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Is the death penalty moral?

Most Americans think so.  Gallup did a recent poll on what is morally acceptable and unacceptable on a range of sixteen issues.  Capital punishment was the one in which there was the largest agreement:  66% of the respondents deemed it morally acceptable, while only 26% believed it to be wrong.

Some of the other results surprised me.  For example, while other polls show that almost two-thirds of the public is opposed to reversing Roe v. Wade, the respondents in this poll found abortion immoral, by a 51-40 margin.  And if this were a political forum, we'd have a lot of meat to chew on in the disparity in results along the liberal-conservative axis, especially on sexual issues.  For example, 47% of the public found homosexuality morally acceptable, while 49% found that it was not.  But that broke down to 83% of liberals finding it acceptable, compared to only 33% of conservatives.

In a sense, I was somewhat surprised by the result on the death penalty.  After all, there seems to be a good argument that the public is turning away from capital punishment in the one way that is most easily measurable:  juries are increasingly reluctant to impose it.  In 1999, 276 death sentences were handed down.  That number has declined every year since, falling to under 100 by 2005.

But on closer analysis, that decline isn't attributable to a swelling ranks of those who find capital punishment morally distasteful.  A lot of it is cost:  not only is there a qualitative difference between death and other penalties, as the Supreme Court once noted, but there's a qualitative difference between a capital case and an "ordinary" case.  The costs involved have led many small counties across the country to simply avoid prosecuting murders as death penalty cases.  In fact, back in 2002, a Vinton County Common Pleas judge issued an order prohibiting death penalty specifications in a murder case on the grounds that the trial would deplete the budget of the small Ohio county, and that the "potential impact of financial considerations could compromise the defendant's due process rights in a capital murder trial."  (The judge later reversed himself; the defendant was tried, convicted, and sentenced to death, and the conviction and sentence was affirmed by the Ohio Supreme Court in 2005.  Interestingly, the parents of the girl he murdered have been outspoken opponents of his sentence.)  Even states are not immune from the burden of those costs:  the defense in the impending death penalty trial of Brian Nichols, who killed a judge and three other people while escaping from an Atlanta courthouse in 2005, has cost $1.4 million already, bankrupting the state's public defender system, and putting the other 72 death penalty cases in Georgia on hold. 

The largest factor, of course, is the publicity which attends every release of a once-convicted felon from prison upon discovery that he's actually innocent.  That includes 124 under capital sentence, the most recent being Curtis Edward McCarty, who was released a month ago after spending 21 years on Oklahoma's death row based on the perjured testimony of a police chemist.  Obviously, the concept of "residual doubt" no longer exists just in the case law, but has crept into the jury's calculus as well.

But I'm not sure how far that's going to take the anti-death penalty movement.  After all, there are certainly any number of capital cases where there is no residual doubt, such as Nichols', where videotape evidence of his killings exists.  What's more, when attacks are directed at the dependability of death penalty determinations, the logical response is to make those determinations more dependable.  Although problems still remain, the quality of death penalty counsel has improved markedly.  And television has altered juror's perceptions as well; the prosecutor who's going to try to persuade a jury to impose a death sentence, without compelling forensic evidence, is in for a rough ride.

Indeed, the fact that a substantial majority of the public still views the death penalty as moral reflects a tactical choice on the part of the anti-death penalty movement:  instead of focusing on morality, they've focused on reliability and the offering of alternative sentences, such as life imprisonment without parole.  To a certain extent, that's unavoidable:  it's hard to foment much moral outrage at the prospect of executing someone who raped and murdered a 9-year-old girl.  But there are unintended consequences of such a choice:  life without parole has been extended to a broad range of crimes that never would have been subject to the death penalty, with the net result that far more people are serving far more time than they otherwise would.  The harshness of this result was demonstrated recently by the ironic spectacle of over 300 Italian prisoners serving life asking that they be given the death penalty instead.

It may be that capital punishment will eventually wither away, done in by its own inconsistencies and inherent difficulties.  But the fact that two thirds of the American people still regard it as morally viable does not suggest that day will come anytime soon.

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