April 29, 2005
Is the Death Penalty Making a Comeback?
Posted by Christine Hurt

So far today I have read that the governor of Massachusetts has introduced a bill that would reinstate the death penalty in cases where there is "no doubt" as to the defendant's guilt and that a columnist in Iowa is looking to garner support for reintroducing the death penalty there.  Tung Yin believes that anti-death penalty advocates may have some good arguments, but this is not one of them:  Putting defendants to death for murder is wrong because the state is simply repeating the underlying wrong.

I have actually heard this argument made more articulately and fairly convincingly.

In the U.S., murder holds a special position in our system of criminal laws (no statute of limitations, only crime deserving of the death penalty), and the reason often stated by courts is that murder is inherently unique among crimes.  If you take the life of another person, that person can obviously never recover.  Murder is irrevocable and unremediable.  In fact, even heinous crimes like rape and torture are seen as different than murder.  So, as courts have explained that the death penalty should be reserved for murder because killing another human being is completely different than any other act because of its irrevocability and invasiveness, that leads one to ask the same questions about the death penalty itself.  If ending a human being's life is so profound as to be categorically different than all other criminal acts, then we should not blithely include ending a human being's life as an appropriate punishment for that criminal act.

The argument does not center around murder being merely a crime, so the government should not commit a second, identical crime by imposing the death penalty.  As Tung points out, the government has the authority to do many things in specific circumstances that are otherwise criminal, such as imprisoning people, seizing property for failure to pay taxes, and entering dwellings without consent.  Instead, the crux of the argument focuses on the profundity of ending human life as a rationale for treating murderers more harshly as also being a rationale for abolishing the death penalty.  Perhaps this is not a perfect argument, but I think it has more legs than Tung gives it credit for having.

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