First and foremost, we are a country of laws. As a matter of law, neither our federal nor state constitutions prohibit death as a potential criminal penalty for the worst murderers.
Thus, the moral/public policy question is: Can people engage in behavior so reprehensible they deserve to die for their crime or crimes?
Adolph Hitler directed the deaths of more than 17 million innocent men, women and children. Did Hitler deserve to die? The 9-11 terrorists took 2,977 innocent lives. Timothy McVeigh blew up 19 children under the age of six and 149 adults. In Nebraska, Charles Starkweather murdered 11 people; Jose Sandoval, Jorge Galindo and Erick Vella slaughtered five people in a bank in Norfolk; John Lotter murdered three; Robert Williams, Carey Dean Moore and Marco Torres each murdered two; John Joubert and Arthur Gales each murdered two children; Roy Ellis, Raymond Mata and Jeffrey Hessler each murdered one child; Michael Ryan took three days to torture his victim to death; Willie Otey repeatedly raped and tortured his victim before taking her life.
When do we say enough is enough? When do we say, “This murderer deserves to die”? It is not a question of forgiveness or vengeance. It is a question of just punishment.
Any criminal punishment may be justified as proportionate retribution and/or deterrence. Whether the death penalty deters murder will be the subject of endless debate. What is not debatable is this: Some murderers are not deterred. They intentionally slaughter our children, our friends, our fellow human beings without cause or excuse. More than 30 states and the federal government believe that a penalty of death represents proportionate retribution for the injury inflicted upon society by the worst of murderers. The death penalty is justified as proportionate retribution alone.
About legal process
As God discovered in Eden, human beings are not capable of perfection. Our legal system is made up of human judges, human attorneys and human jurors, all listening to human witnesses. Any human system has the potential for human error. In response to that reality, our legal system provides “process” -- rules of law, rules of evidence, defense attorneys and multiple layers of judicial review -- each to guard against that risk of error. The decision to impose a penalty of death is subject to more legal process than any other decision made by our courts. Providing these safeguards is wholly appropriate. Providing these safeguards is not free.
Recently, the argument has been made that the death penalty should be abolished, not because it is legally or morally wrong, but because it is “too expensive”. Achieving justice is expensive, particularly in the context of the death penalty. Innocent life has been lost, and the life of the accused is at stake. We should not desire to make that life-and–death decision on the cheap. On the other hand, we should not conclude dollars are more important than doing justice.
About statistics and the nature of crime
Criminal justice is a reactive endeavor. The government does not choose who commits crimes. A murderer chooses to extinguish an innocent life and the government has a duty to react. Any statistical description of those who commit such crimes primarily reflects the choices of the guilty, not the government.
Finally, we are a society that values human life. The death penalty is an expression of the high value we place upon innocent human life. The legal process we provide is an expression of the value we place upon the life of the accused. Yet once guilt is established, we should place a much higher value on the innocent life lost than upon the life of the murderer. We are neither morally nor legally restrained from imposing death as a punishment upon the worst of murderers. We are neither morally nor legally restrained from achieving justice for the citizens of our community.
"There can be no justice until those uninjured by the crime become as indignant as those who are." Solon (559 BC)
J. Kirk Brown is senior assistant attorney general for Nebraska. The opinions he expressed here are personal and do not necessarily represent the position of the State of Nebraska, Nebraska’s Attorney General or the Nebraska Department of Justice.