Re: Poll

and there shouldnt. i am against the death penalty--for everyone. i think if the state allows the death penalty, then, by proxy, everyone living there is responcible for that death--if you are a citizen in a governemtn "of the people", then it is the poeple that did murder, when a death penalty is carried out. THAT is why i dont like the death penatly, because i feel, that in a moral way, each criminal killed is done so with the consent of the people, and therefore they're taking part in murder, even IF that person deserved it (and, as you have seen, i do think some people deserve it... )

odd, i know, and poorly explained, i'm sure..

It is far from odd. It is one of the deepest questions on the death penalty debate.

On one side, it has been argued that this is a reason why the EU forbids the death penalty and will likely continue to do so for the foreseeable future. There is not a consent of Europeans in favour of the state taking the lives of anyone - and thus the EU should not approve of death penalty. Conversely, support for death penalty in the USA, while it has a great regional variation (predictable as usual), runs high. The American people (or at least, the people of some states) are approving of co-executing the death penalty on any given convicted criminal. You could argue that then every capital sentence should be put to vote in either the legislature or directly to referendum. But there you have a problem - unless you get unanimity, it means someone is opting out of the execution to take place, therefore consent is not complete, therefore death penalty should not take place... But requiring unanimity is as good as explicit abolition, because for every instance someone will vote against...

Besides, this begets the question of how far are you willing to govern by referendum??? Why subject to referendum or legislative vote only capital sentences??? Why not other sentences too??? After all, as pointed out countless times, incarceration is paid by the taxpayers, isn't it?? And Pandora's box once open is always open. If you admit that the public vetoes death sentences, whichever the threshold of votes is for this - one, a large minority, a simple majority, an oversized majority or unanimity; then there is no reason why the public shouldn't be able to do the exact opposite and increase penalties on someone - even to death penalty. But if you do that, why even having independently written sentencing guidelines?? The people should do all the sentencing itself, for that matter. Which stops being rule of law - by that point it's dictatorship of the majority, and they'll be quick to forgive anything from anyone they like and to kill alive anyone they hate...

This tension has been there for centuries and every theorist who has been mostly "democratic" and clear on a death penalty position has faced this problem.

But that is why there even is a separation of powers. There is an abdication of the people to the judiciary to decide who deserves death (or any other) penalty and who doesn't. The abdication is there precisely to prevent an overemotional public from unfairly both hanging someone they hate and sparing someone they love. That is why the judge and / or jury are supposed not to take into account their emotions and only decide according to reason what the appropriate sentence is. Ever since the people accepts the separation of powers, it is a way of recognising their own shortcomings and consenting to not even being asked about the decisions taken by the judiciary, which everyone becomes equally entitled to expect will be fair and devoid of emotional influence, negative or positive alike.

As the anonymous quote says: "Lawyers are not cold, heartless beings; the others are a problem for the interpretation and application of the law."

But the issue is deeper - if the public has a right to say no to death penalty, do they not have the same right to ask for it at some point???

Will the public be able to be cold and heartless enough to refuse to execute, say, Jack McClellan???

That is the point.

And that is why, while I concede that the popular consent argument against death penalty is extremely strong and very hard to beat in a policy debate, accepting it is still a Pandora's box that is best left locked.