Commentary Magazine


The Death Penalty

To the Editor:

In “What Do Murderers Deserve?” [April], David Gelernter conveniently ignores the inconvenient question: what if we are wrong? What if we kill an innocent man or woman? And what if at least some of us do so knowingly?

While most conservative proponents of the death penalty would not trust the government to fill a hole in a road that passes in front of their homes, and while they decry the power of the Internal Revenue Service to ruin the poor independent businessman, they nevertheless feel somehow that our system of justice, the very system that freed O.J. Simpson, is incapable of error. Which is, of course, absurd, both spiritually and practically, since the justice system is composed of fallible individuals, men and women, flawed and lacking in perfect knowledge. This leaves us with a numbers game; better to kill a few innocent folks and send the right message than let even one guilty man or woman go without final punishment.

But the numbers game is, flatly, beside the point. Those who base their defense of the death penalty on the unassailable ground of idealism should recognize that if we as a culture murder even one innocent man or woman, and if we admit to even the slightest risk of error, then we knowingly admit to murder—and we fail.

J. Christopher Holobar
State College, Pennsylvania

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To the Editor:

David Gelernter fails to address one very troubling argument against capital punishment—the fact that innocent men are wrongly convicted and sentenced to death.

From 1973 to 1993, at least 48 persons on death row in the United States had their convictions overturned, were exonerated, and were freed outright. From 1993 through mid-1997, an additional 21 persons on death row were exonerated and released. This amounts to 69 exonerations, nearly three per year over 24 years. These 69 unfortunate persons, some of them imprisoned for nearly twenty years, were not freed because of legal technicalities. In at least nine of the most recently documented 21 cases alone, the defendant not only did not commit the crime but was convicted because of prosecutorial misconduct. The reasons for the other acquittals included the use of DNA evidence that excluded the “guilty” person to a scientific certainty or incompetent defense counsel who failed to uncover obvious proof of his client’s innocence.

There are many reasons why our application of the death penalty is capricious and unfair. Among them is the fact that the U.S. has 50 states with 50 different sets of laws that are enforced by thousands of individual prosecutors, many with petty political ambitions or a hunger for publicity. Some trials are conducted before judges who must face reelection aware that it is political suicide to appear “soft on crime.” Finally, it is a fact that racial prejudice permeates our criminal-justice system. African-Americans who murder white victims are legion on death row but it is virtually impossible to find a white or African-American sentenced to death in a case where the victim was African-American.

Mr. Gelernter writes about the “moral certainty” he feels we lack in the U.S. It is well-documented that the U.S. stands virtually alone among the civilized countries of the world in retaining the death penalty. Further, the U.S. leads the world in executions of persons who were under eighteen years old at the time they committed the offense. In this category we lead such enlightened countries as Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen—the only other nations in the world that legally execute juvenile offenders.

So, how many “good” executions does it take to balance the mistaken execution of one innocent person? I would be interested in Mr. Gelernter’s response.

Michael McNew
New Britain, Connecticut

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To the Editor:

David Gelernter lends weight to his arguments by locating opposition to the death penalty in an elitist, morally uncertain intelligentsia. In this tactic, a package of leftist stances likely to be unpopular with many COMMENTARY readers (including this one)—most importantly, an inability to call evil by its name—is cited as evidence of an out-of-touch elite unable to seek real justice in the form of the death penalty.

But sometimes the intelligentsia can be right, even if for the wrong reasons. I would suggest that the death penalty is better grouped with a different set of policies, ones that indicate a dangerous erosion in our society’s sense of the sanctity of life. In what Pope John Paul II has called an emerging “culture of death,” the death penalty, abortion on demand, and euthanasia represent quick but brutal solutions to complex imperfections in our social and human life. These are each tempting in their respective contexts, but all represent creeping desensitization in how our society views human life.

Mr. Gelernter skims the sanctity-of-life issue in citing the Talmud’s acceptance in principle of this ultimate penalty, while ignoring the fact that the Talmud’s position includes procedural limitations that make such punishment virtually unimposable in practice.

As a community obligated to fashion a moral response, we should indeed call evil by its name, demand justice, and discard today’s popular, therapeutic, guilt-denying explanations of criminal behavior. This can be done, however, without piling death on death.

Daniel Weiner
Philadelphia, Pennsylvania

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To the Editor:

I am very sympathetic to David Gelernter’s argument, especially to his recognition that moral absolutes do in fact exist. But where his argument becomes problematic (for me, anyway) lies in the absoluteness of the death penalty and in the source of life itself. Life is a gift of God. The absolute evil Mr. Gelernter proclaims (and with which I agree) is due to this authorship. Murder is an offense not only against the deceased victim and society but against God Himself. It would seem, therefore, that the imperative should be “He who giveth, taketh away.” Society did not give life; if death is to be the penalty, then it must be from God.

