Date: Mon, 12 Jan 1998 19:42:24 -0600 From: Rick Halperin To: Multiple recipients of list Subject: death penalty news: USA Monday, Jan. 12, 1998--- the following articles have appeared recently in The Wall Street Journal: Why the Death Penalty Is Fair BY By Walter Berns and Joseph Bessette Jan. 9, 1998 The death penalty is much in the news. With jurors failing to agree on a sentence for Oklahoma City bombing conspirator Terry Nichols, he will escape the maximum legal punishment for his part in the deaths of eight federal agents (though an Oklahoma jury may eventually sentence him to die if he is convicted of murdering the 160 other victims). Meanwhile, Theodore Kaczynski's Unabomber prosecution continues its halting pace toward what all must now assume will be his execution -- after, of course, excruciating delays while the case is appealed to various courts. The U.S. Supreme Court has already refused the last challenge to the execution of spree killer Karla Faye Tucker, who on Feb. 3 will become the first woman to receive Texas's lethal injection -- unless, that is, Gov. George W. Bush decides not to sign her death warrant. Gov. Bush faces an enormously weighty decision, and so may take some comfort in the knowledge that signing a death warrant was a problem, too, for Abraham Lincoln. "You do not know how hard it is to let a human being die," he said, "when you feel that a stroke of your pen will save him." Lincoln's misgivings had nothing whatever to do with the legality of capital punishment; as he read it, the Constitution gave him the power to authorize a death sentence when it gave him the power to "grant reprieves." The opponents of capital punishment would applaud his all-too-human misgivings, but deplore his constitutional judgment -- which, as it turned out, is today shared by the Supreme Court. True, the court's 1972 decision in Furman v. Georgia held that, when imposed in an arbitrary or capricious manner, the death penalty violated the Eighth Amendment's prohibition of "cruel and unusual punishments." Because, under the state laws then in force, only an unfortunate few of those convicted of a capital crime were being sentenced to death, Justice Potter Stewart likened it to "being struck by lightning." The Constitution, he said, could not permit "this unique penalty to be so wantonly and so freakishly imposed." But this did not put an end to capital punishment. Within a few years, 35 states rewrote their death-penalty statutes, and in 1976, in cases from Georgia, Texas and Florida, the Supreme Court upheld their constitutionality. By narrowing the categories of murder for which the death penalty might be imposed, and by requiring separate sentencing hearings during which juries or judges would weigh evidence of aggravating or mitigating circumstances, the new laws ensured, again in Justice Stewart's words, that "sentences of death will not be `wantonly' or `freakishly' imposed." But the issue of arbitrariness has not died. In 1986, Jack Greenberg, writing in the Harvard Law Review, complained that capital punishment continued to be imposed in an "infrequent, random, and erratic fashion." More recently, Hugo Adam Bedau, perhaps the nation's leading academic opponent of capital punishment, denied that the new laws succeeded in "winnowing the worst from the (merely) bad" offenders. The few actually sentenced to death -- 5,553 since 1976, of whom 403 have in fact been executed -- are, he said, simply "the losers in an arbitrary lottery." The opponents have now gained support from an unlikely quarter. Writing in these pages last month, Princeton Prof. John J. DiIulio repeated the lottery analogy, asserting that the administration of the death penalty in the U.S. is, and is likely to remain, "arbitrary and capricious," and thus ought to be abolished. Because he is known otherwise to be a proponent of harsh punishment, Mr. DiIulio's judgment ought to carry weight. On this subject, however, he is surely mistaken. Rather than being arbitrary and capricious, the system now in place serves as a filter, reserving the death penalty for the worst offenders. This is demonstrably the case in Illinois. In August 1996, state prosecutors compiled a list of the 174 persons then on death row in Illinois, with a description of the murder (or murders) committed by each offender. A comparison of this information with the data on homicides collected by the FBI and the Justice Department's Bureau of Justice Statistics reveals the dramatic difference between the crimes committed by the offenders on death row in Illinois and other murderers: -- 20% of those on the Illinois death row committed murders during the commission of a rape or sexual assault, compared with well under 1% of all murderers; -- 10% of the condemned committed murders during a burglary or home invasion, compared with less than 1% of all murders; -- 13% of the condemned had murdered a child, compared with 4% of all murders; -- 37% of the condemned committed murders involving more than one victim, compared with 4% of all murders. These statistics do not succeed in conveying the truly despicable nature of the crimes committed by those on death row in Illinois. The first offender in this (alphabetically ordered) list murdered two Chicago police officers; the second murdered a Chicago police officer by running him down with an automobile; the third beat to death an 86-year-old woman with her walking cane; the fourth shot and killed four persons during a drug-related robbery; the fifth murdered his girlfriend's 16-month-old daughter by denying her food and exposing her to subfreezing temperatures; the sixth shot to death an 86-year-old man during a robbery; the seventh, while dressed as a priest, committed a murder-for-hire of an 81-year-old widow by shooting her twice in the back of the head; the eighth, during an armed robbery, shot and killed one man and wounded another; the ninth raped and murdered a 34-year-old woman as she walked to catch a bus; and the 10th shot and killed three men in a dispute over money. There are no barroom brawls here, no domestic disputes that got out of hand, no "heat of passion" crimes that are so common among homicides in the U.S. These are brutal, cold-blooded