Applying Consistency To The Retrievable and Irretrievable Consequences of the State

BY MIKE PRESUTTI

Today, Monday December 17th, speaking of his signing of a bill that struck the death penalty from New Jersey’s penal code, Governor Jon Corzine relied on the argument of potential error raising a moral question concerning the taking of an innocent for some greater ideal of the state. Probably unwittingly, Governor Corzine has thus laid the basis of the pro-life argument against abortion. Perhaps from the mutual vein of intended and unintended consequences, we can see the validity in avoiding both practices, which are prone to error and inexact in their prosecutions. Perhaps too, those who fought the Governor on this issue will readily accept it and realize they were fighting against the very same arguments raised in killing the unborn.

First let us establish some legitimate perspective on life itself.
Without life, we can enjoy no other right, enumerated or otherwise, hence, issues that concern the possible eradication of life warrant our most deliberate and certain judgment. Moreover, when such issues force us to make sober decisions, we must choose to err on the side of the least possible consequence because even the slightest “margin of error” represents the deprivation of someone’s life, lest that life be our own or someone we love.

Governor Corzine rightly made the margin of error the cornerstone of his opinion, hopefully he can wrest himself past the politics of abortion, and see the same rationale at work. As for those who opposed him, hopefully they will embrace the governor and see past their own politics which continue to embrace the death penalty. Interestingly enough, as loaded as these issues appear to be religious; empirical data provides us with an immense argument.

Any worthy historic study of law reveals law’s religious influence, yet American jurisprudence has shaped an impenetrable barrier between church and state. Despite this formative barrier, many pro-lifers continue to limit their advocacy to one of religious dogma. There is however, another more rationally compelling and popularly palatable pro-life argument that lies at the very foundation of our American law. There is an argument for life that is not necessarily religious.

Early American law plainly acknowledged the inherent frailty of human
judgment. The shortcomings of human judgment inspired a government
of “checks and balances” and a judiciary that relies on a unanimous concurrence of a criminal jury through a “beyond a reasonable doubt” standard. William Blackstone, whose 18th century Commentaries were the single greatest influence upon early American law, put it best when he wrote, “It is better that ten guilty persons escape than one innocent suffers.”

Despite an exhaustive due-process gauntlet, the scores of recent evidentiary DNA exonerations of convicted death-row inmates reveal our system’s fallibility. Statistically, if these exonerations reflect a random sample of all death-row populations, then we can reasonably surmise that a similar percentage of inmates, whose cases do not possess reliable remnants of DNA evidence await an unjust death. If we can state that an error rate exists for all convicted inmates, not just those who cases possess DNA evidence, then we can safely guess that there are people sentenced to death who do not have DNA evidence or whose evidence has become unusable.

Some advocates of the death penalty may contend that there are no absolutes in anything so a tiny margin of error is a tolerable cost of maintaining an ordered society. Curiosity however compels one to wonder how long such advocates would cling to their unwavering views if the innocent lives at issue belonged to them or to their loved ones.

The perpetual debate over when life actually begins lends great uncertainty to the abortion issue. In the 1973 landmark case of Roe v. Wade, the United States Supreme Court attempted to provide legal uniformity not necessarily to when life begins but rather, when the state is compelled to protect life within the womb. The court opined that “the point of viability,” when a fetus could survive outside the womb, was the point in gestation where the state could protect an unborn life. This so called “point” however is not a point at all but rather a window of weeks arrived at entirely by medical guesswork just as an obstetrician guesses at a birth due date, which is rarely accurate. Hence, the fate of a possible life, even by Roe’s own principles, rests on a margin of error of days or weeks.

The court arrived at their expedient trimester standard through 1973 neonatal medical technology. Thus, Roe’s trimester standards could actually represent a sliding ruler of sorts tied to advancements in medical technology. Since 1973, premature viability has increased and continues to make strides. Once “gray zone” infants, which are infants born premature as small as 1.1 pounds, which can fit in the palm of your hand, were laid in a corner of the delivery room and allowed to expire. Today many of these infants, delivered before the end of the second trimester as young as 22 weeks of gestation, live and grow to be our fellow citizens.

The Equal Protection Clause of the Fourteenth Amendment embodies a basic distain for ambiguity and inconsistent application of justice.
It is said that the fourteenth amendment is a directive that under the law all persons similarly situated should be treated alike, by the same standards of law. The practicalities of abortion however belie this spirit because medical “verdicts” can vary significantly from one medical practitioner to another and can even depend on a physician’s own values on the subject. A women who wishes an abortion but is carrying past the end of the second trimester, can “doctor shop” until she finds a practitioner willing to call the pregnancy earlier and abort the fetus. Here, similarly situated fetuses and not judged by the same standards. Their fates can depend completely on guesswork.

As Governor Corzine eloquently inferred, in matters of life, we should choose to err on the side of the least possible consequences. If we do not put a convict to death, he will live out his life in prison. However, if we kill an innocent person we can never retrieve his life nor right our error. The consequences of death are irretrievable. If we prohibit common abortions, full-term pregnancies will inconvenience many a women’s life for upwards of five months. If we allow the abortion of a fetus, whom personhood is certainly within the realm of scientific reason, we can never retrieve that life nor have we fulfilled the state’s obligation to protect life liberty and pursuit of happiness. For without life all other rights are expunged.

The decisions become clear when you weigh the consequences at stake; the inconvenience of upwards of five months of someone’s life against the possibility of terminating someone else’s entire life. Caution must be our guide as our governor’s words suggest. Why can’t we err on the side of the least consequence? Why can’t those of us who strive to set public policy on issues of life treat such matters as if it were their own lives or the lives of those people they love?

Governor Corzine has set New Jersey at the forefront of one of today’s main issues of life; hopefully he can apply that same wisdom to the other life issue of abortion, which involves millions of more lives than those eight men once sitting on our state’s death row and certainly, lest not this writer judge, more innocent.

Let us laud the good governor today and prompt him to action tomorrow.

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