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credit: spectator.org

As regular readers know, I have, of late, taken to posting articles on Tuesdays relating to the Second Amendment and the issues revolving around it. Today I depart—somewhat—from that tradition with a few observations about the death penalty, occasioned by the controversy over the attempt by Arkansas to put to death eight men long ago sentenced to death. I’ll provide some background on them shortly, but first, a disturbing indicator of how bizarrely political the issue has become from the Volokh Conspiracy, via the Washington Post:

On Friday, Arkansas circuit judge Wendell Griffen granted a temporary restraining order barring the Arkansas Department of Correction from proceeding with any executions using vecuronium bromide as a part of its three-drug lethal injection protocol. Within 24 hours, a federal judge issued a separate order likewise barring Arkansas from proceeding to execute anyone via lethal injection. The state had planned to conduct seven executions in a span of 11 days.

Shortly after issuing his order, Griffen joined an anti-death-penalty protest in front of the Arkansas governor’s mansion. As one local news channel reported:

After barring Arkansas from executing eight inmates in rapid succession because of a dispute over how it obtained one of its execution drugs, Judge Wendell Griffen went to an anti-death penalty rally, where he made a stir by lying down on a cot and binding himself as though he were a condemned man on a gurney. . .

State officials protested Griffen’s conduct, charging that it suggested Griffen was not capable of impartiality in capital cases.

You don’t say. A judge who issued a restraining order preventing the executions not only attended an anti-death penalty protest, but actually, actively participated in a bit of street theater? Why would anyone think him biased? In a move that might tend to restore a little faith in our judicial system, at least in Arkansas, the Arkansas Supreme Court acted:

Monday, the Arkansas Supreme Court removed Griffen from all pending death penalty and lethal injection protocol cases and referred him to the state’s Judicial Discipline and Disability Commission to determine whether he violated the Code of Judicial Conduct.

The court’s order reads:

“Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and confidence.” Ark. Code Judicial Conduct, Preamble.. [skip]

To protect the integrity of the judicial system this court has a duty to ensure that all are given a fair and impartial tribunal. We find it necessary to immediately reassign all cases in the Fifth Division that involve the death penalty or the state’s execution protocol, whether civil or criminal. The administrative judge shall be responsible for determining the appropriate division(s) to receive these cases. In addition, this court instructs the Sixth Judicial District to submit a new administrative plan to this court for approval by close of business on Tuesday, April 18, 2017 that reflects the permanent reassignment of all cases referenced above, future cases involving this subject matter, and any other changes in case assignment to ensure all litigants in this district receive a fair and impartial tribunal. Judge Wendell Griffen is referred to the Judicial Discipline and Disability Commission to consider whether he has violated the Code of Judicial Conduct.

Well, good. By way of Fox News, a bit of background on a few of the men sentenced to death temporarily spared by Judge Griffen (photos: Arkansas department of corrections):

Don William Davis, 54
Davis has been convicted in the brutal death of Jane Daniel. Daniel was in her home when Davis broke in and shot her with a .44-caliber gun. [skip]

Jack Herold Jones, Jr., 52
Jones was initially scheduled to be put to death April 24 at 9 p.m. CDT. Jones has spent the past two decades on death row for killing Mary Phillips and trying to kill her daughter, Lacy, during a robbery at an accounting office. Phillips was found naked from the waist down with a cord from a coffee pot tied around her neck. Lacy was left for dead but woke up as police photographed her. Jones had taken Lacy to the bathroom and tied her to a chair. Lacy cried and asked Jones not to hurt her mother. Jones told the child, “I’m not. I’m going to hurt you.” He then choked her until she passed out and hit her in the head with the barrel of a BB gun. [skip]

Ledell Lee, 51
Lee is sentenced to die for the 1993 murder of Debra Reese, his neighbor. He beat Reese 36 times with a tire tool her husband had given her for protection. Lee was apprehended less than an hour after the grizzly death, trying to spend the $300 he had stolen from her. DNA evidence has also linked him to the disappearance of Christin Lewis, 22. Lee is also serving time for the rapes of a Jacksonville woman and teenager. [skip]

Marcel Williams, 46
Williams was found guilty of the rape and murder of Stacy Errickson. Williams abducted the mother of two when she stopped for gas in Jacksonville, Fla. He then drove around to multiple ATMs and had her take out $350. Errickson never arrived at work that day nor did she pick up her child from the babysitters. Her body was found badly beaten and bound in a park two weeks later.

Precisely the kind of people anti-death penalty advocates delight in preserving for the good of humankind. To be fair, they make a variety of arguments, some more rational than others, and not all are raving progressives, determined to prevent criminals from being prosecuted in the first place, doing all they can to damage the police, working assiduously to free the worst felons from prison, and opposing the rule of law in general. Let us, gentle readers, examine the primary arguments against capital punishment.

