The issue of repealing capital punishment in the state is again a topic of legislative discussion, and is as emotionally charged, on all sides, as ever. One crucial difference in this year’s effort is the momentum the abolitionist side appears to have. Repeal seems closer to realization than it has ever been, due at least in part to greater acceptance of the idea by some Republican legislators, some of whom are even listed as co-sponsors of the motion.
The death penalty is a complicated, wrenching issue, owing to the aura of finality that surrounds it — both of the sentence itself, which is of course irreversible; and the crime in response to which it is applied — the brutal, violent and deliberate taking of a life entirely underserving of such an end, also irreversible. Compelling arguments are made, vigorously, in both support and opposition.
Deterrence is often cited in defense of maintaining the ultimate punishment, and while valid statistics do exist here and there to back up the proponent’s claims, deterrence is frustratingly difficult to quantify. Seldom is one able to produce the person who will testify that, yes, he would have killed his wife or the store clerk if not for the specter of lethal injection hanging overhead.
The problem becomes more acute when dealing with younger killers, whose sense of mortality is not yet fully developed. The 17-year-old who shoots another 17-year-old, or the group of frat boys who beat, rape, and kill a teenage girl are not likely contemplating the possibility of fatal consequences to their actions at the time. It skirts the moral question of the government’s rights and duties in applying the death penalty, but thought must be given to how to deal with and deter youth crime, i.e. what is it that motivates or, more properly, frightens them?
The deterrence question aside, there are libertarian arguments against capital punishment which would seem to be at play in galvanizing nascent Republican support for repeal. The classic assertions center on suspicion of government power, misgivings selectively shared by the liberal left. The most obvious contention is that no fallible human institution ought to hold such ultimate power over an individual — namely the ability to take under force of law even his or her life. The philosophical jousting over that question stretches hack centuries and will continue long after we are gone. The more practical element to that goes something like this: can an institution (government) whose bureaucratic fumbling’s and missteps have become legendary really be trusted with making life-and-death decisions? But here again the question evades that of the government’s moral duty to justice.
The more compelling argument from the right is one of political housekeeping: whether a law that is not used ought to remain in force. There are currently only three inmates on Colorado’s death row, and they have all been there well over a decade. Only one person has been executed in Colorado since the death penalty was reinstated. Colorado has among the strictest standards for applying the death penalty in the country, laws which have thrown up nearly impermeable barriers to its imposition, to the point where a death sentence in the state virtually guarantees the longevity of the condemned. If, for whatever reason, a Colorado jury could not even see fit to sentence the Aurora theater murderer to death, then what, the argument goes, is the point of keeping the penalty?
More than most issues that crop up during the legislative session, the fate of the death penalty transcends purely utilitarian arguments, tied inextricably as it is with heartbreaking tragedy and the accompanying emotions. It confronts us with questions that evade simple answers, but which a mature society must weigh. Do historical examples of failed justice nullify the moral right and duty of the state, in acting to avenge the victim and heighten deterrence of further violence, to execute the guilty?
My own opinion is sympathetic to the view that a certain gravity attaches to the state’s responsibility to protect innocent human life by being willing to execute those who take it. But admittedly the societal trend is proceeding in the other direction. It appears more likely than ever that capital punishment will be repealed in Colorado, but the central moral question remains; if we as a society are willing to give up the death penalty, are we correspondingly willing to equip law enforcement and prosecutors with the tools needed to punish and deter crime?
Kelly Sloan is a political and public affairs consultant and a recovering journalist based in Denver.