PRESIDENT GEORGE BUSH and other conservative officeholders need to understand one thing about the death penalty, and understand it fairly soon: the party's over. The Right had a good ride on the this issue during the 80's and 90's due to public fear of rising crime and the prevalence of a simpering Michael Dukakis school of liberalism that seemed too prissy to strike back. But with crime in decline, largely due to the much-imitated efforts of one tough-on-crime mayor of New York City, the public is no longer baying for blood. But the real problem is DNA.
DNA technology is increasingly being used to prove that people convicted of serious crimes are in fact innocent. It will continue to be so used. It has thus far set dozens of men free, but it has not yet proved that someone executed for murder was innocent. One day, inevitably, sooner or later, it will. Then either there will or will not be hell to pay politically, depending on what conservatives do now.
The Left, which has up to now been forced to use stone-guilty Mumia Abu-Jamal as its poster boy against capital punishment, will finally have someone it can get somewhere with in the minds of uncommitted Middle America. The Right will either be left holding the bag for executed innocents, or it will have prepared an answer that is intellectually defensible and politically viable. Here is what it must say:
"We do not concede the legitimacy of the death penalty as an absolute moral question. Its legitimacy is granted by almost every serious moral tradition, including our own, and by the logic of deterrence. We do, however, agree that given the risk involved of executing an innocent man, that it is to be used only sparingly and in extreme cases."
And it must back up, or even better, already have backed up, this statement with a massive legislative and judicial retrenchment of the application of the death penalty. In particular, it must shift the criteria for the its application from "aggravated circumstances," as the courts now enjoin, to the certainty of guilt.
For conservatives to concede the death penalty entirely, as a philosophical issue, would be a disaster, because it would enable the leftists to spend the next 50 years telling everyone that we were decisively wrong on an issue that kills people. It would be a jackhammer against the fundamental legitimacy of our tough-minded moral attitudes. It goes without saying that there are still crimes horrible enough, and criminals whose guilt is so indisputable, that there are cases where it should be applied. But we should aim at a reduction in the numbers to such a level that it is applied only in cases where the certainty of guilt approaches totality. Timothy McVeigh is a good example.
If we dodge this bullet in advance, the public will forgive us, because it is fundamentally interested in the future, not the past. But there is not much time.
But sorry, Mumia, this will probably not be of benefit to you.