Wednesday, October 3, 2007

Lethal Injection & A Nationwide Moratorium

Last week I discussed the Supreme Court's decision to weigh the constitutionality of lethal injection later in the year, and the immediate effect this was having on executions throughout the country.

After the court stopped an execution last in week in Texas, the Texas Court of Criminal Appeals stopped another one last night, indicating what many argue "is a sign that judges in the nation’s leading death penalty state were taking guidance from the Supreme Court and putting off imminent executions. Other executions, including four more scheduled in the next five months, were also likely to be stayed."

On the whole, this would seem good news for the anti-death penalty side. The net effect of the court's decision to review lethal injection could, in effect, produce a de facto nationwide moratorium on executions until the court reaches a decision. But pro-death penalty advocates urge caution.

In an interesting piece noted at Sentencing Law and Policy, death penalty advocates claim the moratorium could actually "kill innocent people." Raising the age-old deterrence argument, Crime and Consequences argues that the death penalty does deter homicide, "when it's enforced," and that a consequence of a national moratorium could actually endanger lives.

This may seem, at first blush, a difficult point to understand. But if the death penalty deters, say, even a handful of murderers from committing homicide, a national moratorium could produce an increase in homicides and loss of innocent life.

For a more in-depth treatment on the "moral necessity" of having a death penalty and its attendant deterrent effect, see: Sunstein, Cass & Adrian Vermeule. 2006. "Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs." Stanford Law Review, Volume 58, no. 73, pp. 703-750.

As I noted in the other post, this is a very significant turn of events in the capital punishment debate. With the application of the death penalty itself on the ropes with this decision, expect a flurry of academic studies, both pro and con, concerning the morality of the death penalty in the coming months.

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