The Foreign Service Journal, October 2003

• Conrad E. Johnson, 35, bus driver and family man. Father to two sons who cannot understand where their “best friend” went. Killed as he stood on the steps of his bus waiting to begin his first route of the day. • Premkumar A. Walekar, 54, father of two, an immigrant from India who came to America in search of an education and a better life. Gunned down as he was filling his taxi with gas. • Linda Franklin, 47, FBI ana- lyst. Picked off as she loaded bags into her car in a Home Depot parking lot with her husband. She died in his arms. Malvo and Muhammad alleged- ly hunted humans like deer, using a high-powered rifle, tripod and scope to drop their prey by shoot- ing through a hole they had drilled in the trunk of their car. Their trials are set to begin this fall. In jail, young Malvo reportedly has boasted of his feat and laughed about the people he’d executed in cold blood. The question is, do he and Muhammad deserve a similar fate if convicted? Some opponents of the death penalty, including many Europeans and other critics of the U.S., say no. They insist that in this day and age, the death penalty is a relic of the past, a barbaric instinct for vengeance no better than the crime it purports to punish. But such sentiments, however heartfelt, ignore the horrific nature of some criminal deeds. And to do that is, in many senses, to devalue human life itself, for it denies the value of the life of the innocent victim and exalts that of the murderer. We can see this tendency every time death-penalty opponents object to anyone highlighting the victims. According to opponents, the guilt of their murderers, not the fact that the victims were ‘good’ people, is the central legal issue. But that is precisely backwards. The “legal issues” are not an end in themselves; they are not what moral philosophers would call an “inherent good.” Rather, the legal system is a means to an end — namely, discovering the truth and doing justice. Death-penalty opponents can argue for abolition only by elevating the “system” and devaluing the victim — and calls to ignore the victims show this unfortunate moral calcu- lus at work. Simply put, there is a class of people whose crimes are so heinous, like Malvo and Muh- ammad, that the death penalty should apply. For those who oppose the death penalty the ulti- mate thought experiment is: “What would you do with Adolf Hitler?” Anyone who can answer that the principle of non-retribution re- quires society to permit Hitler to live demonstrates remarkably little regard for any moral calculus that reflects a serious con- sideration of what it means to be just. Safeguarding the Innocent The death penalty is tough on criminals, yes. But any lesser punishment is tougher on innocent people. And as a matter of moral justice, do Muhammad and Malvo deserve anything less than execution? Killing should in aggravated cases carry consequences equal to the gravi- ty of the harm caused. People may be free to choose their actions, but in a civilized society, they certainly ought not to be free to choose the consequences of those actions. On the contrary, only a barbaric society would permit such behavior to be weakly punished. Do innocent people ever get caught in the crosshairs of justice? Not as often as death-penalty opponents would have us believe. According to Dudley Sharp, from Justice For All, a nonprofit organization that works on criminal justice reform, “somewhere between 15 and 30 death row inmates have been released from death row with credible evidence of actual innocence. That represents about a 0.3 percent error rate of the 7,300 sentenced to death since 1973.” None of these people were executed before their names were cleared. Those who say otherwise — who think that the error rate is higher — often confuse two types of error. Some cases are reversed because of a legal error about, for example, F O C U S O C T O B E R 2 0 0 3 / F O R E I G N S E R V I C E J O U R N A L 27 Paul Rosenzweig is a senior legal research fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and an adjunct professor of law at George Mason University. Yielding to international criticism of the death penalty would require disavowal of the traditional American belief in the concept of “just deserts.”