Hammurabi and the Religious Right

The courtroom is filled with emotion as parents give wrenching testimony of suffering caused by the brutal rape and murder of their child. Screams and tears, the centerpiece of the penalty phase, punish everyone in the courtroom.

Does a judge need to witness grief in order to determine the severity of punishment? Should his sentence be partially influenced by pleas from the murderer? Is any of this unseemly ritual necessary?

A bloodless crime for profit is one thing-killing for profit is something else. Crime, after all, should not be risk free. Yet, there are many people who oppose capital punishment no matter what motivated the killer. Others never consider motive. For them, death is the only punishment for a person convicted of first degree murder beyond a reasonable doubt.

Proponents on both sides of the issue cite several basic arguments. A condensed debate on capital punishment between the two might go something like this:

AGAINST: Executing someone for murder doesn’t restore the victim.
FOR: That’s OK, it makes me feel better.
AGAINST: Revenge is a primordial passion.
FOR: So is love.
AGAINST: Can’t you forgive?
FOR: Not at the moment.
AGAINST: I understand. But execution is not a deterrent.
FOR: Then why do we allow execution for cop killers?
AGAINST: We shouldn’t. A life sentence is worse than death.
FOR: Then why not execute the killer as an act of compassion?
AGAINST: Vengeance is mine, sayeth the Lord.
FOR: An eye for an eye, a tooth for a tooth.
And so on, and on, and on.

Perhaps we should consider this:

Since capital punishment is a profound moral issue with powerful arguments and emotions on both sides, why not leave the fate of a convicted murderer in the hands of the victim?

This can be accomplished by having adults at a specified age sign a legal document which states that if ever they should become murder victims, the murderer should or should not be subject to capital punishment. Much like a Living Will, DNR or DNI order, this document would be as simple to implement as any Health Care Proxy.

Assuming that the identity of the murderer is certain and that the murder is in the first degree, other factors can be taken into account by the creation of a standard proxy form. Consider the following:

That in the case of child murderers, the parents or guardians would determine the fate of the killer. Should there be disagreement between the parents (or guardians), legal stipulations should be in place so that only one proxy is honored. Possibly, a proxy for execution would automatically void an opposing proxy. In any case, only proxies authorized prior to the crime would be honored. This would remove the ambivalence of emotion from the equation, along with the ugly spectacle of the penalty ritual.

‘Prior’ is the operative word because it cancels the notion of ‘heat of the moment’ decisions. We often hear that we cannot trust our individual judgment about capital punishment when someone we know and love has been murdered; that decisions of this kind should be made in the cool of voting booths, not in the heat of grief; that society is the better judge of the issue, not a person intimately associated with the victim.

Many survivors have a sudden “change of heart” when murder hits home. Their former disdain for vengeance can suddenly turn to a passionate need for revenge. Conversely, there are those who had always favored the death penalty but suddenly find a need to forgive the murderer of a loved one.

But what would the victim want? Her proxy would be the ultimate settlement of the issue. It would remove the collective will from a profoundly private matter, and posthumously place it in the hands of the individual most affected by the murder: the victim.