- The Washington Times - Saturday, June 21, 2003

THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT

By Franklin E. Zimring

Oxford University Press, $30, 250 pages

REVIEWED BY BRUCE FEIN

As terrorist slaughters of innocent civilians capture headlines, it is altogether fitting that a commanding figure in academia, Law Professor Franklin Zimring, sallies forth with “The Contradctions of American Capital Punishment,” a book addressing capital punishment.

What should be done with the likes of Osama bin Laden and his satellite murderers who keenly relish wholesale homicides to further their morally nauseating quest to exterminate human rights and democracy and to enslave women as a tribute to male sexual depravity? What punishment is commensurate with Iraq’s reptilian Saddam Hussein’s countless crimes against humanity? Should unrepentant Zaccarias Moussouai, on trial for conspiracy to perpetrate the September 11 abominations, face execution if convicted?

Whether anything less than capital punishment for unspeakable crimes would cheapen the lives of the dead was a question confronted after World War II. A resounding “yes” was the answer at the Nuremberg and Tokyo war crimes tribunals, and reinforced by the conviction and execution of Adolph Eichmann at Jerusalem. Who could visit Auschwitz, Yad Vashem, and the Holocaust Museum yet lecture a Holocaust orphan that the death sentence for Herman Goering (who circumvented execution by suicide) was morally disreputable? And have you ever seen Amnesty International or the American Civil Liberties Union waving placards protesting the execution of Japan’s Hideki Tojo?

Mr. Zimring brings considerable credentials to the capital punishment debate: William G. Simon Professor of Law and Director of the Earl Warren Legal Institute at the University of California, Berkeley. He has also earned the coveted laurel of criminologist within professional circles, which adds gravity to pontificating about crime and criminals.

The criminologist, however, exasperates all but death penalty scourges in his latest authorship. He scampers away from the question of whether the death penalty is ever justified, and, if so, under what circumstances. His North Star is that the death penalty is a barbaric vestige of America’s historical fascination with lynching and vigilantism in the South.

Mr. Zimring accepts uncritically Caesar Beccaria’s critique of the death penalty as ” … the war of a nation against a citizen … It appears absurd to me that the laws, which are the expression of the public will and which detest and punish homicide, commit murder themselves, and in order to dissuade citizens from assassination, commit public assassination.”

But the absurdity lies with Beccaria’s analysis.

Every civilized legal regime justifies killing in self-defense or in defense of others. Suppose at the tourist filled Lincoln Memorial a police officer spots a dozen suicide bombers hoping to better the instruction of their soulmates in Palestine. He shoots and kills all 12 and is bemedalled by President George W. Bush. Doesn’t it seem more apt to describe the policeman’s alertness to duty as self-defense than assassination?

Beccaria’s moralizing seems fundamentally defective by refusing to take sides between the firefighter and the fire. According to his thinking, the morally superior way to have answered the aggressive wars of Adolf Hitler and Tojo would have been to capitulate in the name of peace in lieu of fighting back in kind. Better a thousand Pearl Harbors than one Hiroshima or Nagasaki. But if that motto ever became ascendant it would mark the end of civilization.

Mr. Zimring summons as a further witness against the death penalty the model of Western Europe, which sports such moral giants as France, Germany, and Belgium. He notes the absence of any serious political opposition to ending capital punishment there.

One explanation might be the moral softness that afflicts Western Europe, partially corroborated by Europe’s flaccid response to genocide and ethnic cleansing in Bosnia and Kosovo.

The United States was required to cross the ocean to do the heavy human rights lifting. Mr. Zimring never entertains European effeteness as a possible explanation for its gradual disaffection with the death penalty. He simply assumes that any civilized nation would find the punishment abhorrent.

The smug professor is convinced that his moral beacon has sparked the beginning of the end of capital punishment; a brighter sun will shine on mankind when a consensus emerges that executing Osama bin Laden for his crimes against humanity would be disproportionate to the carnage he has inflicted: “The end game in the effort to purge the United States of the death penalty has already been launched. The length and intensity of the struggle necessary to end the death penalty are not yet known, but the ultimate outcome seems inevitable in any but the most pessimistic view of the American future.”

With all due respect for Professor Zimring’s voluminous learning, his star gazing seems ill-founded. Associate Justice Potter Stewart similarly believed that no State would reenact a death penalty statute after all had been held constitutionally infirm in Furman v. Georgia (1972), but 38 did and were joined by the federal government. Outgoing Illinois Governor George Ryan recently commuted the sentences of all the State’s death row inmates with a polemic against capital punishment.

But an Illinois jury soon imposed a new death sentence in defiance of Ryan’s hectoring. And if, with the blessing of the Goddess of Justice, the United States captures, convicts, and executes both Al Qaeda’s bin Laden and Taliban’s Mullah Omar, I would wager the professor will not take to the streets to preach the immorality of the punishments to the men, women, and children who continue to weep over their dastardly villainies.

Bruce Fein is a founding partner of Fein & Fein (www.feinand-fein.com).

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