Time Out on the death penalty, please
There are many excellent arguments against the death penalty, and TMV co-blogger elrod wrote passionately about them in an earlier post. From arbitrary and racist sentencing to the truly horrible risk of executing an innocent person, worries abound, because once the ultimate penalty has been carried out, there’s no going back.
Yet this latest Great Debate about capital punishment didn’t come up for any of these reasons. Instead, they arose yet again from questions about lethal injection, and whether this method is “cruel and unusual” under the 8th Amendment.
This continues to confound me. How is it that we can put a person under sedation for surgery, or even into a controlled coma, but we cannot manage to administer a painless death in an execution?
As it happens, Polimom is not against the death penalty on general principle. There is a class of crime that rises far above the others, and for which this penalty is suited: the torturous mutilation, molestation, and murder of children. In April I wrote:
There are, I believe, crimes that are so heinous – so beyond the limits of what society can possibly tolerate – that they call for the ultimate penalty, and atrocities like those committed against Jamie Rose Bolin, Dylan Groene, and the many (too many) others are where Polimom draws the line in the sand.
Yes, I worry about the possible miscarriage of justice against a wrongly convicted person. The evidence supporting a death penalty cannot be questionable — but there is nothing extenuating enough to explain or defend these types of crimes; even insanity will not do.
Was the murderer abused as a child? I don’t care.
Was he a good boy in school? Had a good job and lots of friends? No prior record?
I don’t care.
I care about the children who, like my own, are going about the business of growing up right now – today – all over the country. They’re playing with friends, or watching television, or swimming, or crying, or laughing, or being mad…. they’re in the process of learning about trust, and life.
I care about the lifetime still ahead for my daughter and her friends, and all those like them. I look forward to the years of memories yet to be experienced, even while I know that the memory books of the mothers and fathers and grandmas and grandpas and siblings of the lost children are finished now. End of story.
I care enormously about what the family of this Oklahoma girl is going to suffer, knowing the awful suffering of their daughter – that her last moments were full of terror and agony. There is nothing worse than this pain, and they will be engulfed in it for the rest of their lives.
This is the crime that rises above all the others, and for which the penalty must be death.
I still feel that way, and it’s in this context that I view “cruel and unusual”.
To me, there’s nothing more cruel or unusual than these outrageous, horrific crimes against children… and for their parents, what could possibly be more viciously ironic than knowing that the beast haunting their nightmares was spared because the punishment would hurt.
In truth, the arguments against the death penalty are valid all across our Criminal Justice system; sentencing is far too often subjective, arbitrary, and racist. And does anyone truly believe that a person released after twenty years for a crime s/he didn’t commit is not institutionalized and broken, or that their lives weren’t destroyed? There’s no “going back” there, either.
As California has ruled, the lethal injection implementation can, and should, be “fixed”; worries about whether an execution is painful should not be the foundation for the capital punishment debate.
While they’re “fixing” this, though, we need a time out — a temporary national moratorium on executions — so that the larger questions about retribution, sentencing models, punishment v. treatment, and the wider morality of the concept of capital punishment can be revisited.
There’s no reason the implementation of a sentence should be interfering with the much larger, and deeper, examination that needs to take place of the punishment itself, and the system in which it exists.
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7 Responses to “Time Out on the death penalty, please”
Thanks for your thoughtful rejoinder post to my comments about the death penalty. What you have outlined is what I often call the “some crimes are so heinous” argument for the death penalty. The argument goes like this: the death penalty is problematic for a host of reasons, but there are certain crimes so heinous that only death is appropriate as a punishment. If we’re certain of the defendant’s guilt and we’re certain of the heinousness of the crime, we should have the death penalty available.
I have a few objections to this line of argument. First, what criteria do we use to differentiate between this “especially heinous” category and other run-of-the-mill murders? We might consider evidence of torture, multiple victims, children as victims, etc. But is it really that simple in the end? These truly conscience-shocking crimes – like Jeffrey Dahmer or the case in Oklahoma – are indeed quite rare. But we have to remember that prosecutors try to make EVERY murder seem “especially heinous.” How is a jury supposed to know if a particular murder is “especially heinous” and not a “run-of-the mill” murder. The only real criteria, in the end, is emotion. And that’s where we get into trouble, especially with regards to race. Sure, there are a few high-profile examples of non-white victims of “heinous crimes” that captivate the nation’s attention: Dahmer’s victims were Laotian and black, the horrible case of the forced dissection of a baby in Illinois involved a black family. But there will be no more powerful pull in the courtroom than the fact that the perpetrator was or may have been black and the victim white. Prosecutors subtly pull this crap all the time, appealing to the “innocence” of the victim by playing up the “emotional connection” between jurors – usually majority white – and the victim. And race plays into this very often. The results, especially in the South where capital punishment is used more often than anywhere else, show that any “heinousness” standard would inevitably lead to more racial discrimination simply because many white jurors will find ANY murder of white people by black people to be “especially heinous.”
The other problem is a moral one: who is to say that there is any crime, no matter how heinous, that deserves only death. The death penalty is extremely cruel. Imagine being told that at some point you will be killed; you are told the date and time of that death, but there is always the remote possibility that some external force will stay the execution; your entire death is ritualized; and then, considering the FL and CA cases, the death might involve a horrible sort of slow suffocation. This is the essence of cruelty. That the defendant used exessive cruelty – heinousness – in committing the murder does not mean we should repeat the cruelty and heinousness in retaliation. These are vicious and despicable human beings we put to death. But they’re still human beings.
