Professor David Dow can lay claim to being the nation’s foremost death penalty opponent. He is well published on the topic (His most recent book is Executed on a Technicality: Lethal Injustice on America’s Death Row), he is a respected scholar (he teaches at the University of Houston Law Center), and he has represented more than 75 death row inmates in their efforts to avoid execution. If anyone should be able to articulate an iron-clad ethical case against capital punishment, it is s him. Yet in a recent op-ed piece in the Washington Post, Dow merely proved once again that the anti-death penalty arguments at best cut both ways, and at worst miss their target completely.

Dow’s column begins with criticism of the anti-capital punishment camp’s obsession with proving that innocent people have been executed rather than pressing more persuasive arguments. He is certainly right about that, just as he’s right that capital punishment advocates are disingenuous to claim that it has never been proven (that is, proven by DNA analysis) that an innocent prisoner has in fact been executed. Of course states have executed innocent prisoners. But if the occasional miscarriage of justice is to be used as a decisive reason to ban capital punishment, how can one avoid using the same argument to ban life-imprisonment, or any serious penalty for any crime? The standard answer to this is, “If the State is going to take a life, it should be held to an absolute standard.” Well then, taking 50 years of someone’s freedom and making them live in a penitentiary hell-hole with killers and felons should require a similarly strict standard. Requiring perfection essentially renders any government imposed punishment impossible. If errors were common, if innocent people were routinely executed, then this line of opposition would be strong one. But even Dow concedes that even by the most skeptical analysis, most death row inmates are guilty.

Dow then lists what he believes are the best arguments against capital punishment, in order of persuasiveness. They are:

1. “Killing is wrong”.

To begin with, Dow is either making a very controversial absolutist moral assertion or being sloppily generic. Is he arguing that all killing is wrong—in a just war, in self-defense, in abortions, in assisted suicide? If so, he’s made his task harder rather than easier, for that position is never going to gain universal or even majority support, even by ethicists. The Scoreboard will assume that Dow was being uncharacteristically imprecise and that he means “killing is wrong” when it does not involve self-defense or the other supposed exceptions. But the societal conviction that “killing is wrong” is also a justification for capital punishment, a strong one.

In Germany, a man convicted of killing and eating someone he met over the internet was initially sentenced to just eight and a half years in prison,* sending a very definite message about how much value that culture placed on human life. The message was considered dangerous enough that a judge ordered a retrial (this could not happen in the U.S.) so the confessed cannibal could get a more appropriate sentence, illustrating the obvious principle that the more serious a society considers a crime, the harsher the punishment must be for committing it. Yes: killing is wrong. Premeditated killing is worse, killing with unusual cruelty is worse than that, killing the weak and defenseless is worse still, and killing multiple victims is clearly worse than killing only one. If a premeditated murder of one victim can only be punished by life imprisonment, how does society signal its revulsion and anger at the crimes of the BTK (“Bind them, torture them, kill them”) serial killer Dennis Rader, Oklahoma City bomber Timothy McVeigh, the D.C. snipers, or Osama Bin Laden? Logic demands that their murderous crimes must earn them the pinnacle of our justice system’s available penalties. If the death penalty is unavailable, that pinnacle becomes life imprisonment by default. But it is unjust to inflict the same punishment on a one-time, garden-variety murderer as on a mass murderer, so his sentence must be less…twenty years, perhaps. Or maybe two murders get you twenty years, and one only ten. Ten years for murder….and now what is an appropriate for armed robbery? Kidnapping?

Yes, killing is wrong. And the best way for society to make that clear is to appropriately punish those who kill. Without a death penalty, that is impossible.

2. “The death penalty is unfair: the system favors white skin and devalues dark; it favors the wealthy and penalizes the poor.”

At the risk of being flip, the Scoreboard’s answer to this is, “Fine, then let’s make it fairer so we execute more white and rich murderers.”

