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The Debate Over Capital Punishment

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On November 6, 2012, California, the state with the most inmates on death row, was a hair away from becoming the 18th state in the U.S. to ban capital punishment and the sixth state to do so in the last five years.

As a prosecutor who deals with the "worst of the worst," I was deeply troubled by the potential success of a referendum campaign called Proposition 34 that overturned the death penalty in California.

By cobbling together a constituency of moralist, who are philosophically opposed to the death penalty, and fiscal conservatives, who believe the death penalty is a waste of taxpayer money, a disturbingly deceptive campaign almost convinced voters to overturn the ultimate criminal penalty in both past and future cases.

It is important to understand that by retroactively eliminating the death penalty, 225 child victims, 90 victims of torture, 43 police officer victims, and 235 sexual assault victims would have lost the justice that juries, after a thorough and lengthy review of all the facts, had granted them. In my book The Humanity of Justice I explain to those outside of the criminal justice system the inherent value of capital punishment:

There is no more enlightening crucible for the values inherent in the criminal justice system than the debate over capital punishment. I find no irony in the assertion that our society needs the death penalty to definitively assign the ultimate value of human life; yet I fully respect the opinions of death-penalty opponents who argue their own moral stance that 'life is life.' For me, however, it's far less contentious to argue in favor of the death penalty when an innocent child has been tortured and murdered.

There's a moral imperative to use the death penalty where it's legal and administered in a fair and just manner. If virtuously and evenhandedly requested by prosecutors and imposed by juries, I believe that the death penalty strives for a moral proportionality (i.e., does the punishment morally fit the severity of the crime?). It's my sincere belief that juries are neither careless nor arbitrary about capital punishment decisions. In fact, as society's understanding and (might I add) values have evolved, so has the depth of consideration that goes into whether or not to use the death penalty, reflected in the US Supreme Court's decision to exclude juveniles and the mentally retarded. But when the written law itself fails to give us a clear framework that allows juries to apply capital punishment to cases they deem the most morally culpable, we have a problem.

To truly contemplate any intensely debated societal issue (such as capital punishment), the role of shared human values must be considered, digested, and appreciated. Those who deliver the most persuasive arguments, whether in favor of, or opposed to, the death penalty don't usually turn to dry analytics to persuade others. Instead, they're more likely to champion their position by pointing out commonly held values, and by stirring our emotions around the word 'justice.'

New York Law School Professor Robert Blecker, a respected and central figure in the issue, is an outspoken proponent of capital punishment. He argues that some murderers kill with such unbridled cruelty, such depravity, that the only societal response to ensure justice is to execute them, noting: 'Some crimes and criminals are objectively worse than others and deserve greater punishment.' Blecker calls this a 'moral fact,' asserting that justice is 'an end in itself' and that society has a duty to seek justice for the sake of justice. This position looks at the crime committed against the victim and society, period -- and takes away all the analyses, costs, benefits, and so forth, regarding capital punishment. In other words, the focus should be solely on what the criminal has done and society's just response or application of proportional punishment.