Monday, January 05, 2004
One aspect of the Darryl Hunt case that has so far gone largely unremarked is the strength of the case as a justification for a moratorium on the death penalty.
It's true, of course, that Hunt was not sentenced to death in either of his trials, but the case was potentially a capital case, and had it been a more solid one, the death sentence might have been an option.
However one feels about the moral issues of the death penalty, in practice the criminal-justice system has not demonstrated an administration of the penalty that justifies public confidence in its appropriate use.
And that confidence is critical to the functioning of the justice system. In the United States, in theory at least, the laws are made and administered under the authority and will of the citizens. If they begin to question the justice being administered and nothing changes, we become a society something less than democratic.
Maybe we haven't become a police state, but maybe we have started down the path in that direction.
The legal problem with the death penalty is the wide range of state-by-state criteria employed in its administration. Reasonable doubt seems to differ from jurisdiction to jurisdiction. Prosecution and defense tactics do as well. There has been a lot of concern that racial prejudice plays a role in who is subjected to the death penalty, severely undermining its credibility.
The death penalty, if it is to be retained as a tool of the criminal-justice system, needs more rigid guidelines regarding its application. It should be used only when a case is both airtight and inhumanly heinous. Mitigating circumstances should not be considered as whining, but as serious reasons to act cautiously in approving a death penalty.
Far too many law-and-order citizens believe that if you have been accused, you're almost surely guilty, if not of the particular crime in question, then of some other antisocial act. To such people, criminal justice is a matter of punishment and retribution. Mercy is for sissies.
Maybe there are some criminals who have lost the right to live. But as a society we have never reached a consensus on what criteria should be used to make that determination. It may be impossible for us all to agree on what those criteria are. But we ought to try.
It's possible, too, that such deliberation will tighten appeals procedures. If we make the criteria for applying the death penalty more stringent, it should stand to reason that there will be fewer appeals.
And if we can't come to agreement on this subject, perhaps that is a strong indication that there's something wrong with the concept.