October 30, 2005
Going to Extremes for the Death Penalty
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
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.
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.
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.
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
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."
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.
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
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.
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.
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.
2005 Creators Syndicate