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updated 1/15/2004 3:52:43 PM ET 2004-01-15T20:52:43

Although I support the punishment, prosecutors are using the death penalty too often.  It is no longer reserved for the worst of the worst, and has, instead, become a garden variety punishment.  That means more mistakes and less faith in the fairness of the sentence. 

Since many prosecutors don‘t seem willing or able to better choose which cases should qualify, maybe it‘s time to make it harder for jurors to impose it.  Right now in the 38 states where the death penalty is an option, jurors generally have to weigh the aggravating and mitigating circumstances and determine whether the aggravating circumstances, or the reasons to execute, outweigh the mitigating ones, or the reasons not to. 

Usually the prosecution has to prove at least one aggravating factor beyond a reasonable doubt.  Now, New York‘s highest court is considering a case that would up the ante, increasing the standard of proof for the death penalty from beyond a reasonable doubt to beyond any doubt.  Some prosecutors are worrying that this will make the penalty too difficult to impose.

Maybe,  but it may be the only way to make the punishment more accurately fit the crime.  The death penalty is under fire.  DNA has proved that many on death row are innocent, leading some states to reevaluate all their death row cases.  I want to ensure the death penalty remains on the books.  But for serial murderers or those who torture their victims or kill children, the most heinous of crimes, we have to make sure that the right person is convicted and for a penalty so severe.

Where life is at stake, the criminals ought to be the type of people most reasonable jurors would want to execute.  Not, for example, the alleged driver of a getaway car for a person who shot someone in a botched robbery.  For that person, is life without parole really a travesty of justice?  

For the death penalty to  “survive,” it‘s going to have to adapt to changing times-- getting it right, but not necessarily getting it so often. 

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