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The Death Penalty as the Answer to Crime: Costly, Counterproductive and Corrupting, 36 SANTA CLARA LAW REVIEW 1069 (1996)


I appreciate the opportunity to make some remarks about capital punishment and about the crime debate in our country today. Unfortunately, what is called a crime debate is really no debate at all, but an unseemly competition among politicians to show how tough they are on crime by supporting harsher penalties and less due process. The death penalty and long prison sentences are being put forward as an answer to the problem of violent crime. This approach is expensive and counter productive. It is corrupting the courts and diverting our efforts from the important problems of racial prejudice, poverty, violence and crime. It is not making our streets any safer.

The power of government is increasingly being used to wage class warfare top down against the poorest and the most powerless people in our society: immigrants, women and children who are on welfare, and those who are accused of crimes. These people have no lobby and no ability to influence legislation or the decisionmakers in government. They have no political action committee. Unlike Rupert Murdock, they cannot drop by and meet with the Speaker of the U.S. House of Representatives while he is contemplating a book deal. Their only protection against the passions of the moment is the Bill of Rights.

The Bill of Rights is becoming a casualty of the war on the poor. There has been very little discussions of the consequences to our society. The United States Congress, in the first one hundred days after the Republican takeover with the “Contract with America,” behaved much like the legislatures in Georgia or Alabama, where bills are often passed without hearings, without a great deal of opposition, without much debate, and without the members being informed about what they are voting on.

In the discussion of crime measures, the Bill of Rights is dismissed as nothing more than a collection of “technicalities” which burden law enforcement. The war against drugs has all but eliminated the Fourth Amendment’s protection from unreasonable searches and seizures from the Constitution. Police departments and law enforcement agencies all across the country have become corrupted, but we have very little to show for this effort in terms of having reduced the amount of drug use in this society. Now, those who profess to be our leaders are talking about a broader war, the war on crime, that will be waged at a much greater cost.

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