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Berns argues that the death penalty can be seen as consistent with the principles of a constitutional democratic society. Berns notes that our criminal justice institutions impose punishments only s a last resort and with the greatest reluctance (McKenna and Feingold 174). Berns addresses the issue in terms of constitutional arguments, which are arguments based on law and gravitating toward the decision of the Supreme Court that overthrew most death penalty laws in 1972. Berns appears to be examining the issue in depth and then trying to reach a conclusion, as if he had doubts in his own mind that need to be resolved.
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Yet, in truth Berns couches his arguments in such a way that it seems he has been convinced of the need for a death penalty for some time and that he is now seeking justification for that view. He essentially raises a few of the arguments of opponents of the death penalty and then knocks them down, generally just by refuting them as if the refutation were a simple statement of fact. Abolitionists state that capital punishment is wrong because it springs from revenge, and Berns says revenge is a good thing.
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Capital punishment is denied in a cause by Justice Brennan because it is a denial of human dignity, and Berns says this only means that the vilest criminal is thought to have human dignity. This is less an argument than an affirmation of a belief in the death penalty:.
The American people are entitled as a people to demand that criminals be paid back, and that the worst of them be made to pay back with their lives (McKenna and Feingold 180).
Bern's arguments are based on factual claims when he sticks to questions of legal precedent and court interpretations, but he bases his refutation of the opposition primarily on value claims which he does not substantiate. Berns believes that capital punishment is an ethical position, one supported by a large percentage of the public, and one that the public has a right to assert in order to uphold higher values of self-protection, retribution, and the assertion of the value of life (which seems contradictory given that the death penalty involves taking a life).
