For reasons that I won’t rehash, I’m in favour of the death penalty when the alternative is life imprisonment. There has been recent media attention about the death penalty and the arguments are interesting to run through.
In the New York Review of Books, former Attorney-General of Arizona, Tom Horne, wrote a short letter arguing in favour of the death penalty in response to an essay about the Magna Carta:
In considering the death penalty, one cannot lose sight of what crime deserves it. When I was Arizona attorney general, one death penalty postponed on a legal technicality by the federal system involved a perpetrator who tied another man to a chair and (with an accomplice) tortured him for many hours before killing him. I will spare your readers the details because most people can’t bear to hear them.
One must also consider the families of victims. As attorney general, I spoke to organizations of families of victims, such as families of police officers killed in the line of duty, and parents of children killed in brutal crimes. I spent a lot of time listening. They need to see justice done promptly, and are victimized a second time by lengthy delays from federal habeas corpus. The average delay in the Ninth Circuit at the time was eighteen years. This imposes a lot of suffering on them.
This is always going to be a bad argument. There are some people, it is claimed, who deserve to die due to the very nature of the crimes they have committed. The ultimate price for their actions is death.
Conceiving ‘death’ as the punishment is difficult to parse. When we punish somebody, we inflict some evil upon them. Once they are dead, there is no ‘them’ to punish. So what kind of punishment is the removal of capacity to be punished?
Put another way, the argument conceives of ‘death’ as something to be feared. ‘You have spent your whole life avoiding death, so our punishment will be to make death inescapable. The punishment is to bring you face to face with that which we all fear.’
It’s a bad argument for exactly the same reason that the abolitionist’s ‘Death shouldn’t be used as a punishment’ argument is bad. The argument is based on squeamishness. Death is so feared that either it’s exactly appropriate for our very worst crimes or it’s far too extreme for any crime.
The death penalty itself should not be considered the punishment. It is the way that we give effect to a punishment for the sake of society: ‘You have committed some act that means that we can no longer have you rejoin society. We have two options: either we can lock you away forever until you die slowly from that, or we can administer a lethal injection until you die quickly from that. Either way, the State will kill you.’
The argument also distorts the conversation. Rakoff’s response to Horne’s shows the only move the abolitionist can play: ‘You’ve said that we need the death penalty because of the brutality of the crime, but what about these people who have also experienced brutal crimes who instead call for mercy and compassion and clemency and liberal values?’ It’s not arguing; it’s posturing.
Meanwhile, the Pope has got in on the action. His intervention in the debate has caused a bit of skirmish between two common concepts in the death penalty debate: compassion and legitimacy. On the one hand, there’s the argument that what we need is compassion. On the other hand, there’s the view that we can perform any act that is legitimate, and the Bible (or the Constitution, or the legal system) is a source of legitimacy.
Read that paragraph again, and you can see that I constructed it so that you can put both positions on both ends of the debate. There are those who argue that compassion demands abolition, others who argue that it demands retention. And there are those who argue that the Bible, Constitution, legal system, &c., supports the death penalty and those who argue that it doesn’t.
The compassion v legitimacy framework for the death penalty argument is entirely phoney. It’s not obvious that compassion demands one option or the other, and if our preferred option is illegitimate according to some system of rules, should the rules change or our preferred option? It’s also not a helpful construct. I do not think that people who support life imprisonment are doing so because they lack compassion. I think they do so because they construct the pieces of the argument very differently from the way that I do. They don’t see life imprisonment as a slow death, and they conceptualise death in different terms from me (see above, and see also my argument in support of euthanasia). Encouraging people to view their interlocutors as somehow deficient in compassion or lacking in technical understanding of the rules of legitimacy just encourages people not to talk to each other seriously.
And I’m talking from experience there. The number of people who respond to my death penalty argument with dopey slogans that they barely understand themselves…
For most political, moral, legal questions, there are usually ways for two morally perfect, intelligent people to disagree. The role of public intellectuals should be to scope out the extent of that disagreement and help the broader public to express its intuitions so they can participate in the conversation. The recent playing out of the death penalty argument hasn’t helped us to do that here.