Alongside the family members of both murder victims and death row exonerees, Pfeifer testified before state legislators Wednesday in favor of House Bill 160, which would abolish the death penalty in Ohio. Afterward, Pfeifer told reporters at the Ohio Statehouse that Ohio’s death penalty policy no longer serves the state, and that capital punishment should be abolished.

Pfeifer noted that, while he has a duty to follow the law, he is also obligated to “step forward and advocate for changes that would lead to improvement.”

“I think abolishing the death penalty would be a needed improvement,” Pfeifer said. “It will happen. Will it be today, tomorrow, in this session of the General Assembly? More problematic. … but the day will come when Ohio no longer has a death penalty.”

Pfeifer supported his declaration (an especially bold one, as Ohio has recently pioneered a new, more “humane” single-drug method for lethal injection) by pointing to a national trend away from capital punishment, such as the U.S. Supreme Court’s prohibition on executing the mentally retarded.

“I think the next step will probably be taking a look at those who had a serious mental illness at the time they committed the crime,” he said, offering as example a recent and grisly case in which the murderer was caught after confessing the crime to a priest. In doing so, the deranged man demonstrated that he understood what he had done was wrong, which automatically made him eligible for the death penalty.

Pfeifer also opined that the electric chair was a preferable method of execution, if its value as a deterrent were to be taken seriously.

“If there’s any argument for it as a deterrent, the more unpleasant, the more unspeakable the method of execution, the more likely it would be to be a deterrent,” he said of the electric chair. “But, if you look at the data from states that don’t have [the death penalty], you see roughly the same number of murders, aggravated murders, so it’s impossible to make a case that the death penalty deters anyone.”

When asked whether he regretted his role in the death penalty’s restoration, Pfeifer said he was mostly just surprised at the way the Ohio Supreme Court had broadened its reach.

“’Proper calculation and design’ [premeditation] is about a millisecond, and when we put it in, we were [targeting] people who planned a murder,” he said.  “That’s no longer the case, and that’s the result of a number of Supreme Court decisions, many of which were made before I even arrived at the Court.

“We clearly meant to get the garden-variety domestic dispute, where murder ends up being the outcome, out of the death penalty,” he continued.  “Some of my colleagues say, ‘You couldn’t have meant that,’ I think they view it as a harsh view toward women, but that is in fact what we were trying to do then,” he said, adding that the definition of kidnapping, which can be used by a prosecutor to qualify a defendant for the death penalty, had been greatly expanded, as well.

“We have a number of cases where, if you point a gun at a person for a few minutes, you are now guilty of kidnapping,” he said.

While not part of his testimony, Pfeifer added that citizens would want to move away from the death penalty as they realize what it means culturally.

“We don’t find ourselves in great company when we look at the countries that still use the death penalty,” he said.  “I think we’re seventh in the world. We follow China, Saudi Arabia, Iran. … That’s the kind of company we’re keeping with the heavy use of the death penalty.  And I think that’s uncomfortable to most citizens, as they begin to recognize that most of what we consider ‘developed countries’ don’t use the death penalty at all.”

Watch Pfeifer talk to reporters:

(Photo: Flickr Getty Images/Dave Delay)

In a press release today, Rehwinkel Vasilinda says she introduced the bill due to “growing concerns over the possible execution of wrongfully convicted prisoners and the exorbitant cost to the state.” House Bill 4051 would “delete provisions providing for death penalty for capital felonies.”

According to Rehwinkel Vasilinda’s press release:

“I’m not in the business of dispensing vengeance. As a state representative, I am in the business of making decisions to help keep Floridians safe from crime while spending taxpayer money prudently. HB 4051 will achieve both goals,” said Representative Michelle Rehwinkel Vasilinda.

Executions are carried out at staggering cost to taxpayers. In its 2000 report, “The High Price of Killing Killers,” the Palm Beach Post found that Florida spent approximately $51 million each year to enforce the death penalty.

