In a previous post, I noted my discomfort at being on the pro-death penalty side of the debate. On average, an abolitionist will be more intelligent, more well informed, and more rational than an advocate of the death penalty. Those of us on the advocate side are more likely to be pitchfork-wielding weirdoes, spouting mantras of ‘an eye for an eye’ and ‘deep fry his ass’.
If I had the slightest excuse to change sides, I would. I was an abolitionist until my final year of university and I remember the day and the hour that I changed positions. It was a horrifying moment: up until that point, I thought all advocates were pitchfork-wielding weirdoes and, yet, the foundation of the abolitionists argument was utterly flawed, and the advocate was — despite most of us having utterly ridiculous arguments — ultimately correct.
Abolitionists misconceive life imprisonment. They argue that a person imprisoned can be released (but a dead person cannot be revived) and that life imprisonment is more humane than death.
You can never repay a person the time they’ve spent in prison. Imagine that a person’s innocence is proven after they’ve spent two decades in jail: how do you give that person their time back? How do you heal the psychological damage imprisonment does to a person? Their family might have moved on, some might even have died. The question which ought to be asked is: regardless of whether you’re abolitionist or retentionist, why is it possible for innocent people to be found guilty of crimes they didn’t commit?
Further, what sort of life is life imprisonment? If a convicted person is treated for illness, it extends the duration of their punishment. How can we not find this barbaric? It’s a basic dignity that we do not punish people indefinitely, and yet abolitionists promote it: people convicted of certain crimes should be imprisoned for an indefinite period of time, prevented from euthanising themselves, where their entire life shall be suffering for a past crime. It’s inhumane. John Stuart Mill said it was akin to being ‘embalmed in a living tomb’.
Abolitionists have false consciousness about life imprisonment. Life imprisonment is the death penalty performed slowly. The felon dies of indefinite incarceration following a lengthy period of time in which their liberties were curtailed and which radically reduced their quality of life. It is flatly barbaric: we treat animals with more dignity than we treat people.
But, as a retentionist, I am confronted by issues like the Troy Davis one. Davis’ case strikes at some fundamental pillars of our justice system, but there are a few introductory notes.
It is not clear that Davis was innocent or that he should have been found not guilty. A lot of commentary has asserted that he was innocent of the crime: but the people voicing this point of view weren’t there. If they knew for a fact that he was innocent, they should have appeared at his trial. It would have saved a lot of bother.
There is nothing persuasive to say that he should have been found not guilty. There have been accusations that the police coerced witnesses, but these haven’t been proven. Davis ran the gamut of appeals and the conviction was upheld.
Both paragraphs adopt a view of procedural justice: if the correct procedure has been followed, the decision — regardless of how it matches ‘reality’ — is just. I’m not particularly a fan of it for a variety of reasons. Not least: a proceduralist account says that a person is guilty only if they have gone through the process of being found guilty, not only if they committed a wrong.
But our justice system is built on the principle of procedural justice. It prevents inquisitorial-style trials and raids of your home without warrant. We don’t let the State determine facts by hook or by crook: if evidence was obtained without going through the correct process, it is inadmissible, even if it would mean a guilty person would walk free. Batman is the antithesis of procedural justice.
The last two paragraphs present a serious tension in the way we should view the justice system. In the ideal world, the procedural view would give the same result as the absolutist view: the procedure ensures (not coincidentally or accidentally) that all guilty people and only guilty people are punished. But we don’t live in an ideal world, so there is a real predicament.
From a procedural point of view, Davis was guilty. As he was found to be procedurally guilty, it was just and appropriate for Davis to be executed. If it can be proven that the police behaved inappropriately in order to obtain a guilty verdict, they should be tried for Davis’ murder.
My concern in that the procedure for finding and appealing guilt in the US is problematic. In this case, where it seems that so much doubt can be found — even if we only accept a fraction of what the uncritical champions of Davis assert — how could a guilty verdict stand? Either there’s something rotten in the state of Denmark or the media is not reporting the case accurately (maybe a bit of both).
In the same week that Davis was executed, Lawrence Russell Brewer was executed for taking part in a gruesome murder motivated by white supremacist crap. Brewer was unrepentant, admitted his guilt, and took pride in his act, stating that he’d do it again.
First, why didn’t Amnesty champion this guy’s right to life? It’s harder to sympathise with the abolitionist’s argument when there are clear cut examples of guilt where the only humane punishment is execution.
Second, cases like Davis’ make for good intuition pumps, but cases like Brewer’s create unnerving ambiguity. If abolitionists want to make a persuasive argument against the death penalty, it can’t be tied to an individual case. For every case like Davis’, there’s a case like Brewer’s as rebuttal.
It was also pointed out to me that Davis was put on suicide and self-harm watch (SASH watch) prior to his execution. I was told that this was hypocritical and insane: why would you ensure that a person was kept healthy and well just so the State could execute them?
My case above should show us why: my sort of retentionist position is vastly different to the retributivist model of an eye for an eye. There’s no gloating or chest thumping when I argue that a person should be executed instead of being imprisoned indefinitely. My position — and I wish it were the position of all retentionists — is one which promotes the dignity and civility of our justice system.
Abandoning a person to execute themselves, failing to use SASH watch, is to take a barbaric view of the process. This isn’t ‘death by any means possible’; this is death at an allocated hour by an allocated method, up until which you have the opportunity to appeal and to be treated with the dignity and respect we afford all criminals.
Cases like Davis’ challenge my view of the death penalty, but it is clear that the death penalty is more humane and more just than the alternative. Although most retentionsts advocate crude and brutal forms of the argument, nuanced and reasonable retentionists should attempt to persuade abolitionists that all reasonable people are concerned about the humane and ethical punishment of criminals. Neither side has a default rational claim on the moral high ground, and death penalty remains a genuine ethical dilemma.