So states began enacting new death penalty statutes, based largely on the “Model Penal Code,” drawn up by academic experts in 1959. Supreme Court ruled that this system of absolute discretion was “arbitrary and capricious,” and therefore unconstitutional. States responded-beginning in 1838 with Tennessee-by abandoning all attempts to mandate the death penalty, and left the choice in capital cases entirely up to juries. And over the ensuing decades, they often violated their oaths by acquitting the clearly guilty rather than sentencing them to what they felt was an undeserved death. And many murders committed “in the perpetration” of a felony did not automatically deserve the death penalty. An impulsive killing might be more vicious than one committed after agonizing deliberation. Morally, however, both parts of this simple formula were flawed. Declaring that “murder differ so greatly from each other in the degree of their atrociousness that it is unjust to involve them in the same punishment,” the state legislature restricted the death penalty to, and mandated it for, murder in the first degree-defined as a “willful, deliberate and premeditated killing,” or one “committed in the perpetration of any arson, rape, robbery or burglary.” Other states soon followed suit. A little more than a hundred years later, Pennsylvania again led the way. In 1675, William Penn shrunk the number of capital offenses in his Quaker colony from 200 to one: murder. We have been making such distinctions throughout our history. Our responsibility is to figure out who should be included in that small minority-the very worst of the worst-who deserve to die. I would argue that the vast majority of the 3,700 murderers on death row today should, instead, spend the rest of their lives in prison. But the obligation extends only to the most wicked: We need fewer death sentences, more justly applied. That is, I believe that some people kill so viciously, with an attitude so callous or cruel, that they deserve to die-and society has an obligation to execute them. I am a “retributivist” supporter of the death penalty. “If that’s it-cut and dried like that-pull the switch on him. “The victim hands over the wallet and the robber still shoots him right in the face?” “What about the guy who says, ‘This is a stickup. “It’s different when you take the life of someone who’s trying to kill you.” “Not according to the law, but to me,” insisted Itchy. “So you claim that killing him would be self-defense?” I said skeptically. “But he doesn’t deserve to die for protecting what’s his,” I insisted. Itchy admits to killing more than once, though he vigorously denies the specific murder for which he’s doing 20 years to life. “You stick up a guy, and he pulls a shotgun”-I offered this all too familiar case to David “Itchy” Brooks, 62. Not that criminals’ eyes should be our only guiding lights, but by understanding their attitudes, I believe we can better punish their acts proportionately to their evil. It was a perfect observatory for me: As a criminal law professor and death penalty supporter who believes that our death penalty statutes need to be refined on moral grounds, I was there to interview a different kind of “expert.” From 1986 to 1999, I wandered with extraordinary freedom inside Lorton Central prison, questioning more than a hundred street criminals, mostly murderers, to find out why they killed and to try to figure out what punishment they deserve.
0 Comments
Leave a Reply. |