As a general rule of history, it can be said that no social or political argument is ever finally settled in favour of the conservative view on any matter. At times, people have felt that they had arrived at an especially felicitous arrangement of affairs; it is sometimes said, even now, that we have arrived at the "end of history" and the triumph of capitalistic democracy. But invariably the liberal urge to reform, to recreate, to renew seeps in. Do-gooders begin to do good; they slowly ratchet society away from the consensus, implementing revolution by trifles. Fighting for the status quo is never glamorous.

In the United States, such a process has been underway with respect to death penalty for many decades now. In other industrialized countries, of course, capital punishment has long been eliminated, and a new "end of history" arrived at. In Canada, the public has never ceased favouring the death penalty, but there is no prospect of ever bringing it back. Only retrograde America persists in executing the most heinous of criminals, a tendency for which it has received continual condemnation from without and within.

Lately American judges have decided to legislate on the subject, as judges will. They are reliable opponents of the death penalty, perhaps because they fear that their position may require them to impose it. (No one does such a thing without feeling dread and ego-bruising uncertainty.)

The U.S. Supreme Court ruled 6-3 June 20 that executing the mentally retarded constitutes "cruel and unusual punishment" under the Constitution, and forbade it. Typically, the judges cited "evolving" standards of "public decency" to justify their own preferences. For most of us, it is probably questionable whether decency requires us to believe that it is less cruel to kill a normally intelligent person than a retarded one. It is certainly not in line with our "evolving" understanding of the mildly retarded to deny them basic responsibility as moral actors, or to presume they can never be taught right from wrong. Indeed, as things are "evolving", the term "retarded" is becoming quite unacceptable, and even making the underlying distinction may be a faux pas. But if the U.S. Supreme Court, in its wisdom, wishes to protect those intelligent enough to feign mental retardation, so be it.

More interesting, though of less direct legal import, was July 1's ruling from New York federal District Judge Jed Rakoff (see Tuesday's Citizen, page C16). Judge Rakoff, presented with a federal death-penalty case, declared all federal executions unconstitutional; the decision is not binding on other courts, but may be influential. As adventures in logic-chopping go, it is a beaut.

It is a given, says Rakoff, that executing an innocent man would violate his right to the due process of law. Among state courts, there have been several cases of death row inmates exonerated by new evidence, and while no federal prisoner has been thus exonerated since the federal death penalty was reintroduced in 1995, allowing federal prisoners to be executed would certainly bring about "the fully foreseeable execution of numerous innocent persons." Which would be, in their cases, unconstitutional. Q.E.D.

Of course, if a judge could "fully foresee" someone's innocence, surely he wouldn't sentence the poor fellow to death in the first place. What Rakoff is saying is that, as a matter of statistics, judges and juries are certain to get some cases, or at least one case, wrong. Since that is so, we cannot possibly envision applying an irremediable punishment such as death. This amounts to saying, basically, what we all already know--human beings are fallible. This is undeniable, irrefutable, and, applied to the capital punishment question, perfectly ridiculous. Of course judges and juries are going to make mistakes, but if we are, as a society, to lie prostrate and say "We can't impose the death penalty on anybody," then what is left of our right to punish anyone?

When we let a criminal out of prison at the end of twenty years without liberty, he does not consider himself unpunished just because he is now free. He has lost twenty years of his life. We cannot give him back his original youth and health and time. And, in fact, when we free an exonerated death-row prisoner, one acknowledged innocent, we cannot return these things to him, either. Funnily enough, though, we feel tremendously self-satisfied when a David Milgaard or a Rubin "Hurricane" Carter is liberated. We make movies to celebrate the fact that the poor fellow did not die in prison. The Milgaards and Carters are no doubt glad not to have been killed, but then again, I am certainly glad not to have been sent into prison for decades for no reason. To me, that alone does not mean no one is ever deserving of imprisonment.

All realistic punishments that we know of, save perhaps monetary fines, are irreversible. If you flog a man, you cannot go back and unflog him. If you imprison him, you cannot turn back the clock and give him the lost years, which are the essence of the punishment. And so too with death. Rakoff's argument is, in disguise, a condemnation of the idea of punishment. I believe that is the real reason it is welcomed whenever it appears. There are a good many people who do not believe in punishing criminals at all. At times it seems as though they all have jobs in the Canadian correctional system.

It is a shame that Rakoff's belief has been policy here since 1976. But it is so, and we congratulate ourselves for it, believing that we have somehow ascended from the mire of cruelty. One wonders how long the U.S. will be able to hold out against the most powerful force in the universe: the fatuous smugness that accompanies the eternal reforming, renewing impulse.

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