Capital Punishment Is Playing God:

A pillar of our legal system is the right to self-defense. This right exists, in part, because it is God-given. If the right did not exist, if it did not pre-date the Constitution and the Second Amendment, which merely acknowledges the right and secures, in law, the means to act on that right, it would have to be invented in any society that embraces the rule of law. Were this not so, every man’s life would be forfeit to anyone strong and cruel enough to take it. The elderly, the infirm, children, and women, particularly, would be subject to violent sudden death at any time and place. This is the ultimate women’s issue, as I noted in Guns: Securing the Right To Self-Defense And Life, Part 4:

Sometimes, the mere threat of deadly force does not suffice, as in the January, 2013 case of a woman at home alone with her 9 year-old children when a burglar armed with a crowbar and trailing a long criminal record broke into her home during the day.  Armed with a revolver, she hid her children and herself in the attic, but the criminal searched every room of her large home, hunting them down, and when he opened the attic door and advanced, she fired, striking him with five of six rounds.  He was knocked to the floor. Holding an empty handgun, she was able to bluff him, threatening to shoot him again until she could flee the house–her own home–with her children.  He eventually got up and fled, soon crashing his car nearby.  Who could legitimately argue that society would have been better served by the deaths of the mother and her children, that the burglar–who did survive–might practice his trade unmolested?

Many that argue against capital punishment quote the Commandment: “Thou shalt not kill.” Either they misunderstand the language and intent of the Creator, or understanding it, choose to use it to mislead. The correct translation is “thou shalt not murder,” and the Bible clearly and repeatedly differentiates between murder, which is unlawful killing, and justified killing. Our legal tradition embraces this difference. All killing is not legally, and most importantly, morally, wrong. Killing in self-defense is both lawful and moral.

In our constitutional republic, all power given to government derives from the willing consent of the people. If people have the power to kill under lawful circumstances, that power too is given to government, which acts on their behalf with their consent. Establishing and maintaining a judicial system is one of the essential functions of government, as is maintaining a police force, functions individuals cannot themselves sustain.

Government’s ability to punish—excluding cruel and unusual punishments—is merely an extension of the rights of individuals, and the power to lawfully kill, the logical, historic and necessary endpoint of the power given government by the people, power which begins with the Creator. It can be easily argued that life imprisonment is the crueler punishment, but punishment always has as its goal justice. Lawful killing, whether done by the individual in the heat of the moment in self-defense, or by the state, after due process and in defense of the people, is moral and necessary.

Remember too that it is the same people opposing capital punishment that believe they have not only the right but the duty to tell others what they should say, what they should think, what they should be allowed to see and hear, and what they should be allowed to do. That’s an odd sort of morality

Capital Punishment Is Not A Deterrent:

Much has been written about this effect, though antis deny it exists. If the possibility of death does not deter, why do convicted murders struggle for so long to avoid their lawfully imposed fate? Why do their supporters struggle so ceaselessly to deny the will of the people? Is it the self-preservation instinct? If so, why would anyone knowingly do something any rational person must know could cause their death?

My police career has taught me punishment in general, and the death penalty in particular, are powerful deterrents. The hundreds of criminals with whom I dealt were quite clear about their beliefs. They would not commit certain kinds or numbers of crimes because they knew well the more serious punishments that would be imposed. A number of criminals told me they specifically avoided crimes and actions that might invoke the death penalty. They had no fear of a life sentence, because they knew life virtually never meant life or anything like it. A car burglar, for instance, knew he was facing five years for each burglary, but wouldn’t touch crimes like aggravated assault or rape that could result in ten or twenty five year sentences.

Why doesn’t life equal life? Consider the current craze of “sentencing” and/or “prison reform.” There will always be a substantial movement attempting to free the worst criminals and to decriminalize crimes. This is not to say there are not poorly written and unnecessary laws that should not be removed from the books, but it is rarely, if ever, those laws which are involved.

Obviously, there were—and are—people motived entirely by evil, and/or sociopaths who care nothing for the suffering and lives of others. For them, nothing, other than being caught and prevented from acting their will, is a deterrent. Even they, however, usually fear death. For such people, the existence of capital punishment would seem to be a necessity, unless one wishes to argue that since no specific punishment deters them, there is no point in imposing any punishment.

To deny capital punishment’s deterrence value is to deny human nature.

Life Imprisonment Is Sufficient:

Sufficient for what purpose? Without question, one of the great societal benefits of prisons is keeping criminals away from their future victims. There is no question that a relatively small portion of all criminals commit most crimes, which is why when they’re locked away, crime rates diminish, locally and nationally. If that’s the case, isn’t that an unassailable argument against capital punishment?

If that’s true, why do we have varying classes of crimes, and varying sentences within those classes? Why might felony drunk driving put one in prison for two years, while manslaughter might yield 20 years? Obviously, some crimes are more serious than others, and society has a greater interest in deterring, if possible, and if not, punishing those offenses. Keeping such people from committing additional crimes should never be undervalued. Capital punishment is reserved for the most heinous crimes. It expresses society’s collective beliefs and morality, our belief in the inestimable value of every human life.

Aha! If life is so valuable, how do we justify capital punishment? Whose lives were of greater value: Jewish victims or Nazi executioners? Communist murderers or their victims? Some people, by their actions, negate their value as human beings.

