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Thursday, April 27, 2006

Death Penalty Unconstitutional?

(Hat tip: CWY)

That's what the NYTimes thinks. CWY has already established why that's so obviously wrong, so I see no need to do so myself.

What's troubling is that the Times even entertained the thought. It seems as if the Times decided that because they are anti-death penalty, therefore it's unconstitutional. Not that I'm particularly surprised.

UPDATE: Nephtuli breaks down the (likely) reasoning of the Times... and shows why it's wrong anyway.

12 comments:

  1. Eh, me and my liberal views see a decent argument to both sides - both CWY's and the fact that killing someone is pretty cruel, albeit sadly not unusual...

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  2. Though I'm not sure killing someone is always cruel (is it cruelty if it's necessary?), that's still not an argument that it's unconstitutional. That's an emotional feeling about the death penalty in general - but has no reflection on the matter of constitutionality.

    Further, was there not a death penalty in the late 18th century in the US? Clearly, the framers felt it was constitutional. This is simply the Times promoting an agenda with ridiculous arguments. [Though they had enough sense to not focus too much on it.]

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  3. I think that states should start starving their death row inmates to death. I believe that the Times approves of death by starvation.

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  4. I agree; this is an emotionally charged issue. Whatever one feels emotionally, the argument is whether or not it is constitutional. I don't know enough to argue either way, so I am not going to even pretend to comment on that!

    But I will say that our sages thought the death penalty was warrented under very specific circumstances. What is interesting is that the criterea for enacting it is so specific and with such exacting requirements, that it was almost never enforced. Chazal thought that "beyond a reasonable doubt" was not enough. Food for thought.

    Disclaimer: I am not a legal scholar by any stretch of the imagination, either secular or Jewish; I don't even play one on TV. These are just my somewhat informed opinions. Having stated all of this, my kishkes hurt when I think of taking another life as punishment. I just think a Higher Power has the authority to mete out that kind of punishment - we don't. BUt then again, Baruch Hashem, no one has taken away anyone I know or love in a violent manner. Perhaps I would change my mind. Do you forfeit your right to life when you take another's? It is a good question.

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  5. David - I lost you on that one.

    EK - Excellent point about our Sages. Nevertheless, I wonder they did do so in certain instances, and I wonder if in clear-cut cases nowadays (say, caught on video) they would still hold back.

    Do you forfeit your right to life when you take another's? It is a good question.

    A very good question, one which I think I had a discussion with someone about near the beginning of this blog's life. In my opinion, I think the answer is "yes", certainly in some instances. But it's not an easy question.

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  6. I guess the other question for me then, is: what are the instances? how do we judge that? how many homicides are caught on tape in such a way that leaves no room for doubt? what about all the other cases where there is a ton of doubt? knowing that we have made mistakes and executed innocent people bothers my kishkes enough for me to feel that the way our laws are implemented are not working. I am also not convinced the application of this particular law is color blind.

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  7. Clearly, the framers felt it was constitutional.

    Yes, and that slavery was just fine and women didn't deserve the chance to make a decision every now and again, let alone buy a house one day.

    (Yes, those have all been changed, and I'm not arguing with you on the death penalty, it's there, for now, at least. But that line that you wrote struck me as funny.)

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  8. Touche, Robbie. But notice that those [proper] changes required amendments to change the Constitution.

    EK - Granted. Though the numbers of convictions that are wrongful are extremely exaggerated, and often are pointed to by anti-death penalty types to let those who truly deserve it off.

    Also, there is the idea of due process and the like; it's hard to get wrongfully convicted beyond a reasonable doubt, especially nowadays with DNA evidence and the like. Furthermore, if there is any reason to think it might be wrong, the state governors can always stop it.

    It's not a perfect system, but it's a very good one.

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  9. Not to put words in David's mouth, but I'm fairly certain he was talking about the Schiavo thing.

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  10. R2JB - Yes, he told me later. My bad. :)

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  11. 'it's hard to get wrongfully convicted beyond a reasonable doubt, especially nowadays with DNA evidence and the like. '

    It is hard to get wrongfully convicted these days in a death penalty case, because the prosecution has to dot every "i", cross every "t", and face numerous appeals. And that is despite the fact that juries are required to be stacked to include only people who support a death penalty. As a result, death penalty trials and appeals typically cost millions -- much more than it would cost to imprison someone for life.

    'Furthermore, if there is any reason to think it might be wrong, the state governors can always stop it'

    Not true in all states. For example, in Texas and Florida, the governors do not have the power to stop executions -- the power is in a committee. (I think the governor is a member of the Florida committee.) There have been some pardons-for-cash scandals from time to time and that might be a motivation for limiting the governor's power. OTOH, there have been two cases in my lifetime when a governor who did not support the death penalty just plain cleared out death row by commuting the sentences of all the inmates there.

    New York is one of the states without a death penalty; the state's highest court ruled the statute unconstitutional for procedural reasons and the legislature has not re-enacted it.

    In any case, just because something is constitutional does not mean it is a good idea. And participating of Jews in the current system is halachically problematic, at least according to the two rabbis I have discussed this with.

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  12. Charlie - thanks, didn't know that about TX and FL.

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