Death penalty serves a vital purpose

Oakland Tribune, Mar 9, 2006

BLESS those sincere death penalty opponents who are grounded in traditional morality. They have the gift of intellectual honesty.

As Sister Prejean of "Dead Man Walking" fame said recently: "You're not serious about the death penalty." With more than 600 convicted murderers in a death row queue and less than one execution a month, Sister Prejean makes a good case.

The death penalty is cruel -- to those who don't deserve it -- but it is not unusually so when compared with other punishments in the same class, i.e., other forms of execution. The U.S. Supreme Court will never outlaw execution in all its forms.

In the latest lethal injection controversy, death penalty opponents are playing chess: Move one was to press for lethal injection as "more humane." Move two was to press to

mandate the presence of a medical professional on scene. Move three was to get the physicians to back out.

Checkmate? Hardly. The goal is not to save a killer's life, but only to minimize his pain. San Quentin could get by with a vet.

Those humanitarian souls who oppose the death penalty lack a sufficient grasp of the workings of the brutal mind. Here's the hard truth:

Whenever a region is infected with a critical mass of brutally minded, homicide-prone males (the sub-group is 95 percent male), the genteel rules of drawing-room justice ("Kill somebody and go to another room") are ineffective.

I no longer oppose the death penalty because of the answer to one question: What if the legal execution of 50 actually guilty murderers worked to prevent the illegal slaughter of 800 actually innocent men, women and children?

If the death penalty deters murders at all, the moral calculus changes dramatically.

There is a suggestion that the 9th Circuit's intervention in the Morales execution might create a de facto California moratorium on the death penalty. Once led by Rose Bird, the California Supreme Court reversed all 61 death cases that it heard.

California had a de facto moratorium from 1967 through 1991, during which there were no executions. During this period the murder rate increased from six murders per

100,000 people to 12.6 murders per 100,000. Executions resumed in 1992.

According to California Attorney General Bill Lockyer, between 1991 and 2000 the homicide rate fell 47 percent. The Department of Justice's "Homicide in California, 2004" report shows that the total number of California homicides was 2,394 in 2004, a homicide rate of 6.5 per 100,000 population.

Last year, the Brookings Institution and the American enterprise Institution jointly published the study "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs."

Here's the relevant pull quote: "Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as 18 or more murders for each execution."

The people at large -- the ones who work, protect their children, pay taxes and vote -- have got it figured out. Society has been infected with a critical mass of brutally minded, homicide-prone males.

Many of these brutal minds are functionally undeterred by the threat of more prison time. Some are deterred by the prospect of death row, and some is better than none.

An increase of as few as six murders per 100,000 would represent roughly another 1,000 murder victims. Can we really afford another death penalty moratorium?

Jay Gaskill, an attorney and criminal justice consultant, was the Alameda County public defender from 1989 to 1999.