In the last few months there have been a few death penalty executions. Most notably the D.C. Sniper was executed on November 10, 2009. Since that time I have been thinking about the death penalty. I have discussed it on Twitter and in real life.

The last unit of our Criminal Law course was the Death Penalty. Professor Levenson asked for volunteers to argue for and against the death penal. Normally, I don’t jump at opportunities like this, I prefer to watch and observe other students try to make coherent arguments in front of their skeptical peers… Yet, my had shot up. It was almost involuntary. And I found myself on the side representing “against” the Death Penalty.

There were three of us and we split duties. I chose to make the moral argument against the death penalty. What follows was my basic argument.

In the USA, murder is against the law. One citizen may not take the life of another. This is a good law and is a basic law in any civilized country. The law is based upon our sense of morality. That means that the starting point when thinking about the morality of taking another’s life is, that it is immoral.

Of course there are exceptions. One who fears for his life may defend his life and is justified in killing his would-be murderer. This is called self-defense.

The application of this defense is very specific. There are other defenses or justifications to First Degree Murder but none will serve as a complete defense, they will only mitigate the charge or perhaps affect the sentencing. In other words, taking the life of another is never completely justified unless it to save one’s own life.

There should be no exception for the government. The State and Federal Governments have a duty to observe the same laws of morality the citizens must observe. The only moral excuse for killing is in self defense. Self defense can only be argued when the danger is imminent. Once a murderer is apprehended and incarcerated there is no self defense excuse. An incarcerated prisoner poses no imminent danger, thus the taking of his or her life is by definition immoral.

We are not bound to punish criminals by the same heinous acts they committed. The law of our country does not hold lex talionis. We don’t punish a criminal with the same act he criminally committed. We shudder at the thought of torturing a torturer or raping a rapist or battering a batterer, how could we be so callous about taking the life of a killer.

We have no moral ground to stand on if we take the life of a murderer. Taking the life of a killer simply turns us into murderers.

Related posts:

1. World Against the Death Penalty Day
2. Should a Death Row Inmate Be Able to Choose to Die?
3. Murder In Jewish Law and United States Law
4. Death Row Inmate Wants to Donate His Organs But Can’t
5. The D.C. Sniper's Execution

Yesterday we began learning about Homicide in our Criminal Law class at Loyola Law School. Our Criminal Law professor is world famous Laurie Levenson (she is in the news very often). She is an incredible teacher and a very successful practitioner. Studying Criminal Law in her class is a privilege. (Plus, she brings baked goodies for the class and sometimes stops at Schwartz’s Bakery to get some kosher goodies for the two Kosher observant Jews in the class. Pretty nice!)

After learning the building blocks of Criminal Law we began our unit in homicide.

One of the first homicide cases we read was a brutal murder of a 10 year old girl. The defendant offered no defense. He undeniably killed her in a brutal fashion, while intoxicated he took a knife to her, stabbing her about 60 times as he chased her around the house. The court decided that he could not get the death penalty.

Why? The court says that brutality of a murder is not a factor in considering whether a murder is in the 1st degree (incurring the death penalty). First degree murder requires “premeditation” and that is analyzed by looking at 3 factors. 1) planning 2) motive and 3) manner. In this case, the defendant did not plan, had no motive and the manner was not a methodical way of killing. It was random and unnecessary. The court sentenced him to life in prison and he escaped the death penalty.

Many of my co-students found this very difficult to swallow. Here we have a violent, brutal murder who will not get 1st degree murder. Some of my co-students wanted the murderer brutally killed in retribution.

In Jewish Law, murder and some other capital crimes are punishable by a death penalty. How does one “qualify” for the death penalty? A murderer must be warned by two witnesses that his offense will incur the death penalty. He must acknowledge their warning. Then he must commit the murder with 10 seconds. This approach to capital punishment reflects a basic tenet of Judaism.

Judaism is all about moral choices. Therefore, Judaism punishes the murderer who is making a clear, coherent choice. Only with fair warning and a true understanding of one’s actions are the murderer’s actions a clear indication of moral choice to commit murder.

In our Law School case, the fellow did not make a conscious choice. The 3 factors that demonstrate premeditation all demonstrate a choice by the murderer. Planning a murder shows that the murder truly understands what he is doing and is choosing his action of murder. Same for motive and manner. We need to see a conscious choice to take a life for murder to be in the 1st degree.

A drunk man who crazily kills for no reason is not a murderer in the 1st degree. He is a sociopath and must be locked up. But to take his life away via the death penalty requires more than just killing another. It requires a moral choice.

Judaism teaches us that our life is made up of little more than the moral choices we make. Our choices are who we are.

Choose wisely.

Related posts:

1. A Moral Argument Against The Death Penalty
2. The Difference Between Murder and Terrorism
3. World Against the Death Penalty Day
4. I’ve Been Published! My Article On Felony Murder Is Online
5. Should a Death Row Inmate Be Able to Choose to Die?