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The death business

Your Humble Blogger happened to see a very interesting column over at Mousewords by the very interesting blogger Amanda Marcotte, who has also been one of the triumvirate that filled in for Jesse Taylor over at Pandagon. Anyway, Ms. Marcotte writes about the death penalty, and writes about it very well:

Let's make it clear—most opponents of the death penalty aren't overly worried about the fate of the guilty. We worry about the innocent. We worry that participating in an inherently unjust system will turn the innocent into the guilty. That's why we oppose torture. We have no love for those who plan to commit terrorist attacks against us. But we know that torturing and murdering turns the innocent, in this case the young people who are our soldiers, into the guilty, people who let blood for what ultimate purpose is lost to the fog.
This comes pretty darn close to my own opinion about capital punishment, which I don’t think I’ve ever posted here. And, since my opinion more or less solidified during a time when somebody I love lost a close family member to murder, it seems like a good idea for me to open up that opinion again at this time and take another look.

There are, on the whole, four reasons for capital punishment that I think need to be addressed. The first is deterrence, that a person making the decision to commit a murder will take into account the possibility (the probability, even) of being caught, convicted, sentenced to death, and then killed. This is usually addressed empirically: it’s one of those things you would think would be true, but in fact does not appear to work. It’s proving a counterfactual, of course, but in general the statistics I’ve seen have not shown any persuasive evidence that the existence of even a commonly used death penalty does reduce incidence of murder. It’s also pretty easy to make up a theoretical underpinning to that evidence that is just as plausible as the other: most people who make a decision to murder do not rationally judge cause and effect. It’s hard to imagine a deterrent that would work at the moment of decision, when the long-term pressures, delusions, moral inadequacies, whatever, have already been set in place. I’m not saying that framework is necessarily true, mind you, just that it’s as plausible as the first, and that it seems to better account for the history.

The second reason is also deterrence of a kind, that individuals who are convicted of murder and later released are likely to murder again. I have never looked at the actual evidence of this, but of course if we so desire, we can simply never release convicted murderers. True, there is always a chance that some Governor will commute the sentence and let the person go, but that chance is quite small, and very few recidivists make it through that process. The fact that we don’t choose to impose such sentences, but do choose to impose death, seems very strange to me. Yes, true lifers must present a greater problem for jailers, but that seems, as a practical problem, to be one we can treat. That is like the economic argument that it’s wasteful and expensive to keep prisoners alive for forty or sixty years. I’ll just dismiss that one out of hand, saying as I often do that America is rich enough to do whatever we choose. Economics can’t possibly carry this argument.

The third reason is Scriptural. As with abortion, agricultural regulation, animal husbandry, debt remittance, education, fashion, marriage, sex, and war, I simply refuse to accept that Scriptural interpretation should mandate legal policy. I don’t argue my Scripture’s position on capital punishment (although there are those who do), I just don’t think it’s dispositive. As a result, you may argue all you like whether Scripture demands the death penalty or forbids it, but for me, we have to go by whether it is good policy. Now, that question will be answered by various people according, in part, to how they interpret Scripture, particularly on the thorny ethical questions below, and I am OK with that. I’m just saying that the question ‘is this a correct action for a state to take’ can’t (for me) be answered with Scripture directly.

The fourth reason, often derived from Scripture of course, is that it is more just to kill than imprison the murderer. I don’t know how to argue this. My own Scriptural tradition clearly endorses the justice of capital punishment. My problem is that I don’t really understand how to apply ‘justice’ a criterion to punishment. Let’s assume, for argument’s sake, that there is justice in the system by which the punishment is applied, to the court system, and to the educational, cultural and economic systems that contribute to individual’s moral preparedness. Let’s assume it, anyway, in the discussion of whether the death penalty is inherently just. How do I decide if it is just to put a killer to death? It doesn’t in any practical sense redress the wrong, as a thief might be put to repaying the victims of his thievery. It may make some of the bereft feel better, emotionally, but it scarcely repairs the damage done them. It doesn’t appear to me to heal the damage done to the community, either to restore it to its earlier state or move it towards a new and healthier one. Not that lifetime imprisonment does any of those things, but there it is. And as for it being just in the sense of fair, in the sense of being an eye for an eye, in having done to them what they did to others, well, I just don’t see that as having much to do with justice. People found guilty of assault aren’t sentenced to be beaten. We don’t rob thieves, we don’t violate rapists (as a policy), we don’t sent fire to arsonists’ houses. We might be fair, but it wouldn’t be just. If I’m to be convinced that killing murderers is just, it will have to be in that context.