Some killers continue to kill in prison. Even though their victims are other felons, most do not deserve that fate. Even so-called life without parole is sometimes overbilled. Particularly vicious criminals have been pardoned or their sentences commuted, particularly if they somehow gain political favor. And of course, criminals often escape, and often commit additional crimes, sometimes, murder.

Ultimately, death should be imposed because it is warranted, because it is moral, because it deters, and to do less degrades not only the survivors of the victims, not only society, but morality itself. Only yesterday I heard a fatuous fellow on the radio definitively stating that the execution of killers does not give survivors closure. Consider this case, from Vengeance Is Mine, Saith The Lord:

Becky O’Connell, Forever 9-Years-Old (Credit: CBS)

SIOUX FALLS, S.D. –  Becky O’Connell left her South Dakota home on a simple errand: to go to the store for sugar so she could make lemonade.

When the 9-year-old didn’t return that day in 1990, panic gripped Sioux Falls. Parents kept their children indoors until the mystery could be solved.

And within hours, it was — with a gruesome outcome: Becky had been kidnapped, raped and stabbed to death.

Becky’s killer, 60-year-old Donald Moeller, is set to die Tuesday night by lethal injection in South Dakota.

Her mother, Tina Curl, has been steadfast in her wish to watch him die, raising money so she could make the 1,400-mile trip from her home in New York.

She says Moeller watched her daughter take her last breath, and she wants to watch him take his.

Before killing Becky, Moeller committed a variety of other vicious crimes. In fact, life in prison wasn’t sufficient deterrence:

Donald Moeller (Credit: CBS)

He was caught, charges were filed, and in time, Moeller would learn that prosecutors wanted to have him put away for life as a habitual offender. He was told that news on the day Becky O’Connell was murdered, Attorney General Marty Jackley testified to a state legislative committee considering the repeal of the death penalty in 2010.

Moeller’s actions after he left his lawyer’s office ‘clearly demonstrates why (the death penalty) is needed as a protection to the public,’ Jackley told committee members. ‘Donald Moeller … visited his defense lawyer and was told that, based upon a separate assault matter, that he would likely be serving life. He was told that on May 8 between 3 and 4 o’clock. At 5:30, 9-year-old Becky O’Connell went to go get candy and, shortly thereafter, was found raped, sodomized and stabbed to death.

Moeller was the last person Becky O’Connell saw–as he was raping and murdering her.  Somehow, one suspects Ms. Curl’s views on this issue are more reliable and convincing. It took many years, but she finally got her wish, her closure, if you will. By all means, take the link and read the entire article.

We Make Mistakes And Sometimes Execute The Innocent:

This is unquestionably true, and some would argue it’s the best possible argument against capital punishment. It is, rather, a weak argument.

I’ve read some of these cases, and find myself shaking my head in amazement. For anyone to be wrongly convicted of murder requires an almost unbelievable chain of stupidity, malfeasance, even malice. It requires the police to be either incredibly incompetent, or to be willing to falsify evidence on a grand scale. It requires prosecutors to ignore ethics and the law. It requires jurors to be lazy and even malicious, and it requires judges to ignore reason, the law, and to be themselves malicious. Yet it happens. Human beings make mistakes, and in capital cases, usually honest mistakes.

But none of this is an argument against capital punishment, but an argument for ethics, professionalism and strict standards of proof and justice, the standards that must be ignored or abused to convict the innocent.

Nothing involving human beings is perfect. We make mistakes, but the possibility of mistakes cannot prevent us from acting in the public interest, from doing our duty to our fellow man.

It is the very nature of capital cases that argues for capital punishment. Virtually no one is convicted of murder, sentenced to death, and executed the next day, the next week, or even the next year. As in the cases in Arkansas, it commonly takes decades, and judicial review after review, before anyone is executed. Tina Curl had to wait 22 years before Moeller’s appeals were finally exhausted. He, and virtually all convicted killers, have far more due process and virtually every possible benefit of the doubt. That same activist on the radio complained that capital punishment, with all its appeals is too expensive. As one of those that works to make it as lengthy and expensive as possible, he apparently has no sense of irony. It is the very nature of the process that assures the condemned will get every chance at review.

There’s an old, possibly apocryphal, story about Federal agents inquiring into the possibly suspicious death of a criminal of a rangy Texas (or Wyoming) Sheriff. The Sheriff asked: “Well, did he need killin’?” The point is not that the Sheriff was prejudiced or incompetent, but that he recognized that some people, entirely lawfully, may be—even need to be—killed.

Those of us that recognize the existence of evil, those of us that have stared it in the eye across interview room tables, that have chased it down dark alleys, that have fought it hand to hand, that have seen it leering at us from behind bars, knowing it will soon be released, have no doubt of the value and necessity of capital punishment. Evil must be opposed, defeated and destroyed. It cannot be reformed. It does not respond to job training. And it delights in the support of useful idiots, who it allows to live only because they, for the moment, make it possible for evil to flourish.

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