ELLIOT: Chances are good for Justice Lake’s death penalty argument

Only Nixon could go to China.

Richard Nixon, the staunch anti-communist, made an historic trip to Red China in 1972. While the adage about his journey is apt, it speaks to a wisdom that is older than the 1970s: only someone with an unequivocal record on one side of an issue has the moral and political wherewithal to bring about true changes of opinions when they are necessary.

In North Carolina, we recently have seen another example of the Nixon-China truism.

I. Beverly Lake, Republican and former chief justice of the North Carolina Supreme Court, wrote this week in the Huffington Post that he is wavering on his support for the death penalty. Not only are his arguments sound, but they seem perfectly constructed — when combined with his stature and résumé — to actually persuade those who currently support the death penalty, especially conservatives.

First, far from being an example of an erstwhile conservative falling into liberalism in his dotage, Lake makes a clear case based on new evidence; he maintains his conservative principles while avoiding some of the less convincing arguments that conservatives opposed to the death penalty have made recently.

It’s important to note that Lake does not make the argument that state execution of murderers mm at least morally competent murderers mm is wrong. In fact, he says that in many cases he presided over “the death penalty seemed like the only suitable punishment for the heinous crimes that had been committed.” (While there is nothing with arguing in total opposition to the death penalty, it is unlikely to persuade many who put victims’ families and their anguish before the suffering, however real, of criminals.)

Lake’s new evidence is that, through advances in science and the work of bodies such as the Actual Innocence Commission — which Lake created — it is almost certain that North Carolina and other states had innocent persons on death row (and raises the very real possibility that the state has executed convicts for crimes they did not commit in the past). His other main argument is that many of those on death row are mentally ill. He says that since, in his long experience, our system is not able “to determine who possesses sufficient culpability to warrant a death sentence,” the death penalty is likely unconstitutional.

But what is brilliant about Lake’s piece is that he makes only the arguments that have a good chance of winning over his audience. When trying to persuade others, it is a common mistake to shoot every arrow in one’s quiver, regardless of the relative quality of each missile. Lake avoids two arguments, one specious and one frail, that those in opposition to the death penalty often tout to conservatives.

The specious argument is that conservatives should not support state executions of murderers if they oppose the abortion of innocent babies. Equating the welfare of one class mm murderers mm with the other mm the unborn mm is insulting at best. (If the contention is that some on death row are wrongfully convicted, i.e., not murderers, then a different argument is at work.)

The second bum argument is cost. The problem is not that this assertion is untrue or irrelevant; cost should be part of every public policy calculus, and the death penalty amasses frighteningly high costs for taxpayers. Consider that the state almost always pays for the prosecution, defense, and court costs as well as room and board for an inmate while endless appeals are resolved.

The rhetorical snag with this argument is that conservatives bristle at the strategy whereby opponents of a project or law erect legal hurdle after legal hurdle, then claim the government should not “waste” taxpayers’ money. Rather, they argue, proponents should give in because the costs are so high. It’s like Gen. Sherman lamenting that War is Hell after he did his best to make it so.

It is too soon to say whether Lake’s opinion will hold sway over legislators or voters. Regardless, his method of argument is a striking contrast to the let-me-insult-you-until-you-change-your-mind tactic that passes for debate too often nowadays.