Capital

I'm reading Politics, by Hendrik Herzberg, a columnist for the New Yorker, and formerly the New Republic. Herzberg may appropriately be called "liberal," as distinct from "left wing," which means in part that he tends to make balanced arguments, even when they do not conform to an ideological position. Sometimes this plays him for a bit of a patsy, since he seems to have thought that Bush and company behaved well in the few months after 9/11, something that no left winger would concede, and history suggests that the knee jerk leftists may have had a point.

But I want to examine Herzberg's essays about capital punishment here. His liberal moderation forbids him from calling it "state sanctioned murder," and he notes that this would be similar to calling incarceration "state sanctioned kidnapping." (The actual analogous crime is "false imprisonment," however; make of that what you will).

Then there are the usual arguments about accidentally executing the wrong man, and how capital punishment actually demeans us, the rest of society, which is true, but only from the liberal perspective. Conservatives and right-wing ideologues actually glory in that demeaning; it's part of their vision of how society should operate.

But there is an argument that Herzberg doesn't make that I heard once from a capital punishment opponent whose name escapes me, and it is a much more powerful argument against that barbaric practice. That capital punishment is capricious is a feature, not a bug, in this view, and I find it persuasive.

We see the mechanism displayed in popular culture repeatedly, in the procedural television shows that have become so prevalent, from all the Law and Order flavors to the various CSI clones. Somebody dies and the interrogating authority figure brings up the death penalty as a threat, to shake loose information, or perhaps to force a plea bargain from the suspect. Of course in these shows the accused "perps" are almost always guilty, so it's all just part of the tools of the trade.

But in real life, the accused are frequently not guilty, at least not of the crime for which they are accused, and therein lies the problem. Because the threat of the death penalty can make an innocent man cop a lesser plea, as death is permanent, while the lesser crime allows at least some future.

Moreover, sometimes prosecutors know this, they know that the accused hasn't done this particular crime, but they are sure that he has done something for which he deserves punishment. Thus does the death penalty make a mockery of the idea of the rule of law, substituting the opinion of a D.A. for that of a judge and jury. It is a system that is made for abuse, and abused it certainly is.