Death watch

Regular readers will know of my ambivalence about the death penalty. There is much that is troubling about capital punishment, including the fact that it gives far more power to the state than any of us should be comfortable with. But some crimes are so depraved that nothing short of the ultimate punishment seems appropriate.

So I pay attention to critiques of capital punishment in general and various state implementations of it specifically, such as the current one by the American Bar Association of Kentucky's death penalty. The ABA found a lot it didn't like and recommended temporarily suspending executions until the most serious issues are addressed. The criticism at the top of the list was striking:

Of the last 78 people sentenced to death in Kentucky, 50 have had a death sentence overturned on appeal by Kentucky or federal courts.  That is an error rate of more than 60 percent.

That's incredibly high and would be unacceptable in any kind of case, let alone capital ones. The one thing about the death penalty that should be agreed on by everyone from the strongest advocate to the most ardent foe is that the right people and only the right people be executed. That's not the same as "fairness," in the sense that the ABA and other critics usually use it. They think it's wrong that, because of different standards and levels of competence in various jurisdictions, people could face either execution or mere prison time for the same crime, depending on where it was committed. Equal-punishment uniformity is an absurd expectation given the local nature of criminal justice, but it's understandable that people would push for a higher standard of fairness for death-penalty cases.

I don't really buy the ABA's claim that it is neutral as to the rightness or wrongness of the death penalty and seeks only to push for states to exercise a basic level of due diligence to make sure capital punishment is "reserved for the worst offenders and offenses" and "to ensure heightened due process and minimize risk of executing the innocent." It's done quite a few of these assessments and its bias is fairly obvious -- it recommends a moratorium more often than not, including in Indiana when it studied our execution patterns in 2003 (Executive Summary here). It cited no statistics for a horrible error rate, which means there wasn't one, and the fact is that here capital punishment is reserved for the worst of the wort, but we were recommended for a suspention of executions anyway.

But that's OK. Whatever the group's intent or predisposition, it's another watchdog providing the valuable service of keeping track of an issue too big to ever take for granted. On something so fundamental to the relationship between government and the governed, we should always be willing to acknowledge that we might not have considered all there is to b