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Cogito Ergo Kill?

Should we adopt a more demanding standard for imposition of the death penalty? Massachusetts Governor Mitt Romney has introduced legislation that would permit it only in cases in which a jury is certain. Mitney Wants To Kill

It is unclear why Mitney is aching to kill. The Bay State abolished the death penalty in 1984.  The New York Times wonders whether this is a salvo in the governor's bid for national office. If so, how dark the horizon over which the Sun sets in this land of the free. This is how to build a constituency?

The bill has superficial appeal.

Killing would require conclusive scientific evidence, such as DNA or fingerprints.

Killing would require that scientific evidence be examined by a review board.

Killing would require the defendant to have two, or even three, lawyers.

Killing would require different juries for the guilt and penalty phases, if the defendant so chose.

Of course, all this comes at great expense. The governor believes voters want to kill at the expense of better roads, schools, pay for state workers.

And, of course, it assumes that scientific evidence is worth its weight in gold, which, in turn, rests on the assumption that all is well in the labs and forensic departments of our law enforcement agencies. What exempts a technician from mere venality?

A recent article in the American Criminal Law Review, Vol. 42, No 1 entitled, "Absolute Certainty and the Death Penalty," suggests that all these bells and whistles are really illusions. Writing about the use of absolute certainty in capital cases, Professor Erik Lillquist argues that the unintended consequences of a standard higher than proof beyond a reasonable doubt might undermine other goals of the criminal justice system.

I wonder whether certainty is attainable in capital cases, or, indeed, in life. I keep waiting for Rene Descartes to emerge from the grave and apply his methodoligical doubt to life and death decisions. Or why not Wittgenstein, who last century wrote a definitive work on the topic of certainty?

We are far from certain of anything, ever. What we have are useful illusions and assumptions we care not to challenge.

Governor Romney's flirtation with death is not an effort to assure that justice is done. It is pandering dressed up with the CSI effect.

Death is different. We cannot guarantee that we will always get it right. Trying to do is prohibitively expensive and a counsel of despair. Why not just end the charade and abolish state-sponsored killing? That's the least expensive way to make sure we never kill in error.

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