It is a truism among fellow conservatives that our government is too "big."
Government is faulted for mandating education standards and access ramps for the disabled. The criticism extends to state governments, too, which, after all, are responsible for laws requiring that drivers wear seatbelts and refrain from talking on their cell phones while driving.
Presently, about 91,000 Web pages incorporate the term "big government." There is wide consensus that our government is altogether too intrusive and too powerful.
So if the government should not have the power to prevent you from adding a room to your landmark house, why should it have the power to kill your neighbor? Without addressing the morality of capital punishment, is it not utterly contradictory for a conservative to espouse a government of limited power, but one that can also kill Americans?
The imposition of capital punishment is the jurisdiction of a court, but its availability is the result of legislation. In America, legislation is an expression of popular will. But popular will alone cannot justify capital punishment, because it could just as well mandate that we all wear our underwear outside our clothes each Thursday, or that every citizen of Japanese descent be placed in an internment camp. It is a precept of American conservatism that all legislation, popular or not, should be biased against arbitrary government power.
If capital punishment as the ultimate in "big government" power is not enough to convince conservatives to oppose it, recent developments should. It's certain that we have executed innocent people in the past, and it's now just as certain that our courts are, with some regularity, sentencing innocent people to death.
In April of this year, federal District Judge Jed Rakoff, in deciding that the Federal Death Penalty Act violates guarantees of due process, pointed out that we have learned, mainly through DNA testing, that innocent people are convicted of capital crimes "with a frequency far greater than previously supposed."
Rakoff relied in part on statistics maintained by the Death Penalty Information Center that show that, since 1994, more than 80 convicts, including 10 sentenced to death, have been exonerated through the use of DNA. "Exonerated" doesn't mean that their sentences were shortened; it means that the government got the wrong guy. Those people walked out of prison.
There are plenty of well-reasoned arguments for capital punishment. In 1987, Stanford Law School published a study concluding that at least 20 innocent people had been put to death since 1905. The authors contacted Ernest Van den Haag, the author of a 1986 Harvard Law Review article titled, "The Ultimate Punishment: A Defense," and asked if their finding altered his views.
As if he were Andy Grove speaking of defective computer chips, Van den Haag replied, "If true, a very acceptable number. All human activities — building houses, driving a car, playing golf or football — cause innocent people to suffer wrongful death, but we don't give them up because on the whole we feel there's a net gain. Here, a net gain in justice is being done."
A sentiment not likely shared by Mead Shumway, who, after being convicted of murdering his employer's wife, protested his innocence right up to the gallows, saying, "May God forgive everyone who has said anything against me."
A year after Shumway was buried, his employer confessed to murdering his own wife.
There's an obvious flaw in Van den Haag's reasoning. If an innocent person dies while driving a car, it is ordinarily the result of negligence — an "accident." If an innocent person dies at the execution of a death sentence, it is always deliberate — unless you adopt Van den Haag's premise, which seems to be that our public institutions are entitled to a certain amount of negligent conduct in their application of capital punishment.
Try to square that with any conception of limited government.
If you credit the findings of the Stanford Law Review article, one innocent person was put to death every 4.1 years between 1905 and 1987, a time long before DNA testing came into use. The statistics offered by the Death Penalty Information Center show that were it not for DNA testing, our government would have executed an innocent person once every 15 months since 1994.
If we suppose that American juries have always behaved in more or less the same way, our government has probably really put to death about 78 innocent people since 1905. Figures like that help to put the Pentagon's famed acquisition of a $600.00 toilet seat in some perspective.
Couldn't we simply use DNA testing to insure that the innocent are not put to death, rather than scrap the death penalty entirely? If every defense attorney assigned to a capital case cared enough, yes. Criminal defendants are largely indigent, and their lawyers assigned by the court — few defendants actually retain counsel. Any honest criminal lawyer will tell you that there are plenty of inexperienced and just plain bad attorneys looking for assigned counsel work. At the rate assigned counsel is paid, it's very unlikely that every one will seek DNA testing.
The fallibility of capital punishment has nothing to do with the deservedness of capital punishment in particular cases. But it has everything to do with the incompetence of government bureaucracy and why a government with too many powers is dangerous. Conservatives who stand as the guardian against this danger should want to rid government of a power that has possibly resulted in the execution of 78 innocent people.
Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994. He founded his own New York City firm in 1997, specializing in immigration law and representing new immigrants in civil and criminal matters. He recently left the practice for the "more normal life" of insurance defense. He lives in Bergen County, N.J.