October 30, 2005
Going to Extremes for the Death Penalty

By Steve Chapman

When Major League Baseball wants to see more runs scored, it fiddles with the strike zone or the pitcher's mound to help hitters. When the National Football League fears fan boredom caused by anemic offenses, it changes the rules to give the advantage to pass receivers. A lot of people in Washington think the federal government is not putting enough criminals to death. So the House of Representatives has passed a measure designed to boost the productivity of our execution chambers.

The proposal, attached to a rewrite of the USA Patriot Act, is bound to get the endorsement of the United Brotherhood of Lethal Injectors and Electrocution Engineers. It would triple the number of terrorism-related crimes eligible for capital punishment, from 20 to 61.

Terrorism that involves murder, as most terrorism does, is already punishable by death. But this bill would allow executions for even unwitting participants: Giving money to a group that later commits a terrorist act could get you the Big Needle, even if you didn't intend for that to happen or know that it would. That's not an eye for an eye -- it's more like an eye for an eyelash.

Most of this expansion is mere grandstanding, with little practical effect. Another provision, which would deny federal grants, student loans and any other government benefits to convicted terrorists, is just odd. But there are other components that don't fall in the category of symbolism or silliness.

The most conspicuous one says that when the prosecution loses, the game is not over -- it gets to keep trying. Right now, after a defendant has been convicted of a capital crime, a jury has to vote unanimously for execution. If the jurors can't agree, the guilty party gets automatic life in prison. Under this measure, that would no longer be the case.

If the government fails to persuade the jury, but even one juror votes for the death penalty, prosecutors could convene a new jury and try again. And they could keep doing that over and over until they get the sentence they want. The new rule would be: Heads, I win; tails, we toss again.

It's hard to see the fairness in letting an institution with unlimited resources have unlimited opportunities to get its way, which is why the vast majority of states don't allow the practice. Even former U.S. Attorney Mary Jo White, who failed to get death sentences for two al Qaeda terrorists convicted of bombing American embassies in Africa, told The New York Times, "I don't think the government should get two bites at that apple."

But the proponents of capital punishment have been driven berserk by the refusal of juries to agree on the need for more executions. Between 2001 and 2005, the Justice Department decided to seek the death penalty for 63 defendants. Juries have agreed in only 18 cases -- a failure rate of 71 percent.

A batter who is in a terrible slump might blame the strike zone. His manager, however, would more likely tell him to stop swinging for the fences and settle for singles and doubles. The government, after all, doesn't have too much trouble getting convictions in these cases. It only has trouble convincing juries that lethal injection is called for.

What's so terrible about that? Society can fully protect itself against known killers by putting them in prison for life without parole, and jurors apparently understand as much. Given all the death row inmates who have been exonerated in recent years, some jurors may have also grown leery of killing an innocent person.

The business of getting and carrying out the ultimate penalty is already horrendously expensive. But the House has managed to find a way to raise the cost still higher. In North Carolina, according to a study by Duke University scholars, getting and imposing a death sentence on a criminal costs nearly $2.2 million more than it would cost to lock him away.

In the federal system, the expense is probably greater. Add the option of impaneling jury after jury until one of them coughs up a death sentence, and you can watch even more tax dollars go up the chimney.

The most vehement supporters of capital punishment may be willing to sacrifice money, prosecutorial time, fairness and common sense in their effort to squeeze more executions out of our criminal justice system. But the rest of us should be able to tell the difference between leveling the playing field and rigging the game.

Copyright 2005 Creators Syndicate

Steve Chapman

Author Archive
Email Author
Print This Article
Send Article To a Friend

More Commentary
The New McGovernites Will Fail Again - John Leo
No Innocent Here -- Libby Lied - Debra Saunders
Getting the Rosa Parks Legacy Right - Thomas Bray

More From Steve Chapman

Unexpected Lessons From Greenspan's Fed
Bush and the Dubious Honor of a Second Term
Restoring Democracy to Our Elections