Ultimate Justice

Posted by Jay Tea

This day, the 235th anniversary of the signing of the Declaration of Independence and the day we consider our nation's "birthday," seems an appropriate topic to discuss a question that has possibly brought up more Constitutional questions than any other:

The death penalty.

As odd as it sounds for such a weighty matter, I really don't have any strong feelings on the matter. It's almost purely an intellectual issue for me; I don't have a lot of emotional value invested in it. But a lot of other people do, and it's almost always a flashpoint for quite heated discussions.

And the Constitutionality of the death penalty is often questioned. In fact, at one point, the Supreme Court overturned the death penalty laws of all 50 states, forcing each and every state that wanted to continue the practice to rewrite their laws from scratch. (That "window" is why Charles Manson, among others, was not sentenced to death.) But is it Constitutional?

In the abstract, absolutely. It's explicitly referred to in the Fifth Amendment, where restrictions are cited -- and by imposing restrictions, it's clear that it is allowable if those restrictions are met.

My own opinion on the death penalty is that it is Constitutional and, occasionally, necessary. It was largely shaped by a single case: Massachusetts' Joseph Druce.

Druce was convicted of first-degree murder in Massachusetts, which has no death penalty. He was sentenced to life without parole. But while imprisoned, he stalked a fellow inmate -- convicted pedophile priest John Geoghan -- until he cornered him in a cell, jammed the door shut behind them, and beat Geoghan to death before guards could open the door. Premeditation was never a question; Druce had calculated just how thick a book would have to be to jam the door, and had torn pages out of a book to be precisely the right thickness.

For his crime, Druce was indicted, tried, convicted, and sentenced -- life in prison without possibility of parole.

In other words, nothing. But in the course of that procedure, he was shuttled back and forth from prison to court for weeks -- a nice change of scenery and pace for a man who had no other diversions or distractions to distract him from the endless tedium of waiting to die.

In the case of prisoners in such situations, there is literally no incentive for them to not commit murder, and a healthy one to do so. And while Druce's victim was, to be blunt, no great loss to society, next time it could be a guard or other more worthwhile person. People like Druce are beyond the reach of any other penalties; they literally have nothing to lose, and therefore no reason why they should not commit murder. The death penalty would serve as a potential check on their behavior where nothing else can.

On the other hand, there are cases like Cory Maye. Maye has been noted libertarian scholar and pundit Radley Balko's personal cause for years. Maye was in his home, minding his own business, when police -- acting on a seriously flawed search warrant on the wrong home -- carried out a "no-knock" entry. Maye, believing he was defending himself and his family, opened fire. As soon as he realized the invaders were police, he dropped his weapon and surrendered, but it was too late -- one officer was killed. For that, he was arrested, tried, and sentenced to death.

Years later, he's finally had his sentence commuted and is being released -- thanks in no large part to Balko's tireless efforts on his behalf.

It's usually a bad idea to set a law or a policy based on a single case. But here are two cases that seem to give two conflicting opinions on the death penalty: the Druce case shows how the death penalty is necessary, the Maye case shows how dangerous it can be when the justice system is abused.

There has to be a "happy medium," a way that keeps the penalty for those cases where it is truly merited, but restricted enough to prevent (or at least greatly limiting) the chances of injustices like that perpetrated against people like Maye.

I just don't know how it could be crafted to meet both needs -- if it even can.

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