Lacking resolution

For tomorrow's Criminal Law Class with the famous and controversal Judge Paul G. Cassell, he has assigned us to read two chapters out of the book entitled "Debating the Death Penalty" (thanks google print) that he co-edited with a oponent of the death penalty Prof. Hugo Bedau (Cassell is a whole hearted supporter)-- one pro, one con, each by the co-editors.

I have to say that I am disappointed in both sides. I was waiting for these two law professors, one of whom is a federal judge, to convince me that they were right and the other was wrong. Yet all they managed was to make me disbelieve both men and keep to my position that there are a ton of problems with the death penalty, but I still feel that certain truly guilty people who did horrific things deserve a terrible punishment, worse than other "regular" murders.

It seems there is not an out-and-out discrimination/racism in giving the death penalty, but like the SAT, the criteria are stacked against them. Killing a cop is a aggravating factor, and rightfully so. But of course there are more white cops than black cops, there is more likely to be interracial killing that leads to death. It is also more likely that prosecutors elect to go for the death penalty against black defendants than white who commit the same crime. Still the fact that more whites are on death row is an improvement, but more needs to be done to rid ourselves of the racism hidden within our system and in our minds.

Both seem to forget that there are people on death row who have been there for decades and that current fixes do nothing for them unless there is de novo review of their cases, which the 1996 Federal Habeas statute of limitations prohibits. Both have good points for why the death penalty is unnecessary or why it prevents the death of future innocents, but they fail to make the next leap as to why we should wholeheartedly support or oppose the death penalty.

Like Education policy, the statistics used by both sides is specious and both also rely on anecdotal evidence yet critique the other for doing so. Both use emotional arguments but then chastise the other for having no proof other than table pounding.

In short, I now have more things to say about the issue as a result of reading these polemics, but I have not been moved from my "middle position" nor do I think either side was persuasive to those few people who are undecided, let alone ardent pro or con people.

Perhaps this is because Prof. Bedau admits that with each reform to the death penalty to make it fairer-- no mentally ill, no children, extensive appeals, no automatic death penalty, not all murderers, high standards of evidence, competent defense teams, fair judges, unbiased juries, DNA post-conviction statutes, judicious use of executive clemency, etc.-- the window of abolition of the death penalty gets narrower and narrower. The death penalty, he forthrightly reports, is further "entrenched" with each progressive reform.

Likewise, supporters admit that they are deeply troubled and experience anguish with each capital case they try. Yet they still plow forward full steam ahead, confident that it deters, incapacitates, and that every convict on death row got his just deserts.

I implore people from every side to give me their best arguments and to read this book which is now available online via Google Print and Oxford Press. Maybe you can put me over the hump either way.