…

The recent protests and national concern over the execution of Troy Davis is emblematic of the lack of trust more and more people are demonstrating in the justice and accuracy of state sponsored executions. That is not good for the respect and dignity for the law.

“One of the underlying questions in the debate about state-sponsored executions is what is the proper role and place of government? The appropriate question for state government is how do we keep people safe from crime in the most cost effective way? When you analyze the numbers, state sponsored execution is not the correct answer,” says Rep. Rehwinkel Vasilinda.

Her statement was released the day before the state of Florida is set to execute a man who was convicted of killing a Coral Gables police officer 33 years ago.

According to The Miami Herald, “Manuel Valle is scheduled to be executed at 4 p.m. Wednesday, more than eight weeks after his original execution date.”

Vasilinda said “it cost at least $51 million a year and over 30 years to arrive at the day of execution for Manuel Valle, who is scheduled to be put to death by what may be Governor Scott’s first signature on a death warrant.”

“With that $51 million we could put 850 law enforcement officers on Florida’s streets, as well as adding more FDLE investigators and equipment to our arsenal against crime,” she said.

“The refusal…by the Georgia Board of Pardons and Paroles to grant Troy Davis clemency underscores the vast systemic injustices that plague our death penalty system,” Denny LeBoeuf, the director of the Capital Punishment Project of the American Civil Liberties Union (ACLU), said in a statement. “The death penalty system in the United States is arbitrary, discriminatory and comes at an enormous cost to taxpayers, and it must be ended.”

Instances of doubt, such as the case of Troy Davis, first and foremost highlight the grave cost of taking the life of a man who has continued to proclaim his innocence since the start of his prosecution. But additional housing and prosecutions costs, especially heavy in death penalty cases, add up in cash-strapped states that continue to use the death penalty. In California, keeping an individual on the maximum-security death row costs $90,000 annually per inmate, and with the state’s current death row population of 670, the cost is $63.3 million annually, according to the Death Penalty Information Center.

The cost of the entire system in California, including prosecutions and court cases, is $137 million per year — if the number of crimes that encompass the death penalty were narrowed, a report by the Center notes, the cost of the system would narrow to $130 million per year.

The Federal Office of Defender Services found that defending a murder trial in which the death penalty is sought — an average of $620,932 per prisoner — is eight times that of a murder case where is it not sought.

Surging in the national presidential polls, Perry joined seven other Republican White House hopefuls at the Ronald Reagan Presidential Library in Simi Valley, Calif. NBC Nightly News host Brian Williams and Politico’s John F. Harris grilled candidates on foreign policy, health care, national security and climate change, leaving social issues like abortion and same-sex marriage mostly out of the dialogue.

Moderators asked the governor to address Texas’ substantial lag in key areas when compared to other states, including its position as last in number of uninsured residents and its low high school completion rates. When questioned about the cause of the state’s staggering number of those without health care — 26 percent of those under age 65 — Perry pointed to the federal government as the culprit.

Perry also downplayed the consequences of public education cuts made this legislative session under his governorship — $4 billion slashed from K-12 classrooms, leaving an estimated 12,000 teachers out of work — calling them “thoughtful reductions absorbed by our schools.”

Perry jumped back into echoing his past controversial statements about Social Security, once again calling it a “Ponzi scheme” — a sentiment expressed in his anti-Washington book “Fed Up!” which has become an anchor for his campaign rhetoric.

“Anybody that’s for the status quo with Social Security today is involved with a monstrous lie to our kids, and it’s not right,” he said.

Former Massachusetts Gov. Mitt Romney, who many consider Perry’s most formidable opponent, shot back with a defense of the system and its benefit to senior citizens saying, “our nominee has to be someone who isn’t committed to abolishing Social Security but is committed to saving Social Security.”

