Laws Work When We All Agree on Them : Effective punishment requires a moral consensus, which the death penalty is too divisive to obtain.

I believe in punishment, but not in the death penalty.

Do you care?

Probably not, for this is an issue that depends more on faith than reason, more on personal experience than public discussion. But as executions resume in California, much depends on our willingness to listen to one another on this divisive issue.

We often speak as if criminal law operates by the brute force of punishment, but more important to its success is moral consensus. Criminal law works (when it does) because it carries the moral weight of virtually everyone in the community. Effective criminal law requires a deeper and broader agreement than that needed to win elections or impress a pollster.

Such agreement is hard to come by on any issue in a pluralist and officially secular democracy. On an issue of life and death, agreement appears beyond our reach, almost beyond imagination. That in itself should give us pause.

In some ways, the modern history of the death penalty in California serves as a lesson in the working of American constitutional democracy. Californians have engaged in a fundamental political, constitutional and moral debate about the death penalty ever since 1972, when both the California and U.S. Supreme Courts found the death penalty, as it existed then, unconstitutional.

In the next decade and a half, these courts scrutinized all efforts to re-enact the death penalty and impose death sentences. The courts seemed to ask the public: Are you sure you want to do this? The majority always said “yes.”

In perhaps the nation’s most dramatic showing of popular support for the death penalty, in 1986 the California electorate voted out Justices Rose Bird, Cruz Reynoso and Joseph Grodin, largely on the perception that they were blocking executions.

Since the late 1980s, now-conservative courts in Washington and San Francisco have taken a different approach. Both courts have upheld death-penalty verdicts and, reflecting predominant public opinion, have displayed increasing impatience with efforts to delay executions.

The execution of Robert Alton Harris proved that the people have the last word, even in constitutional law. But the debate over the death penalty does not end with the resumption of executions. There is a difference between majority opinion and consensus.

While opponents may no longer look to the courts for salvation, death-penalty supporters face their own challenge. In the long run, the viability of the death penalty requires moral consensus.

Like all punishment, the death penalty should work to bind up the wounds of criminal violation; it should serve to revive and restore the moral community. To this end, supporters must answer a number of questions. Here are a few:

Supporters must explain more clearly what it means to deserve death. In most punishment decisions, we consider only the offender’s choice to harm another. Robert Harris’ premeditated decision to kill two teen-age boys represented a disregard for human life that required forceful, official response. As they did for Harris, defense attorneys may urge consideration of the defendant as a person, with many other qualities and potentials; they may provide a sympathetic explanation of how he came to commit his crimes, but the offense itself usually determines the sentence.

Yet as a punishment, death is different. In executing someone, we judge more than a criminal action. We judge a person, a life. That makes it hard to leave anything out.

Supporters will have to persuade us that execution does not pander to the national taste for violence. From our attachment to guns, to our love of crime dramas with bloody, never legal, conclusions, we are fascinated by killing. Our homicide rates hugely exceed those of comparable industrial democracies. Will executions soothe the urge to kill or inflame it?

History suggests that at some point we will execute people who are probably innocent of the crimes they were convicted of. The recent case of Clarence Chance and Benny Powell, freed after 17 years in prison for a murder they say they never committed, should stand as a caution. Supporters of the death penalty must persuade the rest of us that the risk of error is acceptable.

For many years, liberal courts used their power to stop executions and to argue for restriction or elimination of the death penalty. Voters disagreed. Now conservatives hold power and can mandate executions. But in a real sense, the issue remains open.

But does anyone care what anyone else thinks? Will anyone, supporter or opponent, listen? In these anxious and volatile times, we seem more inclined to rage at each other and our government than to work toward solutions. The whole idea of consensus seems suspect.

We may not want to talk about the death penalty--this issue can be too personal, too emotional. Yet there is no alternative. To work, punishment requires moral force, and that requires consensus. The debate must continue.