We in Alaska are fortunate to not have the death penalty. We have not had it for about 50 years. I am glad we don't have it. While that may seem obvious as a defense attorney, I can say that I grew up a strong believer in it. However, day after day working in the criminal justice system has shown me what a lot of people already know: there are a great many problems with the death penalty.
Now, though, Alaska appears to be re-opening the debate. This year, a legislator has introduced a bill to allow the death penalty for certain crimes.
I understand on a gut level the idea that someone should have to pay for certain crimes with their life. However, that argument is essentially an emotional, instinctual, retributive reaction. Aristotle said that law was reason without passion, yet can anyone imagine circumstances in which passions are inflamed more than in the decision to seek death?
The problems with the death penalty are legion: it is applied disproportionately upon the poor and minorities; it has no deterrent effect; police and prosecutors do not always play by the rules; mistakes have pointed to innocent people being convicted of crimes; it is prohibitively expensive, etc. A great resource for those interested in this subject is Gerber and johnson's book The Top Ten Death Penalty Myths. In this book, the authors go point by point through the arguments in favor of the death penalty and show how truly flawed it is.
I would also point to the dissent of Justice Diaz in a recent Mississippi post-conviction petition in a death penalty case. It begins at paragraph 48 for those who are interested. Justice Diaz's dissent should be required reading for those who support the death penalty.
I have some optimism that this bill will not be enacted. There is actually a fair amount of resistance to the death penalty among a number of legislators and even in our own Department of Law. While I would like to think that our legislators will examine the issue 'without passion' and decide that the errors, the irrational disparities in application, and other well known problems are sufficient for Alaska to reject implementing the death penalty. But I think that it is more likely that legislators will see the bill. And when they see the price of Alaska oil, they may decide that they just cannot afford it.