Often evading direct answers to questions, Perry took the opportunity to swing his replies back to his jobs creation record, figures revealed to be misleading by previous reporting from the Texas Independent. Perry claims to have secured Texas as the hub for job growth nationally, though many of those jobs are low-paying ones.

“We’ve created 1 million jobs in the state of Texas at the same time America lost 2.5 million,” said Perry. But from 2007 to 2010, the number of Texans earning minimum wage or less increased 150 percent — 330,000 jobs — solidifying Texas as the nation’s minimum wage jobs leader, a fact moderators were quick to point out.

“95 percent of jobs we created were above minimum wage,” Perry countered — though his campaign’s justification for that statistic was a 2010 measure, that 5.3 percent of all Texas jobs were hourly minimum wage ones. Only hourly jobs — just over half the total jobs in Texas — can be factored into minimum wage measures, but of those, 9.5 percent of them are at or below the minimum wage.

Perry’s “95 percent of jobs” measure is misleading, then, because he’s not talking at all about jobs “we created,” but total jobs in Texas last year. Under Perry’s watch, the proportion of hourly jobs at or below the minimum wage rose from 5.8 percent in 2000 to 9.5 percent in 2010 — but as PolitiFact reported during the 2010 Texas governor’s race, increases in how much minimum wage pays complicate the question. It’s impossible to tell how many of those are new jobs added at minimum wage, and how many are old jobs drawn into the measure because the minimum wage was raised.

Without getting bogged down in his statistics, Romney took aim at other aspects of Perry’s job growth record, pointing to Texas’ lack of state income tax, its status as a “right-to-work” state and rich natural resources as contributing factors, opening up a heated exchange between the two presidential hopefuls.

“Gov. Perry doesn’t believe he created those things. If he tried to say that, it’s like Al Gore saying he created the Internet,” said Romney.

Perry went back to statistics, answering, “We created more jobs in the last three months in Texas than [Romney] created in four years in Massachusetts.” He said former Democratic Gov. Michael Dukakis created three times more jobs than Romney did. Romney charged back, claiming George W. Bush and his predecessor created jobs at a faster rate than Perry.

During his first presidential debate Perry said, “I kind of feel like the piñata here at the party,” but the GOP contender didn’t shy from swinging back at his opponents, including U.S. Congressman Ron Paul (R-Texas), who noted Perry’s support for Hillary Clinton’s health care plan while he was Texas Agriculture Commissioner. Perry responded with some old dirt of his own, bringing up a letter Paul wrote to Ronald Reagan in the late 80s, renouncing the former president after the country became mired in massive debt as result of his policies.

Perry did own what’s likely to be the night’s most remembered moment, late in the debate when he was asked if he has lost sleep over the 234 executions he’s presided over as Texas governor. Before he could answer, the question received a chilling, immediate round of applause from the audience. Perry said no, he didn’t lose sleep over it, “I think Americans understand justice.”

Valle was convicted of the 1978 killing of a Coral Gables police officer, and first sentenced in 1981. He then waged a decades-long series of appeals, including most recently a challenge to Florida’s lethal injection drug mixture and procedures, which allowed him to delay his scheduled execution. #

The Florida Supreme Court issued a ruling Thursday allowing the execution to proceed. It is scheduled for Sept. 1. #

The bishops argue that a sentence of life without parole would be enough to ensure public safety, and that “human dignity – that of the convicted as well as our own – is best served by not resorting to this extreme and unnecessary punishment.” Their full announcement is below: #

Tallahassee, FL – In an August 3, 2011 letter to Governor Rick Scott, the bishops of Florida urged the governor to stay the execution of Manuel Valle scheduled for September 1, 2011. Non-lethal means of punishment protect society and respect the life of all persons, even those who have done great harm. Text of the letter follows: #

Dear Governor Scott, #

We renew our appeal to you to end the use of the death penalty in our state. We urge you to stay the execution of Manuel Valle scheduled for September 1, 2011. #