The problem I have is that taking life is by definition an absolute act. No amount of redeeming or exculpatory evidence can undo the execution of an innocent person. Nor does it allow for true repentance, as Mr. Gelernter himself points out in connection with the case of Karla Faye Tucker in Texas.

James G. Dern
Morganton, North Carolina

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To the Editor:

That David Gelernter would take intellectuals to task for not sending Theodore Kaczynski to the electric chair suggests that his own brush with death has altered his objectivity. By all accounts, Kaczynski is most likely a paranoid schizophrenic whose deranged brain chemistry has robbed him of his free will and rendered him a tortured soul. He is no more to blame than a driver who mows down pedestrians during an epileptic seizure. The observation that the planning and execution of his “strategy” occurred over decades and that he has repeatedly maintained that he is sane are in no way “compelling proof” of his mental competence.

Joel N. Eisen, M.D.
Department of Psychiatry
University of Toronto
Toronto, Ontario
Canada

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To the Editor:

The only punishment that approaches the coldblooded taking of an innocent human being is the killer’s loss of life. As a supporter of the death penalty, I believe that the main argument in support of the death sentence is pure, simple—yet not simplistic—justice.

I am puzzled by Mr. Gelernter’s statement that he would consider himself “morally obligated to think long and hard before executing a penitent.” Why? As Dennis Prager, whom Mr. Gelernter quotes, has recently written, this is insulting to the victim. I would like to add that penitence is absolutely irrelevant. The victim is dead, the evil committed, and the heinousness of the crime remains unchanged, apology or no apology.

As Mr. Gelernter maintains, society needs to proclaim that “murder is intolerable.” If we really mean intolerable, then let us not tolerate it. Period. Let us not accept or consider repentance. Let God forgive the repenting murderers. To paraphrase Mr. Gelernter, America simply cannot afford to do so.

Issy Chekses
Macon, Georgia

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To the Editor:

David Gelernter has written a brilliant essay about the widening gap between court decisions and what most people would consider just. My explanation for this state of affairs is a little different from Mr. Gelernter’s. It seems to me there is The Law and there is law. The nation is now in deepening trouble due to the fast-widening gap between the two. The Law was inscribed on the tablets Moses brought off the mountain, while law consists of man-made rules and their interpretation in courts.

It is a puzzlement how we can begin closing the growing gap between the two. No leadership comes from the legal profession. That leaves the rest of us to espouse homemade remedies. A couple of mine are to bar all attorneys from sharing awards with clients and to take a hard look at what law schools teach.

R.R. Richardson
Amagansett, New York

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To the Editor:

So much of the endless debate about capital punishment is, on both sides, shallow and repetitive that I was gratified to read David Gelernter’s lucid article. I was also delighted that Mr. Gelernter relies on the social philosopher Robert Nisbet, much underappreciated during his career and now all but forgotten. Here is the quotation from Nisbet that Mr. Gelernter cites:

Until a catharsis has been effected through trial, through the finding of guilt and then punishment, the community is anxious, fearful, apprehensive, and above all, contaminated.

If Nisbet were still alive, I think he might have written COMMENTARY to point out that his argument derived in large part from the French sociologist Emile Durkheim. Through his several books and more pointedly in an article on the function of punishment (never translated, so far as I know), Durkheim enunciated one of his principal themes: the moral underpinning of a society does not endure on its own. It requires continual replenishment from various social rituals, and, of these, the most influential is that the proportionate punishment of criminals tells us again that crimes are evil to varying degrees. Capital punishment deters potential murderers not in the simplistic sense of making them consider what might happen to them if they kill someone, but by bolstering the moral structure of the human community.

Thank you for an excellent statement of this thesis.

William Petersen
Carmel, California

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To the Editor:

I would like to express my respect for and admiration of David Gelernter. In his article, he analyzes the issue of the death penalty completely and logically. This must have been a difficult task for Mr. Gelernter, who knows the terror of an attempted murder and the searing pain of surviving, recovering, and overcoming.

Will Anderson
Finegayan, Guam

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To the Editor:

David Gelernter’s article is the most profound treatise on the subject of capital punishment I have ever read. Mr. Gelernter has said in no uncertain terms that society has an obligation to itself to punish the murder by executing the murderer. In our lives there is but one obligation we owe society and that is to protect us from ourselves. We should thank Mr. Gelernter for giving a voice to those who cannot speak, for giving vision to those who cannot see.

