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Jewish World Review Jan. 14, 2003 / 11 Shevat, 5763

Cal Thomas

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The death penalty: Mend it, don't end it | The commutation of the sentences of more than 160 inmates on Illinois' death row by Republican Gov. George Ryan just two days before he left office is a miscarriage of justice. That a few of the inmates were wrongly convicted is not a sufficient reason to abolish the death penalty as society's ultimate weapon to punish convicted murderers. The flaws can be fixed without eliminating the death penalty.

Incoming Democratic Gov. Rod Blagojevich was right when he called Ryan's blanket clemency "a big mistake." Blagojevich said these cases should have been considered individually, because, "You're talking about people who have committed murder."

Among those spared a death sentence are a man and woman who murdered a pregnant woman, her 10-year-old daughter and 7-year-old son. They also cut the baby, who survived, from the woman's womb. If the notion of "just deserts" ever matters, it should matter in this case. Depriving people of liberty who have deprived others of their right to live is not equal justice under the law.

Ryan's decision is the type of decree usually associated with dictators. He imposed a view not shared by most voters or their elected representatives. Four of those spared were pardoned. Cook County State's Attorney Dick Devine said their cases should have been decided by the courts. "Instead," said Devine, "they were ripped away from (the courts) by a man who is a pharmacist by training and a politician by trade. Yes, the system is broken and the governor broke it today."

Groups opposed to the death penalty want to convince the public that the state is executing innocent people who might be exonerated if there was more time to investigate their cases. This sounds reasonable until the facts are examined.

Death-penalty opponents claim there is a 68 percent "error rate" in capital cases. They base this on a study by Columbia University Law School, whose lead author, Prof. James Liebman, opposes capital punishment. But as Paul G. Cassell, a University of Utah law professor, wrote in The Wall Street Journal on June 16, 2000: "The 68 percent factoid is quite deceptive. For starters, it has nothing to do with'wrong man' mistakes -- that is, cases in which an innocent person is convicted for a murder he did not commit." Cassell notes that the most critical statistic is ignored: "After reviewing 23 years of capital cases the study's authors (like other researchers) were unable to find a single case in which an innocent person was executed. Thus, the most important error rate -- the rate of mistaken executions -- is zero."

Death penalty opponents, like Ryan, frequently point to the number of murder convictions overturned by appeals courts as evidence of the system's unfairness. A 1995 study by the Criminal Justice Legal Foundation looked at cases where the U.S. Court of Appeals for the Ninth Circuit (a notoriously liberal court) overturned sentences based on disagreement with state courts over capital sentencing law, and where the Supreme Court ultimately resolved the disagreement. On all but one of a dozen issues, the state court decision upholding the sentence was judged correct, and the federal court decision finding "error" was itself erroneous.

"Annually improvised" jurisprudence is what Supreme Court Justice Antonin Scalia has called the shifting standards courts use to decide capital cases. Appeals courts that overturn the ruling of trial courts frequently impose an anti-death penalty bias and find "errors" to justify their preferred outcome. Error rates cited by anti-death penalty forces should be seen in this context.

When the Supreme Court allowed capital punishment to proceed after earlier ruling it unconstitutional, it said, "the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death."

Injustices and inequities can and should be repaired. But two brothers who beat a sleeping couple to death with baseball bats and a father who tortured his mute, severely retarded and handicapped stepdaughter for five years until she died (these were among the death-row inmates whose sentences were commuted by Ryan) deserve to have their lives taken from them and not to be permanent "guests" of the state and a burden to taxpayers for the rest of their lives.

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JWR contributor Cal Thomas is the author of, among others, The Wit and Wisdom of Cal Thomas Comment by clicking here.

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