Dennis Prager floats an interesting idea: allowing citizens to indicate in advance whether they wish to pursue the death penalty in the the event of their being murdered. It would be like checking the organ-donation box on your driver’s license.
Mr. Prager remarks:
I can’t think of one good argument against it ”” unless you’re an abolitionist who is fearful of seeing red.
I see another objection: if a society decides that death is an appropriate punishment (and more importantly, an appropriate deterrent) for certain awful crimes, then it has an interest in not having its authority, and its power of deterrence, undermined by those who might wish to opt out.
That said, though, I think it’s not a bad compromise, in that it provides a sort of conscientious-objector status for those who object to capital punishment. (It’ll never fly, of course.)
Comments?
12 Comments
To what extent would the victim’s wishes matter legally? I suppose they might impel a prosecutor to try harder for the death penalty, and might provide some emotional sway for a jury, but isn’t the jurisprudence (both state and federal) already written up in such thorough detail that the victim’s postmortem wishes would carry almost no legal weight? There seems to be very little difference between “the victim wanted this” and “the victim would have wanted this.”
There’s also the chance that such a thing might backfire: the victim might come off looking like a vindictive bastard/bitch, which could increase the jury’s sympathy for the murderer.
And what if the victim had checked “Yes: prosecute fully,” but then fell in love, saw the world through rose-colored glasses, and repented of his choice but failed to make the proper change on his card? This gets complicated.
I assume that If Mr. Prager’s plan went into effect, the law would be that there would be no execution if that were the victim’s choice.
Here’s another problem: what if the murderer kills two people, and one had opted in while the other opted out?
It’s putting the victim on the jury, and therefore it’s wrong. There is a reason why the father, say, of a murdered child does not appear in judgment of the murderer. When asked what he would do to someone who raped and murdered his wife, someone very wise (forget who) answered, “I would torture him slowly until he died. That’s why a civilized society won’t put me on the jury.”
Dom, I see it more as an opt-out than an opt-in: it would of course only be applicable in states where the death penalty was available, and so becomes more of an opportunity for mercy than vengeance.
I was struck by the following passage in Prager’s post:
As dark as thoughts of one’s own murder may be, we all think about it. And I don’t think I speak only for myself in saying that I would rest just a tiny bit better knowing that if I were murdered, my murderer might not be allowed to watch TV; read books; …
Is this the common American experience? The only time in my life when I gave any thought to the possibility of being murdered was at the height of the IRA bombing campaign in the 1970s when I lived in London.
Side-stepping the question of whether we should have the death penalty in the first place, it’s a dumb idea.
Society has the right of retribution as well as the individual, regardless of the nature of the offense or its punishment.
it provides a sort of conscientious-objector status for those who object to capital punishment.
I don’t see it as doing that. It would do that, if we lived in a country which had capital punishment. But since most of the people in America live in states where capital punishment has been either de facto or de jure outlawed, the real effect of this proposal would be to give a voice to death penalty supporters. You’d be able to speak from the grave to say “I want the person who murdered me to be put to death”.
it would of course only be applicable in states where the death penalty was available
Why “of course”?
For exactly the reason you mentioned. The only way something like this could ever be enacted would be as an opt-out; no legislature in a non-capital-punishment state would ever just allow a subset of its citizens to invoke the death penalty on their own say-so.
Yes, Peter, that’s the point I made in the post, right after the quoted passage from Mr. Prager. (Though I wouldn’t put it quite the way you do; I get a little queasy when we start talking about “society” having “rights”.)
Well, sort of. My point is that there is a general principle that the victim of a crime does not get a vote in deciding the punishment of the criminal, and there is nothing unique about either murder or capital punishment which would exclude them from this principle.
The only way something like this could ever be enacted would be as an opt-out; no legislature in a non-capital-punishment state would ever just allow a subset of its citizens to invoke the death penalty on their own say-so.
I’m pretty sure that Prager – who does specifically say that this would apply everywhere for everyone and not just for anti-death penalty people in Texas – was engaging in a thought experiment and not making a serious legislative proposal.