Steven E. Poorte
Farmington, Utah

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David Gelernter writes:

The main objection to my piece has to do with the risk of executing innocent persons by accident. It is an important and serious objection, yet in this context it has an air of willed unreality—of deliberate refusal to grapple with inconvenient facts. For concreteness I focused in my piece on the cases of Karla Faye Tucker and Theodore Kaczynski. The facts in these cases are not in dispute; no serious person doubts that they were both guilty of murder. Consider also the case of O.J. Simpson, since J. Christopher Holobar brings it up; no serious person doubts that Simpson dismembered two human beings in cold blood. Enter Mr. Holobar with the observation that there are cases in which the wrong man was convicted; but what does this have to do with Simpson? Nothing whatsoever.

When I say that Tucker and Kaczynski and Simpson are known to be murderers, I don’t mean known to me, I mean known also to Mr. Holobar, Michael McNew, Daniel Weiner, and every other serious person. Such knowledge carries responsibility. We cannot evade it by changing the subject.

This category of obvious cases is real and important. Of course there are other cases in which we have no confession or irrefutable physical evidence to go on, and in such cases we have accepted the responsibility to search relentlessly for the truth. In recent decades we have devised fantastically intricate legal safeguards to guarantee that we err on the side of caution. Mr. McNew notes that we have exonerated (in one way or another) 69 death-row prisoners since 1973, and that is exactly the point: we are fanatic in searching for errors.

Could we be even more fanatic? If we could, fine. I am in favor of every rational precaution in death-penalty cases. Mr. Holobar’s suggestion that I believe it is “better to kill a few innocent folks” than to “let even one guilty man or woman go without final punishment” is false and offensive. I am happy to let off the probably-guilty to spare the possibly-innocent. But I am unwilling to let off the definitely guilty.

I would guess that, as matters stand, you are less likely to be executed for a murder you did not commit than to be knocked over by a meteorite. But no human society can zero out altogether the risk of violent death to innocent people. You might argue that we could zero out this small risk (at least) simply by abolishing executions, and it would be lovely to be able to accept such an argument; we would all feel better and sleep easier. The problem is, we have no right to make a judgment of this kind in a moral vacuum.

We are in the habit nowadays of looking only at the part of the picture that pleases us, the pretty part. Affirmative action is a classic example: it would be nice if we could discriminate in favor of certain people without automatically discriminating against certain others; but we cannot (although we pretend we can). And it would be nice if we could spare every condemned killer and damage nothing else in the process; but life isn’t that simple. This is the argument I made in my piece, and I won’t repeat it here. But, in brief, it seems to me that the moral life of a community is an integrated whole, and that waffling on the issue of our absolute intolerance of deliberate murder reinforces many other sources of moral confusion.

The other serious objection is Mr. Weiner’s; he writes that the talmudic rabbis imposed “procedural limitations” that made the death penalty virtually impossible to carry out. He is right, but let’s look more closely.

It is undeniable that the mood of talmudic discussion is strongly against capital punishment on the whole. But it is also undeniable that (as I wrote) the Talmud never understands the biblical prohibition against murder to disallow capital punishment. That the talmudic rabbis were divided is clear in such passages as Makkot 1:10: several sages oppose the death penalty; Rabbi Shimon ben Gamliel replies that the abolition of capital punishment “would certainly have increased bloodshed in Israel” (in other words, the murder rate would have shot up).

Most important, talmudic rabbis wrote in an age, culminating in the dominion of Rome, when the balance of power between the people and their brutal overlords was incomparably different from the relationship between American citizens and their government. “Love work,” they wrote in another famous passage, “hate overlordship, seek no intimacy with power.” They had good reason to hate and fear the authority of judges. In an age when the Roman authorities were murdering Jews wholesale by crucifixion, no decent man was in favor of the death penalty. Times change.

A few final points: Mr. Holobar’s claim that “most conservatives would not trust the government to fill a hole in the road” is obviously false. We trust the government to defend the country in time of war, which is a larger responsibility than filling holes. We entrust it with the duty of protecting public safety. Government makes a lot of mistakes. Hence our goal (mine, anyway) is to dislodge government from areas where it is not needed, and in areas where it obviously is needed—in criminal justice, for example—to make it work better.

Joel N. Eisen’s claim that Kaczynski is “most likely a paranoid schizophrenic” is nonsense of the sort that dishonors psychiatry. He presents no evidence to support this claim, nor have I ever seen any. I could assert just as adamantly that the earth is most likely flat—and since I’m a scientist, you had better believe me.

I am grateful to readers who wrote letters in support of my article. The cultural climate is tumultuous and deeply discouraging. Those of us on the outs with today’s cultural leadership are no majority, silent or otherwise, but I suspect there are more of us than anyone realizes. It’s hard to judge the size of this Dissenters’ movement because there is no politician to speak for it.

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