Advocates on all sides of the capital punishment debate often get caught up in endless arguments about how to make administration of the death penalty fair and flawless in application. A “moral certainty", to use former Illinois Governor Ryan’s phrase - so that we can feel OK about having it on the books.
This pointless debate misses a crucial point. In their genius, our founding fathers established our government with checks and balances and separation of powers because they knew that we are imperfect and that, inevitably, we will make mistakes. They set up our government so that its decisions and actions are virtually never absolutely final, permanent nor irreversible. Not only do we have three branches of national government, we also have state and local governments and most states also have two houses in their Legislative branch, not just one. U.S. Senators serve with staggered terms and many powers are allocated to state and local governments, which themselves are manifestations of the same system of checks and balances/separation of powers.
If I don't like a proposed law or other government action, I can work to change it legislatively, make it a political issue in an upcoming election, or push to have the act declared unlawful or unconstitutional. I can appeal a judicial decision I don’t agree with, impeach a judge, or a President, work hard to help vote an elected official out of office, or support a challenger into that office. In addition, all elected officials have finite terms of office, with limited powers. Even a Supreme Court justice, who serves “for life”, sits as one member on a panel of nine. And, as we have seen, membership even on this highest court can become a political issue, providing a potent reason to vote for, or against, a Presidential candidate or political party.
And on it goes. One can add countless examples. Our system is set up this way because, as a collection of imperfect beings, we will NEVER be fully free of error. That old political warhorse, Larry O'Brien, captured this essential point in the title of his 1974 book: No Final Victories. Our founders knew that the answer is not to insist that our systems work flawlessly (always a good goal to work toward), for the simple reason that they never will. Instead, our founders wisely built IMPERMANENCE and REVERSIBILITY into the system to allow for ERROR CORRECTION and RECOVERY.
Now here's the kicker: Because our government structure works so hard to facilitate disaster checking and error rectification, we are compelled to view the death penalty, by virtue of its unique and deadly permanence, as fundamentally UnAmerican. I know some states have elaborate review checkpoints and appeals built into their capital punishment system, which can last for years. And, yes, these provide a sort of check and balance, but the reasoning behind them only reinforces my point that the PERMANENT IRREVERSIBILITY of capital punishment makes it inherently UnAmerican.
No matter what safeguards we think we’ve built in, so long as the death penalty is with us, we will execute some innocent people at some unknown, but non-zero rate. This follows as surely as night follows day. And, it’s clear as a bell that our founders knew this in their bones. Why else would they have made ALL our government processes (as specified above) so IMPERMANENT and ultimately REVERSIBLE?
The inescapable conclusion: Americans who embrace the death penalty simply don't understand our basic form of government; or, if they do, they don’t agree with it.