We concede the right of the State to impose the death penalty when absolutely necessary, that is when it is otherwise impossible to defend society.  However, given the ability of Florida to protect its residents by incarcerating inmates for life without possibility of parole, we pray you will exercise that option. #

Willful murder is a heinous crime; it cries to God for justice.  Yet, God did not require Cain’s life for having spilt Abel’s blood.  While God certainly punished history’s first murderer, he nevertheless put a mark on him to protect Cain from those wishing to kill him to avenge Abel’s murder (cf. Genesis 4:15).  Like Cain, the condemned prisoner on death row – for all the evil of his crimes – remains a person.  Human dignity – that of the convicted as well as our own – is best served by not resorting to this extreme and unnecessary punishment.  Modern society has the means to protect itself without the death penalty. #

The killing of Officer Louis Pena caused great suffering and pain for his family and friends, and we pray they were consoled as they mourned the loss of their loved one. We are hopeful that Officer Gary Spell and his family are healed from his traumatic experience as he came to the aid of his fellow officer. An execution re-opens the emotional wounds of victim’s families and does not bring back or honor their loved one. True peace can only be achieved by forgiveness. #

Killing someone because they killed diminishes respect for life and promotes a culture of violence and vengeance. We affirm the right and duty of the State to assure public safety and punish the guilty by incarceration, which allows the inmate an opportunity for reflection on their offenses and sorrow for the pain they have caused others. #

Governor, we ask you to stop state sanctioned killing by sparing the life of Manuel Valle, allowing him to serve out his sentence in prison for the rest of his natural life. #

Respectfully in the Lord, #

Most Reverend Thomas G. Wenski
Archdiocese of Miami #

Most Revered Gerald M. Barbarito
Diocese of Palm Beach #

Most Reverend Robert N. Lynch
Diocese of St. Petersburg #

Most Reverend Frank J. Dewane
Diocese of Venice #

Most Reverend John G. Noonan
Diocese of Orlando #

Most Reverend Felipe J. Estévez
Diocese of St. Augustine #

#

Tennessee law precludes executing people who are intellectually disabled, and, thanks to Monday’s ruling, an IQ a score of 70 or below is no longer a stand-alone indicator. Now mental health expert testimony will be considered in the ruling.

According to the Memphis Daily News, the decision is based on the appeal of death row inmate Michael Angelo Coleman (PDF), who was convicted for robbing and murdering Leon Watson in Memphis in 1979. Coleman was convicted of six prior violent felonies, and though he met the IQ standard for imposing the death penalty, two experts testified he was intellectually disabled, according to the appeal.

“While a person’s I.Q. is customarily obtained using standardized intelligence tests … the statute does not provide clear direction regarding how a person’s I.Q. should be determined and does not specify any particular test or testing method that should be used,” Justice William C. Koch, Jr. wrote for the Supreme Court. “Ascertaining a person’s IQ is not a matter within the common knowledge of laypersons. Expert testimony in some form will generally be required to assist the trial court in determining whether a criminal defendant is a person with intellectual disability.”

The court found that in Coleman’s case, the lower courts incorrectly treated his intellectual disability and mental illness as two separate causes of his adaptive limitations.

While a growing number of states have imposed de facto or legally binding moratoriums on the death penalty and others have done away with it altogether, Texas, far and away the nation’s leader in executing prisoners, continues to apply it without reservation. Cleve Foster, who was scheduled for execution today, is one such case. The outcome of his most recent appeal may have a major impact on the future of the death penalty in Texas and throughout the country.

Cleve Foster, a Gulf War veteran, was convicted in 2002 of the murder of Nyanuer “Mary” Pal, a Sudanese refugee. There is an abundance of support for Foster, evidently stemming from a belief in his side of the story and respect for him as a former U.S. Army officer — he was a sergeant first class and is known as “Sarge” among the other death row inmates. To others, Foster’s guilt is not in question, and indeed, the more than half-dozen contradictory stories he and his accomplice, Sheldon Ward, produced during the initial trial stretch the bounds of believability (several, for example, involve Pal initiating sex with an unconscious Foster, which would conveniently explain away DNA evidence). Foster was also connected to an earlier and strikingly similar murder that Ward was ultimately convicted for. In 2009, Ward died of a stroke while awaiting execution.

