The most rational argument against the death penalty is, in the words of the great Mahatma Gandhi, “An eye for an eye leaves the whole world blind.”
All you have to do is look around at some of the mockeries of justice that have unfolded before our eyes in the last year for proof of capital punishment’s foolishness. From our current obsession with a wild-eyed recluse from Montana to our two-faced forgiveness of a murdering nanny, the double standards and hypocrisies in these trials should be evident enough. Unfortunately, we may have to relive the impact of this current slew of court decisions, all the way to judgement day.
For a spell between 1972 and 1976 the Supreme Court held that the death penalty was indeed an unconstitutional form of cruel and unusual punishment and that it had no place in the judicial system. But just when the country thought that there might be a sensible resolution to the ongoing debate, no matter how brief it may have been, capital punishment was reinstated with more “civilized” methods and standards for killing.
We’re watching some of this farce unfold in the trial of Theodore Kaczynski, the alleged Unabomber. Most Americans desperately hope the man is sane so that he’ll fit the criteria necessary for execution.
The justice department has only confused the matter. Attorney General Janet Reno prematurely announced intentions to seek the death penalty before Kacynzski’s trial got underway, regardless of the presumption of innocence until proven guilty, or even more fundamental judicial processes, a.k.a. trial by jury.
Defense attorneys maintained that Kaczynski expressed interest in submitting a guilty plea in exchange for life imprisonment. Reno made a flat rejection of the offer, insisting that the death penalty must prevail. For Kacynzski to be eligible for the death penalty, prosecutors must prove that he is not insane.
As if this whole scenario was scripted by Hollywood, the plot is thickening.
Both the New York Times and the Washington Post recently ran editorials criticizing the government for not accepting a life-without-parole agreement in the Kaczynski case. The attorney general claims that she does not want to risk a circus-like trial that could lead to endless legal appeals.
Apparently Reno believes that a sane man would insist on plea bargaining for the death penalty.
Now the plot only gets worse.
In a bizarre rendition of affirmative action, by imposing a policy whose stated purpose is nationwide “consistency and fairness,” Reno has created measures to triple the rate at which whites charged with federal crimes were targeted for execution. Since 1995, Reno has taken the decision of whether to request the death penalty at each trial out of prosecutor’s hands entirely.
Until this directive was put into place, any prosecutor could override motions for a death sentence, and needed approval to seek executions. Now, apparently Reno alone — not even the prosecuting attorneys — has the ultimate say in Kacynzski’s fate.
The Clinton Administration stated that the government took such measures to make death row look more like America.
Enter: Ted Kacynzski?
The justice department’s power to enforce such actions has been taken regardless of the fact that a 1987 Supreme Court case involving Warren McCleskey from Georgia banned the application of statistics on racial distribution in death penalty cases to any one prisoner.
The staggering reality remains, however, that a black man who kills a white person is 11 times more likely to receive the death penalty than a white man who kills a black person. Since 1988, U.S. attorneys general have authorized seeking the death penalty against 102 defendants. Eighty percent of them are, and continue to be, members of minority groups.
Consider also the virtually marginalized fact that, according to a congressional subcommittee on civil and constitutional rights, in the two decades since the reinstatement of the death penalty, at least 48 people on death row were released after they were found to be innocent.
Of course, Janet Reno continues to claim that beefing up executions of Americans — representative of the general population or not — is the American path to justice.
So let’s put the death penalty in the United States into an international perspective. In 1962, the Council of Europe heard testimony that “the facts clearly show that the death penalty is regarded in Europe as something of an anachronism ….” Today, 28 European countries have abolished the death penalty either in law or in practice. In Great Britain, it was abolished (except for treason) in 1971; France abolished it in 1981. Closer to home, Canada abolished it in 1976.
The U.N. General Assembly has also affirmed a formal resolution stating that, throughout the world, it is desirable to “progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.” Yet the United States stands with other nations generally known for their disregard for the human rights of their citizens — China, Iraq, Iran, South Africa and the former Soviet Union — in ignoring the U.N. resolution and upholding capital punishment.
Our hypocrisy in claiming to be the leaders of the free world persists on a dangerous level.
When Timothy McVeigh was handed the death penalty for his conviction in the bombing of the Federal Building in Oklahoma City, we all cheered: Hooray, the bad guy loses; we can all rest again.
Ironically, legal analysts for and against the death penalty see the possibility that recent death sentences like McVeigh’s could be upset by the justice department’s own futile attempt to play God.
Reaction against the insanity of Reno’s policies — in Congress and throughout other levels of government — could ultimately backfire in new legislation that could result in the one guy most Americans would like to see fry having his punishment absolved.
However, in cases where you’d least expect it, mercy is sometimes extended and applauded, deservedly or not.
British au pair Louise Woodward was freed by a Massachusetts judge after her conviction for involuntary manslaughter. Middlesex County Superior Court Judge Hiller Zobel said she had already served enough time in prison. He reduced the jury’s second-degree murder conviction of the 19-year-old and sentenced her to the 279 days she had already spent in prison.
We’d be fooling ourselves if we saw any of this, with its relation to the death penalty, as a uniform distribution of justice. This eye-for-an-eye business only leaves the mess messier and the miscarriages of justice all the more painful to digest.
Maybe all we have to do is think a little harder about what the real issues are. Take for example a poll done in Florida, a state where executions are known to be disproportionately high. When asked simply whether they favor the death penalty, 80 percent of Floridians said they did. When asked whether they favor the death penalty or life without parole, the figure dropped to 70 percent, and then to 60 percent when restitution was added to the equation. Florida spends about $3.2 million on each death row inmate, compared to about $535,000 for an average of 40 years for each prisoner sentenced to life.
The strange contradictions we place on the value of life speak volumes about who we are. In our quest to do what is right, we have lost not only our sense of a reasonable system of retribution, but also our sense of the sanctity of life. The Pope condones the death penalty but condemns abortion — go figure!
I only hope that opposition to the death penalty in the United States is growing. Increasingly diverse populations — Catholic, Jewish and Protestant religious groups, national organizations representing people of color, and public interest law groups — are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty. Human rights organizations like Amnesty International insist that it is time for the United States to bring its judicial system up to meet the more civilized trend of much of the free world. It’s time to ban the death penalty.

Gregory Borchard’s column appears every Thursday. He can be reached with comments via e-mail at [email protected].