California and the Death Penalty
By Jordan Harms

A piece in the New Yorker I read recently entitled Tinkering with Death by Alex Kozinsky, a death penalty judge, alternately enraged me and buoyed me with hope for common sense. This roller coaster ride with Kozinski’s words epitomizes how he presented his argument for the death penalty, which is why where he ended up was somewhat surprising. One could characterize Kozinski’s work as self-persuasion—was he trying to show all sides of the argument, or merely trying to convince himself that he was on the right side of that argument? He juxtaposed the appeal to the heartstrings by those speaking for the man on death row next to the gruesome horror of the acts that got him there. There are perhaps better ways to make his point.
One can appreciate how difficult it is to grapple with the morality of the death penalty—its efficacy, however, is not in doubt, in my opinion. Dead is dead. It has an amazing effect on people to make them think twice about committing murder. Its efficacy is lost, however, when they are in no danger of ever facing that death penalty for decades and may even be the fortunate recipient of a stay of execution because of tireless efforts by those who don’t care what the crime was. The murderer actually has a lot of things going for him once he is inside the justice system. The victim seems all but forgotten.
It does indeed seem that death row occupants (and their families) turn into victims themselves. With time fading the pictures in people’s minds of the poor innocents who were dismembered or tortured before they were dispatched from this earth because of the long appeals process, these deviants turn into causes. It is shocking the lengths that opponents of the death penalty will go to try and “understand” why killers do what they do and find ways to save them from their punishment. After all, the victims not only weren’t saved by anyone, but suffered, in many cases, a fate worse than death. But this is what has happened to our culture: everything is equalized or diminished equally. Moral relativism is king in the land of apologists. There is no more right and wrong, only disadvantaged childhoods. And even when the crime is so heinous that there can be no excuse for it, it is still society’s fault that we let it happen.
Kozinsky had some lucid moments when he acknowledged that “whatever qualms” he may have had about the death penalty they paled at the “pitiful cries of the victims” from the grave. Kozinsky wrote cogently that “brutal facts have immense power” as indeed they do. To my mind, that is where he should have ended his argument. Because there is where the argument

of the opposition begins, in the so-called brutality of the death penalty as equal to that of the perpetrator and his crime. Moral relativism says that we are equally culpable as a society when we impose death on those that did the same. It forgets that we exercise society’s prerogative to decide what punishment will fit what crime—it is not retribution. It is not an eye for an eye. We leave that to the Creator. It is any society’s right to create a system of checks and balances, rules and regulations, rewards and punishments, in order to maintain law and order under the rule of law. In America, after the Supreme Court declared death penalty statutes unconstitutional, it was thrown back to the states under our federalist system. One could argue about the constitutionality of the death penalty as such, but there is no doubt that the states have the right to ask their residents how they feel about it. James Madison would agree.
“Gaming” the system by endless appeals has trivialized justice. If the public cannot rely on the system to work, society will break down. Kozinsky says “the game ends in sudden death and the prisoner’s arguments die with him.” What would he have it do—keep the prisoner’s arguments alive in perpetuity? Is there never an end to the criminal’s “rights?” And I take issue with the premise that it is a game—if it is one now, it should not be. The death that the murderer suffers at the end is not “sudden.” He has had every available avenue open to him numerous times over, ad nauseum. Redundancy is the watchword in death row appeals. That, and the sheer audacity of the reasons about why he should not meet his punishment—from technicalities in the law to feigned incompetencies to the “inhumane” lethal injection. People object to the sterilized atmosphere of guerneys and needles, but even in that, society has tried to make the death penalty “value neutral.’ We don’t show our abhorrence for the criminal’s act as the reason for his being put to death—we neutralize the circumstances as much as possible so that the abhorrence is barely evident. The death row inmate is almost having “an operation,” if you will. Candles in the dark outside the prison are like a wake for the passing of a loved one. Where is the outrage for the victims? I am not suggesting cheers and dancing in the streets, but certainly an appreciation that justice was done. All you hear are the laments.
To Kozinsky’s credit, he came out on the common sense side of the argument, on the side of justice. What other countries do to their heinous murderers is their business; we don’t allow international law to trump our own Constitution, do we? If there is any argument to be made, it is to completely overhaul the system. The years of never-ending appeals, the last-minute stay petitions, the sense of urgency of an imminent death chamber occupant should be abrogated. There should never be a sense that “his time is up” or that the criminal came to a “sudden death.” It belies the facts, and brings an emotional element into the whole process. Death penalties

should be decided by the evidence, by the facts on the ground, and by the prevailing law. Anything else is gaming the process and puts the rights of the victims to see justice last. Why are death warrants only valid for a limited time, for instance? Is there anything temporary about the grave of the victim? Our country bends over backwards to ensure that everyone’s civil liberties are being honored—the ACLU’s instigating civil rights issues is a red herring. (It is my sincere opinion that the ACLU is ruining this country with all their frivolous lawsuits.)
If procedural delays are used to stave off executions for many years, they are being misused. Kozinsky is correct when he says the existential quality of last minute stays turn the judges into advocates for or against the death penalty, when they should just be following the law. Emotional blackmail should not enter into it. It is not the job of any judge to “find fault with every death sentence” because that is their personal ideology. There are consequences for our society when judges try to legislate from the bench something that the citizens have already agreed upon. People lose faith that their voice was heard in their vote, and that is the basis of our entire system of government. The fact that Kozinsky wrestles with his conscience here may mean he is a thoughtful person, but it really has no place in the discussion. He knew what he was signing on for when he became a judge, and his personal “feelings” about the law should not be part of his decisionmaking. There is where everybody goes off the rails.
The state we live in is a case in point: there is a new political movement afoot to render the lethal injection, which was not too long ago thought to be safe and painless, as inhumane. The doctors that are putting forward this notion are doing so because they are ideologically opposed to the death penalty, and this is yet one more in a long line of attempts to do away with it in the state of California. There is a much easier, not to mention lawful, way to make that happen—let the people decide. Put it to a vote. Madison would not object. Oh wait, but we already did that, didn’t we?