Wisconsinites will have their say on the death penalty come Nov. 7. Although the vote is a non-binding referendum, the result of the vote will undoubtedly influence our Legislature's agenda for years to come.

Consequently, legislators made a concerted effort to influence voters with the language of the referendum, the text of which is awfully tempting to the untrained eye. But the actual meaning of these words are both threatening to the United States' Constitution and our own safety because this advisory referendum eliminates discretion and ironically creates strong disincentives for observing law.

For those unaware of the advisory referendum, it calls for the death penalty in cases of first-degree murder where the conviction is supported by DNA evidence. The thought of DNA evidence seems to inspire hope in those afraid of false convictions, but concerns exist regardless of this supposed guarantee of guilt.

By creating a system where DNA operates as a basis for both guilt and sentencing, the Legislature has created a system of unitary trials soon to become the norm for Wisconsin.

In Furman v. Georgia, the United States Supreme Court claimed that by holding unitary trials, or trials by which guilt ensures only a sentence of death, the state of Georgia violated the Eighth Amendment.

Although the advisory referendum does allow for a bit of interpretation, the apparent goal of this legislation is to punish more severely those found guilty through DNA evidence. By indicating the type of evidence necessary, Wisconsin is dangerously close to making unitary trials a normality.

For those in disbelief — consult the language of the advisory referendum, which states: "Should the death penalty be enacted in the State of Wisconsin for cases involving a person who is convicted of first-degree intentional homicide, if the conviction is supported by DNA evidence?"

Nothing is said about using the death penalty as merely a possible punishment. Rather, the referendum clearly establishes the death penalty as the sole punishment for first-degree murder. If the Legislature acts in this manner, we would be taking discretion out of justice; the very fabric of fairness would be eliminated from our system.

Just as threatening to our society is the qualification for meeting this sentence. By limiting the policy solely to first-degree murder, the Legislature has not necessarily ensured that the vilest of crimes will be punished the most severely.

In targeting this crime, the Legislature's goal was honorable: They thought that they would punish the most abhorrent crimes according to common standards of morality. But in doing so, the Legislature has arguably fallen short of this promised goal.

States like Texas, notorious for their use of the death penalty, have more stringent standards for implementing the death penalty against convicts than Wisconsin would. Texas punishes only certain types of first-degree murder, forcing prosecutors to meet a litany of qualifiers before pursuing the most extreme sentence.

For Wisconsinites this fact will be surprising. Even Texas, the state that has executed more people than any other since 1976, has legislation that is more humanitarian than Wisconsin's proposed death penalty language would.

Although this may be meaningless to those who astutely recognize that the people who will be given the death penalty are still first-degree murderers, what this means for our legal system is uncertain and likely more violence than it could ever deter.

When a Legislature allows the death penalty to be implemented freely, it invariably creates a system where bad crimes become worse.

Criminals who commit first-degree murder in Wisconsin currently have strong incentives to commit no other crimes. After committing a heinous crime, criminals can at worst expect life in prison. But, for first-degree murderers who are assured that their guilt will lead to their deaths, the incentive disappears.

What makes Texas different from Wisconsin is that some first-degree murderers have an incentive to not commit more crimes because life in prison is a realistic sentence.

But, Wisconsin, if it chooses to enact the language given, will effectively eliminate the incentive for criminals to not break more laws. When facing certain death, criminals have no incentive to obey laws ranging from traffic to sexual assault.

When we make the death penalty a sentence that is easily administered like this, the opposite of deterrence occurs. And naívely believing that criminals have no concept of incentive is to ignore the basis for the motivation of committing crimes in the first place.

If in 2005, Wisconsin already had 194 murders, how many more can we possibly expect with this system? Rather than giving in to our primitive sense of retribution, we must appeal to the logic of the law, for it protects our civil liberties and our safety.

Voting "no" on the advisory referendum would avoid many of these problems and send a message to our Legislature that Wisconsinites stand united against illogical solutions to enduring problems.

Robert Phansalkar ([email protected]) is a senior majoring in languages and cultures of Asia and political science.