The Death Penalty

Let’s talk about death.

Amidst all the hoorah about marriage equality and saving Obamacare, SCOTUS had another major decision, the inelegantly titled Glossip v. Gross. In that case, the death penalty survived a challenge based on the unreliability of the one of the drugs, midazolam, used to execute people. There have been some horrific botched executions recently, and that problem was compounded by the fact that death penalty drugs have become increasingly difficult to obtain. The companies who make them don’t want to support death anymore. So, did executions using midazolam constitute cruel and unusual punishment? The court answered ‘no.’

The access to drugs problem remains. In fact, that’s why Nebraska, shockingly, voted to eliminate the death penalty back in May. In fact, the Nebraska legislature passed the law getting rid of the death penalty by a veto-proof margin. Had to, as their governor threatened to veto it.

Most advanced nations on earth have eliminated the death penalty. 140 countries have abolished the death penalty, The countries that still have the death penalty is essentially a list of countries you don’t want to live in: Libya, Iran, Iraq, Pakistan. And the USA.

So what do we think about the death penalty? As a civilized people, what do we think? It’s not an easy answer. Does the death penalty have a deterrent effect? That’s a hot topic in the criminology academic literature, and most peer reviewed studies have concluded that no deterrent effect exists. 88% of all criminologists believe that the death penalty does not deter violent crime. But that also means that 12% do believe in deterrence, and some recent studies have concluded that deterrence exists.

The well-known (and famously liberal) legal scholar Cass Sunstein, in an oft-cited 2006 study, made this compelling suggestion:

Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. The familiar problems with capital punishment–potential error, irreversibility, arbitrariness, and racial skew–do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent. The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.

If, in other words, capital punishment deters killer from killing, then opposing the death penalty requires that we trade a life for a life; that we may be privileging the life of someone predisposed towards violence over the life of his future victims. If it can be proved that the threat of the death penalty is sufficient incentive for a killer to not kill, then governments that refuse to administer the death penalty may committing a very serious sin of omission.

That’s pretty abstract; let me make it more concrete. In 2011, Anders Behring Breivik killed eight people with a bomb in Oslo, then went to a summer camp on Utóya, an island in the Oslofjord, and murdered 69 others. Children. Breivik was, and is, an ideological extremist. He’s Islamaphobic, anti-Zionist, and ruthlessly anti-feminist. He murdered 77 people. He’s not remotely repentant. He was tried in 2012, found guilty, and given the maximum sentence possible in Norwegian law, 21 years in preventative detention, 10 of which are to include incarceration.

That might strike you as being a fairly mild sentence for a ruthless mass murderer. I wouldn’t disagree with you. It strikes me as pretty typically Norwegian. The responses, from King Harald, from Jens Stoltenberg, the Prime Minister, from the opposition parties, was ‘this is not going to change us. This is not going to change our commitment to democratic or humanist values.’ One girl, who was at the camp while Breivik was rampaging through it and who saw her friends murdered, said, in a widely quoted statement “if one man could show so much hate, think how much love we could show, standing together.”

So. Inspiring? Or dangerously naive? One response to Norway’s response might well be: ‘Typical weenie liberals,’ right? And let’s suppose that some other ideological extremist found Breivik’s actions as heroic, not horrific. Let’s suppose there was a copycat wannabe. Would that person be deterred by the astonishing sentence Breivik received? If there were more killings, would Norway’s continuing commitment to opposing the death penalty also mean that Norway would have blood on its hands? Does Sunstein have this right?

In fact, there haven’t been copycat killings. Not yet, at least. But let’s take Sunstein’s argument seriously for a moment. Certainly, the death penalty does deter any further crimes that the guy we just executed might have possibly committed in future. It also deters any possible good the guy might have done, so there’s that. But can we as a society take the chance that deterrence works? Wouldn’t that be irresponsible of us?

Here’s the thing: most of the arguments I’ve heard for the death penalty strike me as atavistic. Whenever there’s a mass shooting–Charleston’s the most recent big one–the reaction of a lot of people, not just in media but in everyday conversations, is ‘fry the bastard.’ Break out Old Sparky; electrocute him. Shoot him. Hang him from the highest tree. We like that. We love Hollywood revenge fantasies. We love the idea of vengeance. Eye for an eye, tooth for a tooth. All that.

Set that aside. That’s our lizard-brain talking. We do actually know better, especially those of us who profess Christianity. And let’s also leave off all the other objections to the death penalty–racial bias, inadequate representation, the unreliability of witness testimony, DNA proof of innocence claims. Let’s leave all that out of the equation. Let’s confine ourselves to Sunstein’s argument, and let’s assume, as he does, that deterrence is a real-world possibility.

Should we execute murderers? Should we do it to save the potential lives of their potential, eventual victims?

I spent the afternoon going back and forth on this. Finally, I concluded: No. We should not. Justice remains an essential societal value. But the death penalty does not serve the cause of justice, because it leaves off the single most important element in criminal justice, the possibility of redemption. We can ask juries to determine what happened, who did what, who is responsible. We cannot, and must not ever ask juries to determine the worth or value of any human soul. I say, let’s put ourselves on the same moral plane as Norway, not Libya. Let’s say no to death.

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