The news, then, that Foster has been granted a 30-day reprieve by the U.S. Supreme Court in spite of reports from as recently as this morning that he’d exhausted all appeals may be a sign of a changing tide in the American criminal justice system. Although Foster continues to base his argument on his insistence that he’s innocent, the Supreme Court had already struck down an appeal on that basis in January. The reason for the reprieve lies in shoddy legal defense in previous proceedings; the Supreme Court order Tuesday did not mention pentobarbital, though his lawyers have not given up on the argument.

An article that appeared this morning in the online edition of The Atlantic (it went to press when Foster was still scheduled to die later tonight) explained the problem with the drug. Modern lethal injection requires a series of three drugs: an anesthetic to make the procedure painless, a paralytic to halt lung function and a third drug to stop the heart. As The American Independent has reported, there is virtually no legal way for states to acquire sodium thiopental, the anesthetic traditionally used, as the last U.S. manufacturer of the drug ceased production in January.

To make up for the sodium thiopental shortage, Texas had planned to instead use the similar drug pentobarbital; Foster was to be the first person in the U.S. executed with it. Anesthesia, however, is a notoriously tricky business, and pentobarbital has never been tested with respect to its application in executions. If not applied correctly, it would fail to mask the excruciating pain of the paralytic, which would also stop Foster from making any outward sign of pain. Pentobarbital is actually banned in veterinary medicine for use in conjunction with pancuronium bromide and potassium chloride, the paralytic and heart-stopper, respectively.

A report (PDF) that the ACLU of Texas, the ACLU Capital Punishment Project and the Center for International Human Rights at Northwestern University School of Law issued in response to the Foster case notes this fact bitterly. The introduction concludes, “It is no exaggeration to say that Texas regulates the euthanasia of reptiles more strictly than the execution of human beings.”

There has been a moratorium on the death penalty in Maryland for more than four years, ever since the state Court of Appeals ruled in December 2006 that the state improperly adopted its death penalty procedures. However, the death penalty (and the five men on death row in Maryland) has remained in limbo since then. Last week, a coalition of Democrats in the state House of Delegates and the state Senate submitted a bill that would outlaw the death penalty outright. In the past, Republicans in the Maryland Senate have quashed such legislation, but its supporters are hoping this time will be different. Governor Martin O’Malley (D), who has made no secret of his opposition to the death penalty, has in the past pushed for a repeal and would certainly sign the bill into law if it makes it through the Senate.

In Illinois, a death penalty repeal bill made it through both the House of Representatives and the Senate back at the start of the state legislative session in January. It’s been sitting on the desk of Illinois Democratic governor Pat Quinn ever since. Like Maryland, Illinois has had a moratorium on the death penalty for years now. Then-governor George Ryan issued it in 2000 as a result of evidence that Illinois had executed several innocent people in the past. Gov. Quinn has only said that he will “follow his conscience” in deciding whether to sign or veto the bill, but he has taken no action in the weeks since the bill was handed up to him. He has until March 18 to make a decision.

Meanwhile, the Montana state Senate passed a bill Monday outlawing the death penalty. The bill has to go back to the Senate floor for another vote as part of Senate operating procedure, after which it will be sent to the House for a vote. Things look grim for Montana’s repeal law as compared to Maryland’s or Illinois’s, however, following massive gains for Montana Republicans in November. Those elections gave Republicans a full two-thirds majority in the state House of Representatives, up from a 50-50 split between Democrats and Republicans in Montana’s House.

