On the Right - Capital Punishment-Oppose What? - Brief Article

National Review, July 17, 2000 by William F. Buckley Jr.

NEW YORK, JUNE 16

Confusion increases on the question of capital punishment, and almost every day positions, arguments, and pleas make their way to the public square and the tensions on the political campaign increase. Most recently, Candidate Gore has taken the rather evasive position that DNA tests should be executed in any legal situation in which capital punishment threatens. What is interesting on this point is: Can Congress impose such a qualifier on state procedures? Or is it expected that this should be a new guideline governing federal appellate courts reviewing capital cases?

What is losing ground in the current argument is the moral question. Carl M. Cannon, a distinguished reporter and essayist, leads off in National Review with a sustained and vigorous attack on capital punishment and glosses over the moral question, giving the reader case after case of historical examples of failed justice. In some cases, Mr. Cannon personally and nobly figured in effecting true justice.

But what is the discerning public to do when confronted with such a sentence as this: "And now, thanks to several high-profile cases in which condemned men were exonerated, and thanks to the added tool of DNA evidence, the true horror of the death penalty has made itself plain." But whatever is horrifying about the death penalty has nothing whatever to do with the question of whether it was misapplied.

Mr. Cannon holds Gov. Bush to his statement that he is convinced that not one of the 134 persons executed while he has been governor of Texas was innocent. But here is how the argument proceeds, on which Republicans in the campaign will need to express themselves:

1. It is correct that government is frail and often irresponsible. Mr. Cannon bids for conservative attention by writing that "the courts are just a branch of government, and one that by design has less accountability than the other two." He drives the point home: "If ideology and experience lead one to the conclusion that government is by nature inefficient and inept, then why should it be astonishing that the actions of one branch of government-the judicial branch-are so routinely wrong?"

Now that argument pleads the grievous mistake of putting life-and-death questions in the hands of such fallible instruments as prosecutors, jurors, and judges. It does not touch at all on the question: Does the state, acting to avenge the victim and heighten the deterrent factor, properly and defensibly exercise the right to execute the guilty?

2. The American Left is one constituent in a worldwide movement that rejects capital punishment. That rejection is a position held also by the Vatican, a position the Left reverently adduces, while holding itself free and clear of any correlative Vatican position on life and death where the objective is to protect lives unquestionably innocent, residing in mothers' wombs. Many conservatives tend instinctively to oppose any enlargement of the authority of appellate courts to review capital sentences for the very understandable reason that they view many of these measures as attempted circumventions of the very idea of capital punishment.

But the question is now repeatedly raised: How can you proceed to execute John when you now know that you were about to execute James, and James turned out to be innocent? It can be thought of as something of a metaphysical question: If the judiciary process can err, then judicial findings should not authorize conclusive remedies.

The arguments of such as Mr. Cannon aren't supercilious. They are opportunistic. If the political candidates are willing to say that no guilt warrants execution, they should use those words, and make their public case with the relevant distinctions observed.