Dow’s “second best reason” is not really an argument against the principle of capital punishment, but an indictment of the administration of it. The fact that white and wealthy murderers avoid execution has no more bearing on the validity of the death penalty as a punishment for murder than the fact that rich murderers are more likely to be acquitted (See: “Simpson, O.J.,” and “Von Bulow, Klaus”) is an argument for not bringing murder cases to court. Dow himself states that the vast majority of those on death row are guilty of murder. Thus it is fair that they be punished with the appropriate penalty. What is not fair is that others escape that penalty.

It is also a little disorienting for crusading lawyer-professors like Dow and Alan Dershowitz (who received a king’s ransom to help Von Bulow avoid punishment for his wife’s suspicious death) to condemn the rich-poor disparity in execustions when they themselves play a key role in creating it, often collecting impressive fees in the process.

3. “It tempts the government to cheat, and the government does cheat routinely; police lie and prosecutors withhold evidence.”

This is standard criminal defense attorney rhetoric. To the extent that it is true, it is certainly exaggerated. True or not, it still does not address the ethics of the death penalty. Dow is accusing un-named prosecutors of crimes of their own, but what is his point? Everyone agrees that innocent, framed and railroaded prisoners shouldn’t be executed. Dow agrees that most death row inmates aren’t innocent. The debate is supposed to be about whether capital punishment is justified for the guilty ones. And if Dow is arguing that the BTK killer would deserve to avoid execution if a police officer lied to get him convicted, that is a different issue entirely.

4. “It is economically unsound; we have failing public schools, citizens without adequate health care and potholes in our streets, yet we squander a billion dollars carrying out unnecessary executions.”

• Who says the executions are “unnecessary?” The Scoreboard believes that it is necessary to execute certain types of murderers in order to maintain the principle that taking a life is worse than other crimes.
• Dow is inaccurate: we “squander billions of dollars” allowing people like Dow to contribute to an endless appeals process whenever the death penalty is involved. If it is money he is concerned with, that could be easily addressed by carrying out executions within a year of the death sentence. Keeping murderers alive and in court is far more expensive than killing them.

The Ethics Scoreboard is still eager to hear a compelling and logically consistent ethical argument against capital punishment, as it would dearly love to embrace Clarence Darrow’s plea for civilization to embrace forgiveness and mercy as its highest values if it could only be convinced that this ideal violates both human nature and the requirement of order in society. But if David Dow, with his ability, experience and credentials, can do no better than this, that argument may remain permanently elusive.

*From blogcritics.org, a May 9, 2006 article by Eric Olsen: “…Meiwes had been sentenced to eight-and-a-half years in prison in 2004 after being found guilty of the manslaughter of Bernd Juergen Brandes…The pair met after Berlin engineer Brandes, 43, replied to an Internet chat room notice in which Meiwes solicited “young, well-built men aged 18 to 30 to slaughter,” in March, 2001. Meiwes apparently waived his demographic parameters in the interest of expediency.The former German army sergeant had eaten 20kg of the former Brandes accompanied by potatoes and a pepper or wine sauce and served on “good crockery” before he was caught in December, 2002.A two-hour videotape of the “encounter” shows Brandes preparing for his impending demise by drinking a large quantity of alcohol and cold medicine, and swallowing twenty sleeping pills. Brandes allowed Meiwes to sever his penis from his body and fry the unfortunate digit, before they attempted to dine on it together. Sadly, Brandes passed out from loss of blood before he could eat himself. Meiwes then stabbed Brandes in the neck, carved up the corpse, froze pieces of it, and continued eating Brandes for several months thereafter.Prosecutors claimed Meiwes killed his victim for his own sexual gratification, saying in court he “slaughtered his victim like a piece of livestock and treated him as an object of his fancy.” Meiwes’ lawyer admitted his client had a fetish for human flesh, but claimed he was no danger to society; a claim somewhat contradicted by the flayed computer engineer and the cannibal’s own admission that he still had fantasies about devouring the flesh of attractive young people.”