Thursday, April 29, 2004

Quickly, because I've got two finals next week.

I've got a long letter in this week's Jewish Press on the death penalty. Steven Plaut wrote a piece in the Press a couple of weeks ago in favor of the death penalty. He said some things which ranged from the outright falsehood to the highly debatable. They published it with Plaut's response, which will get a counterresponse from me in next week's issue if I can help it.

By the way, I'm against, in case it's not clear from the letter. I say in the letter that there are extreme circumstances where I'd consider the death penalty conditioned on a whole lot of things going right with the American judicial system. Anyway, enjoy.

Plaut's response can be found below my letter and one other on the subject at the link provided.

I was somewhat disturbed, if not surprised, to
read Steven Plaut`s defense of capital punishment
(“Preserving Human Dignity Through Capital
Punishment,” Jewish Press, April 9).

Mr. Plaut claims that there is an enormous
amount of evidence proving capital punishment is
an effective deterrent. I would like to know how he
came to this conclusion, especially since he so
brazenly dismisses the views of most legal scholars
that it is not an effective deterrent without citing a
single source for his contention. An article
discussing several inquiries into the question of
deterrence published in the University of
Pittsburgh Law Review in 1999 (see 60 U. Pitt L.
Rev 321) found no empirical evidence to support
the deterrence theory and no difference in the
homicide rate between states that have the death
penalty and states that do not. Given Mr. Plaut`s
penchant for bashing left-wing opinions as lacking
empirical evidence, it is strange that he would offer
a claim of his own that is completely devoid of it.

It is particularly naive to argue that capital
punishment could deter terrorism, and completely
illogical to argue that it could deter suicide
terrorists. Islamic fanatics are clearly willing to die
to perpetrate atrocities. Why on earth would they
be frightened of the death penalty if they already
value death over life? Deterrence depends on the
perpetrator valuing life over death.

Mr. Plaut does what many conservatives have
been doing now that the theory of deterrence has
largely been disproved; he claims the death penalty
is moral. Perhaps it is. But the moral death
penalty, particularly as discussed in the Torah and
Gemara, assumes a compassionate criminal justice
system staffed by wise elders using the death
penalty sparingly and putting someone to death
only after a very high bar is met regarding
witnesses and testimony.

The Gemara says that a court that executes a
man once in seventy years is cruel. In my view, the
Jewish approach to the death penalty shows a
concern for evidentiary standards and due process
that far exceeds what we find in the Unites States.
Were these the values of the U.S. justice system, I
would consider supporting the death penalty in
extreme cases — though I fail to see why it is
implicitly any more moral and ethical than life
imprisonment. Must we define morality solely in
terms of extracting maximum retributive

The death penalty in the United States is not
administered in a way that is ethical or moral. Mr.
Plaut claims, totally incorrectly and again with
absolutely no source, that there is no serious
evidence that an innocent person has ever been put
to death in the U.S. Does Ethel Rosenberg ring a
bell? Sacco and Venzetti? DNA evidence has
exonerated many defendants on death row. Only
an ignoramus would fail to draw the obvious
conclusion: before DNA evidence was available,
innocent people were put to death. Mr. Plaut seems
totally ignorant of these facts. (His bizarre
argument that other government agencies and
activities kill people is beside the point. Those
deaths are unintended and accidental. The death
penalty is administered purposefully.)

Defendants can be convicted on as little as the
testimony of one witness in a circumstantial case.
Defense counsel is often incompetent, overworked,
and underpaid. And though Mr. Plaut may dismiss
this as more political correctness, those put to
death are overwhelmingly poor and
disproportionately minority; there is evidence that
shows that a minority defendant is significantly
more likely than a white person to be sentenced to
death for committing the same crime. This state of
affairs cannot be described as moral or ethical
under any reasonable definition of either term.

Mr. Plaut is entitled to make a moral case for
the death penalty. He is not, however, entitled to
ignore the facts or to arrogantly dismiss all those
who disagree with him as politically correct, or,
worse, as people who place the rights of murderers
above those of victims.

Michael Brenner
New York, NY


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