The Death Penalty: A Rebirth?

"There won’t be a lot of guilt-innocence maneuverability there."--THOMAS H. DUNN, a former defense lawyer for the Army, on possible defense strategies for Maj. Nidal Malik Hasan, who is accused in the Nov. 5 shooting rampage at Fort Hood, Tex.

Mr. Dunn’s quote was almost somewhat reminiscent of Tampa Bay Buccaneers’ head coach John McKay’s comment about his team’s execution: “I’m all for it.”

Take that comment, the recent execution of John Muhammad in Virginia, and the upcoming decision to try some of the highest-value terror detainees in open court, and we may have to reset the playing field vis-à-vis the death penalty debate in this country.

Just in case, a review: From the “Right”, you hear the usual admonitions to be “tough on crime” and that the death penalty serves as the ultimate deterrent. [Contrary to conventional wisdom, there is no true “religious” consensus, at least in the US, regarding the death penalty; usually, the more Evangelical and Fundamentalist strains are in favor, the “mainline” churches less so, the Catholics inalterably opposed, and most Jewish denominations—even, as will be evidenced below, some very salient Orthodox streams—also opposed.]

From the “Left”, the usual arguments you hear have to do with the inequitable application of the penalty and the impossibility of correcting mistakes; and that’s before you arrive at the pacifist argument that taking a life at anytime for any reason by anyone is immoral.

[The “duty-to-retreat” law--which was the legal default position before the “Castle Doctrine” for all intents and purposes codified the right of self-defense through use of deadly force--while not truly “pacifist”, nevertheless indicates the difficulty of legally formulating a concept of “justifiable homicide” outside of warfare, which was a way of…”life”.]

On the eve of his inauguration as Governor of New York in 1995, George Pataki was the recipient of a unique message from the Jewish sage Rabbi Aaron Soloveichik regarding the death penalty, which Pataki had promised in his campaign to place back on the books in New York State:

“…you have the written law mandating the death penalty and the oral law, saying, in effect, that you can never apply it…Now, the death penalty should be there for use in extraordinary situations, in extraordinary threats to the public order…but if [Pataki] acts on the death penalty, he will be the leader of a bloody government.” [New York Magazine, “The 100 Smartest New Yorkers”, Jan. 30, 1995, p. 52].

Fort Hood, TX and Greenville, VA brought the penalty renewed credibility, and that was before the decision to move the terror trials to New York. While the Obama Administration’s intent is mainly to demonstrate [forcibly?] that there is no “conflict between our security and our ideals”--[to paraphrase the President’s inaugural address]--these trials, along with the Muhammad execution and upcoming Fort Hood case, may result in finally viewing how our legal system might actually work in cases where a true threat to public order is at stake, one on the level with Rabbi Soloveichik’s admonition.

In other words, these should be the exceptions that prove the rule: on the books for use in extraordinary threats to the public order. If we learn to restrict the use of the penalty to these situations and these situations alone, the country will be better off.