First, let's take care of the obvious: There are some pretty nasty characters out there who have committed some pretty despicable crimes.
And, when you add up all of the hardships and deprivations that supposedly warped their natures and led them to a life of violence, then try to balance these against the horror and loss of their victims-- well, there is just no balancing the two.
OK, so maybe this is too obvious.
But we can't even begin to consider the pros and cons of the death penalty without first acknowledging the self-evident truth that some of the people sentenced to die are really, really bad.
Now, here's the second truth that is self-evident: the death penalty doesn't work.
Look at Maryland. Maryland has one of the most carefully crafted laws in the country. State law meticulously defines the types of crimes that would make a defendant eligible for the death penalty, and it lists, just as meticulously, the mitigating circumstances juries may use when considering clemency.
The fact-finding part of a trial is carefully separated from the sentencing part, and the law mandates appellate review. Just recently, juries have been given the option of sentencing a defendant to life without parole as a palatable alternative to death.
These niceties may infuriate the most bloodthirsty among us, but they clearly respond to the desires of the mainstream.
Most people support the death penalty, according to opinion polls, but they want it reserved for the most heinous crimes. They want to be as certain as possible the state is executing the right person. They want the process to be fair and equitably applied. And there are times when mitigating factors do lead juries to vote for a lesser penalty -- life or life without parole.
Yet, despite all of these precautions, Maryland's law clearly does not accomplish what we want it to.
The death penalty isn't always reserved for the most heinous offenses, or for those criminals considered the most hard-core and cold-blooded.
It hasn't deterred crime, here or elsewhere. It hasn't help make people feel any safer or more secure. It hasn't slaked the public's thirst for revenge.
And above all, it isn't demonstrably fair. For instance, race and economic status continue to be apparent factors in executions.
Nationwide, black defendants are disproportionately tried, sentenced and executed. Prosecutors are far more likely to apply the death penalty in a case involving a white murder victim than if the victim was black, Hispanic, or Asian.
Meanwhile, a study by the American Bar Association suggested that in many instances poor people were represented by incompetent or inexperienced counsel who fumbled important evidence that may have helped their client, missed judicial or prosecutorial mistakes as grounds for an appeal and overlooked crucial legal avenues that could have gotten convictions or sentences overturned.
And keep in mind, many states aren't nearly as particular about who gets sentenced as we are here. Seven states in the Deep South, known collectively as the "Death Belt," have accounted for 70 percent of the 149 executions since the Supreme Court reinstated capital punishment in 1976. (Maryland has not executed anyone since 1961).
It was these wild statistical disparities that led U.S. Rep. Don Edwards, D-Calif., to introduce the "Fairness in Death Sentencing Act" July 12.
Edwards' bill attacks the apparent racial disparity in the application of the death penalty by allowing defendants to use statistical data as evidence of unfairness. It echoes last year's "Racial Justice Act" which passed the House but died in the Senate.
The bill appears to come at a bad time since this same Congress has just voted to extend the death penalty to a widening range of federal crimes. And the Bush administration has been lobbying ferociously for procedures that would limit death-row appeals, making the road to execution both faster and easier.
But think about this for a moment: If you are like most people, you support the death penalty in certain cases. But isn't it just as important to you that it be applied fairly? Don't you want to be sure that we execute the right guy, not some poor schmuck with an incompetent lawyer?
I think so. I believe fairness remains an important mainstream value -- even though the public discourse, not to mention public policy, often suggests otherwise these days.