Academic

Democracy -- does it mean what the NY Times thinks it means?

By Tung Yin

The New York Times has an editorial today against the death penalty that reiterates what seems to me to be the best argument against capital punishment: its cost.  As the Times notes:

Perhaps the most extreme example is California, whose death row costs taxpayers $114 million a year beyond the cost of imprisoning convicts for life. The state has executed 13 people since 1976 for a total of about $250 million per execution. This is a state whose prisons are filled to bursting (unconstitutionally so, the courts say) and whose government has imposed doomsday-level cuts to social services, health care, schools and parks.

I find the fiscal argument quite compelling.  But why does it cost so much to try to execute someone?  There are penalty phase trials (to decide whether the sentence should be life imprisonment or death), there are statutory rights to appeals and post-conviction relief, and there are rights to counsel.  What I found puzzling in the Times editorial was this observation:

There is also a 15-to-20-year appeals process, but simply getting rid of it would be undemocratic and would increase the number of innocent people put to death.

Did the Times mean that it would be undemocratic for a state government to abolish the right to appeal death sentences by fiat?  Or that it abolishing the right to appeal would be undemocratic no matter who decides to do it?

Neither possibility fits "democratic" very well.  If duly elected state legislators abolish the right to appeal (putting aside whether that's constitutional), why isn't that democratic?  I don't imagine the Times means that it's not democratic because it wasn't the product of direct democracy.  I mean, technically, it would be true that if the legislature did it, it would not be democratic so much as "democratic republican" . . . but that distinction doesn't make sense in the context of the anti-death penalty argument that the paper is advancing.

And if the right to appeal death sentences were abolished by, say, a voter initiative, what could be more democratic than that?  (Note: I don't mean to suggest that voter initiative democracy is necessarily a good thing.)

So what does the Times mean by "democratic"?  Does it mean "humane," "moral," or "appropriate"? 

Full post as published by The Yin Blog on September 28, 2009 (boomark / email).