murders, often involving other felonies, and often committed against the most vulnerable of victims. An examination of the lists of those on death row in the other 37 capital-punishment states would probably show that they, too, reserve the death penalty for the worst offenders. Indeed, it could hardly be otherwise. In the post-Furman era, and at the insistence of the Supreme Court, the death-penalty states have carved out from first-degree murder (already a subset of all homicides) a still narrower category of the most heinous killings and have rendered them alone subject to capital punishment. This system, which imposes the death penalty on a few hundred of the 12,000 persons convicted each year of homicide, cannot be described as arbitrary or capricious. Nor can it be described as cruel. During his four years as president, and despite his misgivings, Lincoln authorized the executions of 267 soldiers and sailors, men sentenced to death for desertion or for sleeping on watch, but none of them so deserving of death as the men on the Illinois list -- to say nothing of mass murderer John Gacey; Richard Allen Davis, the killer of 12-year-old Polly Klaas; or, to bring this up to date, the notorious Timothy McVeigh. --- Mr. Berns is a resident scholar at the American Enterprise Institute in Washington. Mr. Bessette is an associate professor of government and ethics at Claremont McKenna College in California. Why the Unabomber Must Die BY By James Taranto Jan. 6, 1998 Both the New York Times and the Washington Post last week editorialized against the death penalty for alleged Unabomber Theodore Kaczynski. It was the least they could do for one of their writers. All right, I'm not being completely fair here. After all, when the Times and the Post collaborated in publishing the Unabomber's 35,000-word manifesto, it was at the request of the FBI, which thought -- correctly, it turns out -- that giving in to his demand for publication might help catch the culprit. But it also gave the Unabomber a national forum for his crackpot views. I am of the view that simple justice demands the bomber pay with his life for snuffing out three innocent people in his campaign of political terror. But there's another compelling reason why, if Mr. Kaczynski is convicted, he should be put to death as soon as possible: This man must not be rewarded for his alleged crimes by being allowed to become a pundit. Mr. Kaczynski's reported resistance to an insanity defense suggests that he is interested above all in having his "ideas" taken seriously. And it's depressingly easy to imagine him a few years hence, serving a life term or waiting endlessly on death row, parlaying his barbarous celebrity into a stint as a commentator. These days, a murder conviction can be a helpful credential for a writer seeking a home, say, on the pages of the Minneapolis Star-Tribune or the airwaves of the far-left Pacifica radio network. Here, I am being completely fair. In 1995 and 1996, the Star-Tribune published three commentary pieces by Mumia Abu-Jamal, whose author's credit cheerfully describes him as "a freelance journalist and inmate on Pennsylvania's death row." Abu-Jamal has also written for the Baltimore Evening Sun, the Chicago Tribune and the (Portland) Oregonian. Last year Pacifica aired 13 of his commentaries on a show called "Democracy Now!," having broadcast an earlier series in 1994 that was slated for National Public Radio, which, in a bout of good sense, backed out. Abu-Jamal, a black separatist who has become a cause celebre in the fever swamps of the political left, was convicted in 1982 of fatally shooting 25-year-old Philadelphia policeman Daniel Faulkner. At the time of the 1981 murder, Abu-Jamal was an out-of-work radio journalist driving a taxi. Killing Officer Faulkner certainly proved a good career move for this would-be writer: In addition to his radio and mainstream newspaper work, he has published two books and has written regularly for several black newspapers. Like Abu-Jamal, the Unabomber capitalized on his crimes to draw respectful attention in major media to his extreme political views -- even while he was still at large. In August 1995 the New York Times published an op-ed article by author Kirkpatrick Sale, who, based on prepublication excerpts of the bomber's manifesto, described him as "a rational man [whose] principal beliefs are, if hardly mainstream, entirely reasonable." Mr. Sale urged society to "treat him seriously and publish his manifesto in full" and the bomber to "turn to the hard business of trying to write something persuasive enough, compelling enough, to be published without homicide threats." If Mumia Abu-Jamal can do it, why not? In his book "Drawing Life: Surviving the Unabomber," David Gelernter, the Yale computer scientist who almost died when he opened his mail one day in 1993, describes with heroically restrained outrage "an opinion piece by a journalist in a major newspaper which set my supposed view of technology side by side with the bomber's and compared them, a sort of Christian-versus-lion matchup for the amusement of Sunday readers." Mr. Gelernter is too polite to identify the newspaper or the journalist, but I am not. It was Jefferson Morley in the Washington Post, who opened his article: "Listen to the debate between the Unabomber and the Yale professor maimed by one of his bombs and you will hear a dialogue about America's future." Debate? The Unabomber tried to blow Mr. Gelernter up! We hear a lot about the decline of civility in American political discourse. But surely civility means at a bare minimum that a bomb is not an argument. When someone starts killing people, the debate is over. It is all too evident that some in America's citadels of opinion lack the moral sense to distinguish between a pundit and a murderer. Fortunately, juries are not made up of opinion leaders. If the trial now under way in California ends with a conviction and a death sentence, Mr. Kaczynski should be executed with dispatch. If he is not, other aspiring writer/terrorists may follow his example, giving "publish or perish" a chilling new meaning. --- Mr. Taranto is deputy features editor of the Journal's editorial page. ----------------------------