- The Washington Times - Tuesday, January 21, 2003

Illinois Gov. George Ryan's decision just days before his term ended to commute 163 death sentences to life imprisonment looks like a harbinger of capital punishment's imminent abolition.
This is especially so given some other developments. Maryland Gov. Paris Glendening, like Mr. Ryan, declared a moratorium on executions in his state last May, pending a comprehensive review of capital cases. They've now been reviewed by a University of Maryland criminologist, and they stink. Geography and race where it was done and who it was done to matter, when obviously they shouldn't.
On a national level, death row's incoming class in 2001 was smaller than any previous year's since 1973. What is more, more inmates left death row than entered it in 2001. This hasn't happened since 1976.
Against such a backdrop, however, most Americans favor capital punishment. In a Gallup poll conducted in October of last year, 70 percent of respondents replied positively to the question "Are you in favor of the death penalty for a person convicted of murder?" Though down from its mid-'90s peak, public support for capital punishment is strong. What gives?
It's a moral issue, stupid. The death penalty is something Americans want to get right, not rid of.
To be sure, a lot is wrong. Americans should not tolerate incompetent representation in capital cases nor any wrongful convictions whatsoever, righted with DNA evidence or not. They should not tolerate what passes for justice in Illinois, where a murderer in a rural district is 5 times likelier to be sentenced to death than a murderer in Chicago. But they will certainly not tolerate letting someone like Timothy McVeigh or John Allen Muhammed live out his life in jail.
Americans' commitment to capital punishment is rooted in a moral belief about its justness, not in empirical observations about how fairly it is administered or whether it even deters crime. Govs. Ryan's and Glendening's findings, though worrisome, miss this critical point.
Thinking it cannot be gotten right, of course, leads some to think it should be gotten rid of. This was Mr. Ryan's view. Announcing his decision to commute all 167 death sentences in Illinois, Mr. Ryan said "If we haven't got a system that works, then we shouldn't have a system."
Against this view is one which says, as philosopher Ernest van den Haag put it, "Unequal justice is still justice." A black man who kills a white man is not less guilty or less deserving of punishment simply because a white man who kills a black man escapes it. Assuming there's nothing morally wrong with a death penalty, truer equality would require more death sentences for those eligible for them. "Justice is a work in progress" says Joshua Marquis, co-chairman of the National District Attorneys Association's Capital Litigation Committee. This seems to be a majority view in America, and understandably so. America is a work-in-progress itself of liberal democratic ideals.
This means Americans will remain uneasy about how fairly a punishment like death is administered, but only because they believe in a death penalty to begin with and have an ideal model of one in mind. This is also why Americans may tolerate moratoriums on executions but will not support an outright abolition of capital punishment. A moratorium's true effect and purpose, after all, is to lend executions more legitimacy when they resume. Which they might. Gov. Ryan's successor, Democrat Rod Blagojevich, called his mass-commutation "a big mistake." Maryland Gov. Robert Ehrlich pledged to lift Mr. Glendening's ban on executions when he took office.
Twelve states in America have abolished capital punishment. Of 38 others, six have not executed anyone since 1976. Eighteen have executed 10 or fewer offenders since then. Texas and Oklahoma alone were responsible for more than half of all executions in 2001. This adds some perspective; America is no killing machine.
Capital punishment, should it end, will do so with a whimper rather than a bang. State attorneys, quietly, just won't seek death sentences. Those on death row will have their sentences commuted gradually, or maybe die a natural death before an arranged one. But Americans will not do without a death penalty entirely, because there are cases like Timothy McVeigh's in which we're united in thinking justice and morality demand a death sentence.

Hans Allhoff is a graduate student in philosophy at the London School of Economics & Political Science in England.

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