While these three and other states continue to grapple with the death penalty, it does remain legal in 35 states, as well as in federal and military cases. Yet even in states where it is legal, even uncontroversial, the death penalty has been meted out with increasing rarity in recent years. Virginia, once second only Texas in the number of people executed per year, only sentenced one man to death in 2010, in a retrial of a 1998 case following the discovery of new DNA evidence. Even Texas was down to 333 people on death row by the end of 2010, the lowest number since 1991. Overall, 112 people were sentenced to death in the U.S. in 2010. This is the lowest total since the death penalty was reinstituted in the U.S. in 1976.

What accounts for this drop? One cynical explanation may simply be a matter of supplies. Hospira, the last U.S. manufacturer of the lethal injection drug sodium thiopental, ceased production earlier this year over concerns that it would be held criminally or civilly liable if its sodium thiopental were used abroad in executions. Last year, a deal was uncovered between Arizona and a British supplier of the drug. It is illegal in the UK to knowingly sell drugs that will be used to execute people.

Another possible explanation is at least slightly more generous to human nature: According to the National Archive of Criminal Justice Data, the violent crime rate has plummeted in recent decades, standing in 2009 at half its 1990 rate. (Though incarceration rates have simultaneously skyrocketed; there were nearly five times as many Americans in prison in 2009 [PDF] as there were in 1980 [PDF], and the U.S. continues to have the highest incarceration rate [PDF] in the world. More than half of the almost 2.3 million people in prison or jail in the U.S. are nonviolent offenders, according to most recent data.)

Whatever the cause, use of the death penalty has been in decline for ten years now and the drop shows no sign of stopping.

“I do believe the constitutionality of the death penalty is settled precedent going forward,” she said.

She used the issue to again draw distinctions between her philosophy and the philosophy of former Justice Thurgood Marshall, for whom she clerked during the Court’s 1987-1988 term. Marshall was an opponent of the death penalty and was one of the five justices to concur in Furman v. Georgia that Georgia’s uneven application of the death penalty constituted cruel and unusual punishment.

Attorney General Eric Holder (WDCpix)

When Attorney General Eric Holder announced earlier this month that the suspected plotters of the Sept. 11 terrorist attacks would be tried in civilian court, he also promised to seek the death penalty for all of them. But the heated debate that followed over the supposed dangers of trying “the worst of the worst” in a New York federal court has largely eclipsed the question of whether the death penalty is actually the best punishment for convicted terrorists.

[Law1]Some of the men have not only proudly claimed responsibility for the attacks, but also said that they want to be executed and martyred. Setting aside any moral concerns about the ultimate punishment, it’s not clear in this case whether the death penalty would act as a deterrence or an incitement to other potential terrorists. When it comes to jihadists who willingly risk or relinquish their own lives for their cause, is the death penalty really such a good idea?

“It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” wrote Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, in a report released earlier this month. “Al Qaeda will exploit an execution by the U.S. government as a significant propaganda victory, no matter how fair and legitimate the trial,” he added in an article in The Guardian.

Even former Attorney General Michael Mukasey said last year that he hoped that these men would not be executed. Asked by students at the London School of Economics in 2008 whether he thought the Sept. 11 defendants, who were then facing military commission trials, should get the death penalty, he said: “I kind of hope they don’t get it. Because many of them want to be martyrs and it’s kind of like the conversation, you know, between the sadist and the masochist. The masochist says ‘Hit me’ and the sadist says ‘No.’ So I am kind of hoping they don’t get it.”

Other legal experts agree, but for different reasons. “I think the fact that the defendants want to be executed shouldn’t count either way,” said Michael Dorf, a law professor at Cornell University, who advocated against the death penalty for these suspects when they faced military commission trials last year. “However, I do think it is legitimate for the government to worry about the possible counter-productivity of the death penalty here. That is, if the government had concluded that executing [Khalid Shaikh Mohammed], et al were likely to substantially aid Al Qaeda in recruiting, a decision not to seek the death penalty could be based in part on that worry.” According to Dorf, executing the men not only wouldn’t deter other terrorists from committing similar crimes, but could even encourage them.

