Opinion » Ted Rall

The Slow Demise of Capital Punishment

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NEW YORK-One of the most famous Taliban executions was one they didn't carry out.

The accused, convicted by a Sharia court of raping and murdering a young woman, sat in the mud near the goalpost of a soccer stadium in Kabul, his arms tightly bound to a chair. The victim's father was brought before the condemned man to determine his fate: Sharia law gave him that right. If he gave the go-ahead, the man would be dispatched with a gunshot to the back of the head, providing satisfaction and entertainment to thousands.

The murdered woman's father could also opt for an intermediate punishment. It was fairly common for the aggrieved to demand goats or a period of time working as an indentured servant in lieu of the death penalty. Mercy was another choice, atypical but not unheard of.

Afghan culture demands stoicism, even bravado, from those facing death. When I asked prisoners being held in a jail for capital crimes whether they had regrets, they smiled: "Only that I got caught." Would you do it again? "Definitely." So the crowd was surprised when the murderer begged his victim's father to spare him. "I'm so sorry," he blubbered, "please don't kill me, I'll do anything you want. Please!" He went on like that until the old man kicked over the murderer's chair.

He spat on the ground. "How could I kill you?" he asked. "You have already died as a man." He went home, and the spectators drifted away. The story goes that the killer's disgusted family threw him out onto the streets, where the coward died a beggar because no one would give him any money.

It's a harsh story. Yet the Taliban system of capital punishment, though barbaric, would be a distinct improvement over ours. It was certainly more honest. Instead of spinning fanciful and repeatedly disproven tales that executions deter crime, the Taliban admitted that they killed killers to assuage their society's lust for vengeance. That's why they gave the victims and survivors, rather than civil servants, the final say.

Although they often assumed a carnival atmosphere in a society where stonings and amputations were the only entertainment, public executions required the public to assume personal responsibility for their bloodlust just by being there. Would we squeamish Americans, who expect the animals we run over with our cars to be whisked off (Where? Who cares? Somewhere, somewhere far away), support the death penalty if we had to watch the terror in the eyes of the condemned on TV? If we had to smell the stench of his loosened bowels? If we held his hand as he breathed his last? Public-funded activities ought to be carried out as publicly as possible. Your tax money pays for the poison, the restraints, the coroner. You pay the killers, so you are a killer.

There's one big reason, moreover, that we can't look down upon the Taliban. Our executions may be sanitized and secretive, but the end result of our system is exactly the same as theirs: a dead man.

Murderers, and probably rapists too, deserve to die. But, as has been proven by the release of dozens of "killers" and "rapists" exonerated by newfound evidence, the courts cannot always determine who has killed or raped with 100 percent certainty. A state that has killed one innocent person is forever morally bankrupt; better to let a million criminals go free than to punish one who hasn't done anything wrong. Those who make the Napoleonic argument-gotta break a few eggs to make an omelet-are no better than the murderers they purport to judge. After all, the same logic rationalizes freelance, non-state-sanctioned murder. Why not plug the night clerk? Gotta break a few eggs to score two hundred bucks out of the register.

Yes, the murderers and rapists deserve to die. But who is qualified to kill them? Not the state, which can't screen out the innocents and is supposed to set an example for citizens to emulate. Not their victims and survivors, unless we're prepared to go the Taliban route. No one can, so no one should. That's hard for our can-do culture to accept, but it's nevertheless true. The death penalty relies on too many fictions-that the courts are always right, that defendants in capital cases have access to adequate legal representation and exculpatory evidence such as DNA tests, that housing prisoners is costlier than endless litigation-for a civilized country to keep it on the books.

The abolition of the death penalty for children under 18 (following a three-year-old decision to stop executing the mentally disabled) is a positive step in the right direction. Besides removing the United States from the tiny list of kid-killing countries, which includes Iran, Saudi Arabia, Pakistan and China, the Supreme Court's decision recognizes the fact that the rest of the world matters. Acknowledging the "overwhelming weight of international opinion against [it]," the court wrote: "Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty." Execution was originally touted as an appropriate adult punishment for children guilty of particularly heinous "adult crimes." Yet the 22 children who have been executed during the last 20 year-13 in Texas-were not serial killers who drank soup out of their victims' skulls, but kids convicted of garden-variety mayhem.

Though welcome, the latest narrowing merely reemphasizes capital punishment's intrinsic absurdity. Is a 17-and-a-half-year-old murderer so different from an 18-year-old that the former should have his life spared while the latter should not?

Law should strive for rationality, a goal largely realized through consistency. The death penalty is inherently inconsistent and therefore intrinsically irrational.

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