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Celebrate International Women’s Day with KO-OP Radio all day Thursday, March 8 on 91.7 f.m. in Austin & online at . Co-sponsored by The Radical Mothers Voice & Code Pink Austin 0 2007 International Women’s Day Kip Debate, continued from page 13 If we’re inevitably going to punish innocent people, we should take pains not to do it in a way that is irreversible. I think the morality of a policy can indeed turn on such niceties. The inevitable killing of innocents constitutes an unimaginably enormous harmall the greater because, unlike other punishments, it is irreversible. Your second-favorite argument for abolition, quoting your Washington Post piece, is that “the death penalty is unfair: the system favors white skin and devalues dark; it favors the wealthy and penalizes the poor?’ True enough. But the same could be said for all punishment, not just capital punishment, yet you wouldn’t abolish all punishment. Death is different, but why is it different in terms of equal protection? Frankly, I am less troubled by discriminatory treatment in the punishment of murderers than most forms of unequal treatment. I’m unmoved by the murderer’s brief: “Other murderers are permitted the luxury of life in prison because they’re wealthy or white, while I’m put to death.” Put aside the failure of your argument to move me. It might fail to move you if you subject it to your own analysis. You complain that focus on innocence-protection will lead not to abolition but to Romney’s approacha maze of rules safeguarding against wrongful execution. Let me offer this limited defense of my erstwhile governor: The death penalty statute that doesn’t actually kill anyone is the best kind. Whereas look at how some shrewd Texas governor will respond to your equal protection argument: “Okay, wiseguy, we’ll satisfy you: We’ll kill more whites?’ DRD: I used to have a similar response to your “murderer’s brief?’ The first time a lawyer told me that I should work on a death penalty case because only poor people are on death row, I said, half-jokingly, “The solution is to kill more rich people?’ That was my response because I think there are two fundamental principles in our country and our legal culture, one of which is equality. The equality principle means that the state cannot discriminate on the basis of certain criteria, which include race and wealth. Let’s imagine two cases. In one, the state kills someone who is innocent. In the second, the state kills someone who is guilty, but the reason he got the death penalty was because of race. In the first case, the state has made a mistake. In the latter, the state has violated a principle. It has betrayed something fundamental. In my view, the principle that might be violated when the state executes someone who is innocent \(assuming that there is any germane principle here pelling than the principle that is violated when the state executes someone because of race or wealth. Killing is wrong, and therefore must be justified. The two most common justifications for capital punishment are retribution and deterrence. Retribution doesn’t have much to do with what we are talking about at the moment, but deterrence does, and I think my principled objection to death will carry more weight with someone who believes in deterrence than your innocence argument. The believer in deterrence kills to save life. Even if he kills the wrong person, i.e., someone who is innocent, he still saves lives \(assuming his calculaConsequently, even if you prove to him that an innocent person has died, he can still answer, “Yeah, but I saved two lives.” But if I can confront him with a principle that has nothing to do with how many lives he has saved, he can answer me only by saying that saving lives is more important than living in accordance with our principles and values. He can say that, of course, but he won’t persuade me, because he’s wrong. Our principles are more important. That’s why we fight wars. All: You subtly distort the equality issue when you say “the reason [someone] got the death penalty was because of race.” the reason someone is executed. Skin color of culprit or victim may be a “but for” cause of an execution, but that’s not saying much. The crime one commits is generally the major reason for his execution. Remember the subtitle of that abolitionist classic by our old professor, Charles Black: The Inevitability of Mistake and Caprice. Our disagreement has crystallized to this: mistake versus caprice. I’m more bothered by mistake, you by caprice. \(I’m using “caprice” broadly to cover extralegal factors, fully aware that racism is often anything Caprice inevitably pervades the justice system. Racial and class inequality affect all punishments, not just capital. Yet you wouldn’t abolish all punishment. You didn’t take up my challenge to explain why the death penalty is different \(in I renew the challenge, and implore you to rise to it: In the great spirit of Lone Star justice, two strikes and you’re out! As for me, avoiding unequal treatment of murderers is not a high priority. By contrast, the imperative to avoid irreversibly punishing the innocent is about as clear and compelling as anything can ILTRADING COMP N’tr FOLK ART & OTHER TREASURES FROM AROUNOTHLINORLD 209 CONGRESS AVE AUSTIN 512/479-8377 j a -\\11,0PEN DAILY 10-6 04,4, FEBRUARY 23, 2007 THE TEXAS OBSERVER 23