Response to Douthat on the Death Penalty

In today's New York Times, Ross Douthat argues that we should focus controversy over Troy Davis on the broken mechanics of the justice system, rather than simply giving up on the death penalty and its underlying problems.  According to Douthat, the problem with the death penalty is not that it is immoral, but that it is imperfectly implemented, and our response to its imperfections should be to tweak.  Non-death penalty offenders would benefit from reforms as well, in amounts that far exceed the harm caused  by a few erroneous executions.

The argument is not novel, and it has an intuitive appeal.  Wouldn't it be nice if we could have a justice system we trusted with "life and death," rather than resign ourselves to failure?  It would indeed be nice, but its not realistic and its not worth the cost. 

In 1972, the Supreme Court in Furman v. Georgia struck down the death penalty based on fears it was applied inconsistently, with racial bias, and was inhumane.  These concerns are the same as those raised today by the Troy Davis execution.  In response to this death penalty moratorium, many states took Douthat's advice and enacted reforms to their death penalty systems to try to make them less arbitrary and inconsistent.  In particular, Georgia enacted a series of objective guidelines for enhancing a sentence to the death penalty.  The Supreme Court four years later, in Gregg v. Georgia, decided it would give Douthat's approach a try.

Since 1976, the Supreme Court has engaged in the business of setting guidelines and limitations on what sorts of death penalty systems could pass muster.  The Court has prohibited application of the death penalty to minors, the mentally retarded, or non-homicide offenders.  However, despite  the best intentions (sometimes) of lawmakers, jurors, and judges, the Court's experiment in regulating and reforming the death penalty has failed.  Its application continues to be tainted by racial prejudice, inadequate assistance of underpaid court-appointed counsel, politically-motivated elected judges, and congressional emasculation of the federal appellate process.  These problems cannot be fixed merely by writing op-eds about the problem.

The death penalty was re-instated in 1976 out of a naive hope that the death penalty could be reformed.  Since then, its problems have only amplified.  35 years is long enough to recognize that our underfunded justice system will not be reformed by placing faith in the majority's compassion for its least popular citizens.  If Douthat wants to pass laws reforming the justice system into one worthy of meting out capital punishment, then I might be persuaded to vote for it.  But until then, let's put down the shovel.