Let me be clear on this: if somebody killed somebody I loved, I’d want the killer dead. Every murder of a loved one is especially heinous. But I wouldn’t stop there. I’d want to kill that person’s friends and family for making them that way, or for chuckling at that murderer’s exploits. It’s about honor and vengeance at that point. When would my vengeance be salved? Probably never, which is why our judicial system cannot be based on personal vengeance. It must be based on justice, which involves higher principles than personal vengeance.
I certainly agree we should have a national moratorium on the death penalty. My hope, of course, is that a national moratorium is a first step toward abolition.
But we can’t stop using the death penalty to remove the offensive from our gene pool(snark). We will no longerbe in that select company of Iran and China. W was decisive when he killed women and the retarded in Texas, we need more leadership like that(snark).
Elrod, thank you for your response.
I disagree that we cannot put firm definitions around what crimes merit the death penalty.
As I wrote, though, I do agree that the race-related aspects are enormously problematic and very damaging to society. Sentencing disparities are a radically under-discussed national shame.
They are not, however, limited to application of capital punishment. In fact, even if we abolished the death penalty altogether, the disparities and flaws in the current system would still exist. There would still be possibility for parole into the community for some and life for others, depending upon the skill of the attorneys (as you say), would there not?
I think that, ultimately, the debate must not be solely around capital punishment – or the racial aspects of the application of the criminal justice system. I think we need to rethink our whole system of assessing and implementing punishment. “Cruel and unusual” was, in the days the Constitution was written, a reference to things like drawing and quartering, disembowelment, boiling in oil, and other such ‘niceties’. I doubt that the Founders meant it to apply to capital punishment per se, yet as we progress(?) as a society the death penalty seems more and more cruel.
I also agree – how do you define in acceptable legal terms just what crime(s) meet the definition for ‘extremely heinous’ and therefore merit the death penalty – and how do you ensure that zealous prosecutors won’t try and twist every case they have to make it fit that criteria? And, how do you keep certain elements of society from expanding the category? For example, there are some who now advocate that any child sex offender should be put to death – automatically. Great, but how about the parent who takes the “photo of baby on the bear skin rug”, which gets turned over to the DA by the photo lab assistant, who convinces a jury that this somehow is a ‘sex crime’ involving a child? Do mommy and daddy now face the needle? Common sense says “no way”, but the law isn’t about common sense – it is about interpreting and applying written rules governing conduct.
However, to get back to my point – I think our whole system of punishment is screwy. Jeffy Skilling, for example, stole several millions from folks. For that, he will spend the next 24 years or so in a converted college dorm. Sure, he will not have his ‘freedom’, but what exactly is the punishment here? The risk that he may be sexually assaulted by a fellow inmate? The likelihood of abusive treatment (verbal, mental, and/or physical) from fellow inmates or staff? The fact that he is “in a cage” (which is not really true), and is in fact something we consider cruel treatment when applied to animals?
I think we need to look at what damage the criminal act did to society, and what needs to be done to fix things – to make it right. In many cases, the criminal should be performing service for the community – in additon to holding down a job and paying restitution (think of how long Jeffy would have to work to pay back the MILLION$ he stole as head of Enron.) In some cases, where the person presents an ongoing physical danger to society, then isolating / quarantining this person from society is the reasonable answer. Such a quarantine may take the form of incarceration, or (in extreme cases) even elimination (execution), just as we ‘execute’ dangerous animals (such as pit bulls who attack folks.)
~EdT.
Polimom, you are absolutely right that these discriminatory effects run throughout the judicial system. But that’s precisely why we must remove decisions of life and death from the province of the judicial system. If an innocent man gets railroaded to prison on trumped up charges, he can be released in ten years and at least begin to get his life back. If he’s executed, that chance is gone. To quote the cliche, “Death is different.”
The death penalty and abortion are unpleasant, but probably necessary elements in our imperfect world. Interestingly, I found that many of Elrod’s arguments for abolition of capital punishement were remarkably similar to the arguments made against abortion. For that reason, I give the Roman Catholic Church higher marks for consistency than those comfortable with abortion, but opposed to capital punishment; or on the other side of the coin, favoring the death penalty but opposing abortion. While neither is attractive, both have ther uses, times when they are really the least bad choice.
As far as I’m concerned, I’m quite willing to continue executing people for murder in the first degree, murder for hire, hiring a contract killer, kidnapping, or any act of terrorism intended to harm or kill innocent people. A reasonable appeals process should be quick, and execution should follow confirmation of the conviction through the appeals process. Conviction to coffin in 6 months to a year, tops.
As for the arguments about ‘cruel and unusual,’ I agree with Ed. The argument was about things like drawing and quartering, deaths intended to be slow and involve extreme pain. As for the argument that lethal injection is too much of a medical proceedure, then fine, bring back hanging. No, I won’t lose any sleep over the folks who take a bit longer to die due to a mis-calculated drop, because most murder victims do not die nice clean sanitized, painless deaths. Give the condemned his choice for dinner, and execute him. The Ted Bundys and Terry McVeighs of this world are not reformable, and I don’t want them around loose.
Regarding:
I fail to see any basis for this judgment. It seems to me that these fuzzy discussions of race disparities, the murders’ feelings, definitions of what is “heinous” and “cruel and unusual”, and national consistency are red herrings.
From reading your article and the comments that followed, Elrod’s notwithstanding, it’s obvious that that the important thing is that the justice system convict the guilty and exonerate the innocent. If it does that, then it’s a functional system and not one in need of fixing.