of who is an opponent of the death penalty is also a proponent of making a wide range of reforms necessary to make the criminal justice system more fair and just so it will convict fewer innocent people, period, regardless of what their sentence would be. I don’t just want to avoid sending innocent people to the gas chamber, I want to avoid sending them to jail even for a weekend.
The vast growth in our prison system and the increased use longer and harsher sentences is a result of the same mentality that fuels the use of the death penalty and the same lack of concern about fairness and justice. Doing away with the death penalty won’t reduce the impetus to improve the system, it is a key step in doing so.
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