As I write these first few words, I dread the harangue that I foresee coming.  But write I must.

Doug Berman is always on the forefront of finding ways to ease prison overcrowding.  As before, we share that desire.  But that doesn’t mean that anything and everything that serves that end is a good idea.  We been here before too.

And so comes another law from another state that offers a solution :  Just execute them.  My head is spinning.

The Denver Post has an editorial against a law that would “authorize the death penalty for people who sexually assault a child 12 years or younger if DNA evidence links them to the crime.”  If I was ever to endorse the death penalty, it would be for raping a child.  But as much as my feelings toward sexual assault of a child might make me consider taking on the job of pulling the switch, it’s still a bad idea.

What’s interesting about this Colorado law is that it includes a DNA component.  People love DNA because it proves that the guy is guilty, thus removing any potential fear of killing an innocent defendant, a stumbling block to some (but not to enough, unfortunately).  Of course, crime lab DNA scandals, the broad array of collection and analysis errors and the potential of science to figure out one day that the statistical probabilities of positive identification via DNA (as opposed to positive exclusion) leave this scientific certainty slightly less than a sure thing. 

Berman is not happy with this editorial.  In his own words, “it drives him crazy.”  Nobody wants a crazy Berman running loose.

This editorial, in my view, highlights everything wrong with modern death penalty abolitionist arguments:

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  First, despite the usual denials by abolitionists that the death penalty could be an effective deterrent, the editorial uses a fuzzy and highly-suspect reverse-deterrence argument to contend that a capital child rape law could would hurt children. 

  
  

  
  

  Then, in an effort to save repeat child rapists from even the possibility of capital punishment, the editorial argues that other offenders (first offenders) should be subject to longer terms of imprisonment. 

  
  

  
  

  Throughout we get no real evidence or data, just false assertions and excessive confidence that life sentences (but not the possibility of death penalty) provide “the best way to protect children.”

This stuff drives me crazy and, as I have tried to explain in some prior posts, may promote the worst of all possible criminal justice worlds for children and everyone else.

I read the editorial.  While it may lack a certain depth of discussion that one finds in 47 page law review articles, it covers the bases.  And the basic arguments are all rational and logical.  Unless you don’t agree, in which case you call its arguments “fuzzy and highly-suspect.” 

What is it about the death penalty, or its positive side, the elimination of prison over-crowding, that sets people aflame?  It’s not like capital cases are inexpensive to prosecute; they cost a fortune.  It’s not like the fraction of people who might otherwise be put to death is going to make a dent in the prison population.  So why such zeal to kill?

If we look back to the wild west, for you Zane Grey fans out there, remember how they used to hang horse thieves?  A tad harsh to some, but you don’t steal another man’s horse, if you know what I mean.  Did it bring a swift and decisive end to horse thievery?  Unfortunately no. 

The pirates’ mantra was “dead men tell no tales.”  Neither do dead children.  I don’t want any more dead children.  Before someone can denigrate the argument that capital punishment for a sexual assault (whether second or twenty-ninth), guarantee me that no child will die as a result.  The potential that a lifetime in prison will not be adequate retribution for an animal who would harm a child is not enough to make it worthwhile to bring about one child’s death.  Not one.

Certainly, there are many people out there, in fact a majority of Americans, who feel that capital punishment provides justice, for society and the victims.  They don’t make me “crazy”.  I understand their position.  I just disagree with them.