This debate comes at a difficult time for President Obama and his attorney general. The president has promised to close the Guantanamo Bay detention center by Jan. 22, but faces huge challenges. Those range from where to try the suspected terrorists housed there to where to send those that have been cleared for release but can’t be sent home due to potential persecution or political instability. Republicans, citing the dangers to the United States of trying terrorists on our soil and claiming the terrorists don’t deserve the rights accorded to criminal defendants in federal court, have pushed to try most terror suspects in military commissions. Many Democrats, prominent legal experts and former military leaders, on the other hand, have argued that civilian federal courts are better-equipped to handle such cases and would confer a legitimacy on the trials that is critical to restoring the United States’ reputation around the world. In deciding to try the Sept. 11 suspects in federal court, then, the Obama administration is eager to look like it’s still being tough on terrorism and its perpetrators. That may be influencing the decision to seek the death penalty.

Other countries have faced similar debates in the face of repeated terrorist attacks, and ultimately decided that executing terrorists was counterproductive. Although the death penalty is now outlawed in all European Union countries, when the U.K. House of Commons debated whether to repeal the death penalty in Northern Ireland in 1973, there was widespread agreement that executing terrorists, who often wanted to martyr themselves, would only lead to increased violence and terrorism.

The question raises a classic conundrum for criminal law theorists. Punishment in the American justice system is supposed to punish the criminal in a way that seems proportionate to the crime and also deter others from committing similar acts. But if suicide bombers are blowing themselves up for the cause, how much of a deterrent is the death penalty to these sorts of terrorists?

“It doesn’t make sense as a deterrent,” said Columbia Law Professor Jeffrey Fagan in an email. “Deterrence assumes a rational actor who perceives that the punishment costs exceed the benefits of the crime, and who will not act against his or her own self-interest. in this case, the punishment is no match for either the rewards of striking a significant blow at ‘The Great Satan’ or the rewards of martyrdom.”

Richard Dieter, Executive Director of the Death Penalty Information Center, agrees. “Terrorists expect to die or want to die,” he said. “There’s a chance that the death penalty feeds into that.” After the federal death penalty in the U.S. was expanded in 1994 to include terrorism, Dieter notes, “the very next year Timothy McVeigh blows up the Oklahoma federal building. So I don’t think anybody believes it’s much of a deterrent. It might even be an attractor.”

Of course, another purpose of criminal punishment is retribution. Under that theory, the criminal is supposed to get his just desserts –– an eye for an eye, in biblical terms. “For retribution, it doesn’t matter what his preferences are,” says Claire Finkelstein, professor of law and philosophy at the University of Pennsylvania Law School.

“Simply put, these monsters who specifically target civilians have no right to live,” wrote Rabbi Stuart Weiss, director of the Jewish Outreach Center of Ra’anana,in a recent op-ed in the Jerusalem Post, arguing that Israel, which has abolished the death penalty for almost all crimes, should reinstate it for terrorists. “They have forfeited the most basic human privilege by virtue of their crimes; any punishment save death is too good for them and is an obscene insult to the grieving victims of terror.”

It’s the classic notion of retribution. “The idea is that you return to the defendant what he has inflicted on the victim,” said Finkelstein. She herself doesn’t really think that’s possible, though. “There is no way to kill this man nearly 3,000 times, or force him to experience what his victims suffered as they tried to escape the twin towers,” she said.
Still, logical and even strategic considerations are often not what guides such decisions.

“There’s a lot of politics involved,” says Dieter. The Obama administration’s latest decisions on closing Guantanamo and trying terror suspects in federal court has opened it up to a rash of criticism from conservatives . “Maybe it’s part of this total picture that we’re closing this prison down there but that doesn’t mean we’re going to be soft on them,” said Dieter. “Once you open up the whole political world, the calculations are different.”