My response was:
Any legal consensus that makes it impossible to hang Osama bin Laden or Khalid Sheik Muhammad makes no sense.
Now, I know, many will accuse me of prejudging the terrorists, but I'm not: it's the other way 'round. It's the death penalty opponents, who do not believe that putting someone to death by law is ever justified, who prejudge the case against bin Laden or KSM. They've already determined that, no matter what, these guys would not be put to death. Me, I'm saying that the case has still got to proven in the appropriate court, but if they're proven guilty of the crimes we say they've committed, then not to put them to death is an injustice of titanic proportions.
As for the more run-of-the-mill capital defendants, I believe that we either execute too many people in this country or too few. And I have every sympathy for those who wrestle with the whole machinery of capital cases -- on both sides. I'm not a bloodthirsty man, and I don't think it should be easy to put people on death row.
But I do believe that certain crimes are acts of horror -- things so stunningly evil that we could not punish them as they truly deserve without committing unspeakable acts ourselves. To address this (rather small) class of crimes, the death penalty is appropriate, because merely putting them to death with the minimum amount of pain and suffering is -- in this context only -- a restrained response to what they have done. In other words, the death penalty should not be seen as the "ultimate" punishment, but merely as the "maximum" punishment available. We could think of punishments worse than this, but beyond this we will not allow ourselves to go.
I don't care if we only use the death penalty once a century. For that matter, if no one ever commits crimes worthy of death, I wouldn't miss the death penalty at all. But to say, a priori, that NO crime should EVER be punishable by death is an appalling, absolutist opinion that outrages justice.
Justice Robert Jackson objected to the death penalty on principle. As lead prosecutor at the Nuremberg War Crimes Trials, he presented the cases against Hitler's chief henchmen. Summing up the case at the end, he did not call for the death penalty. He did not recommend any penalty at all. He simply told the court what each defendant had done, and left it to their judgment. Most were found guilty (but not all); most of the guilty were sentenced to hang (but not all). And Mr. Justice Jackson never criticized the death sentences that were handed down. How could he?