So. I imagine there are more arguments to be made in favor of capital punishment, but those are the main ones I can think of. And although there is some merit to them, there isn’t enough to overcome much resistance. But what is the resistance? What are the arguments against?

Well, the currently hot issue is miscarriage of justice. This seems to me very clear: there are some cases, possibly a lot, possibly very few, where the conviction is in error, and the person killed by the state is innocent. This is horrible to imagine, of course, and there are people for whom this alone is dispositive, at least temporarily. Even one innocent human killed by the state is enough reason to forego capital punishment entirely. I have to admit I’m not convinced by this as general reasoning; we are, after all, fighting a war where we are killing innocent humans. It may well be that in the specific case here the number of innocents and the number of guilty works out to be overwhelming in whatever hideous calculus I would have to use. I’m not even convinced of that at the moment. Still, a lot of people decide on this basis.

There are arguments more or less analogous to second argument above, that imposing the death penalty is expensive, or that it leads to trouble in the prisons, or so on. I’ll dismiss those, too; they can be handled.

There is the argument that as there is not perfect or even adequate justice in the system by which the punishment is applied, in the court system, and in the educational, cultural and economic systems that contribute to individual’s moral preparedness, and therefore the application of the death penalty is necessarily unjust. Lots of people do argue that, and it’s a good argument for delaying the implementation of the death penalty until those systems become more just. Still, as an argument, it seems odd, as presumably we should be working on making those systems just, which means we end up working toward implementing the death penalty. It’s not an illogical argument, and we can analogize to other fields, say, a supporter of abortion rights may well work for a time when the systems have enough justice and opportunity (for instance, in available contraception or external incubation) to allow for a ban. Or a supporter of affirmative action in college admissions may well work for a time when such preferences would be unnecessary and therefore outlawed. It just strikes me as odd.

The last argument is the one Ms. Marcotte raises above. This argument is that killing is simply wrong, and we must be extremely reluctant to do it, either as individuals or through the state. In particular, of course, the individuals who actually do the executions are placed in extreme moral jeopardy, along with corrections workers generally, as are juries and judges and attorneys and so on. But generally, the way I generally phrase it is that I don’t want the state to be in the killing business. It’s a bad business.

I want the state to be in the law enforcement business, the relief (or welfare) business (domestically and globally), the research business, the adjudication business, the mediation business, the archive business, the regulation business, the utility business, a whole lot of businesses. I don’t want the state to be in the numbers-running business, or the whorehouse business, or the drug business, or the mail fraud business, or the killing business. That’s a presumption on my part. If you are going to propose that the state should run numbers, you will have a lot to overcome on my part. I may, in the end, choose that as the most ethical action (because my preferred options aren’t feasible, or aren’t yet feasible) for the moment. But there is always a moral cost, there, and the fact that I’m willing to pay it under certain circumstances doesn’t negate that. And, as I’ve said above, what we gain by the death penalties just isn’t worth that cost, in my eyes.

Now, the hard part.

My own experience of murder concerns a case where someone I love dearly lost a close family member, who was murdered by a close friend (who, as it happened, lived in my love’s family house). My anger at the murderer has not dimmed, and if I joke that he was the least likeable murderer I’ve ever known, it’s just YHB’s way of whistling in a graveyard. When it looked, briefly, as if the incompetence of the police would lead to the murderer’s conviction being overturned on appeal, I was furious. And that’s me, at one remove; the grief for a dead young brother or son doesn’t end. I would be satisfied if the murderer were to be imprisoned his whole life. I would not, actually, be bothered (emotionally) had he been killed, either resisting arrest or as punishment. I wouldn’t be saddened, particularly, if I were to learn today that the fellow had died in prison. I’d probably gloat. When John Salvi died in prison, I was, you know, vaguely concerned about prison conditions generally, but didn’t consider the actual death a loss. When the state of Florida killed Paul Hill, I had no sympathy for Mr. Hill, but I still thought it was the wrong thing for Florida to do. And if the murderer I knew had been killed by the state, I would still have felt the state did the wrong thing, even as I gloated. Heck, if the state of California killed the Los Angeles Dodgers of Los Angeles, I’d probably gloat ... but it would be the wrong thing for the state to do.

Now, most if not all of my Gentle Readers will be aware that my host just lost his father to a murderer. I can’t say I have any idea how he feels; that’s not what I’m on about. I don’t think I’ve ever even discussed the issue of capital punishment with him. And I’ll go out of my way to point out the obvious: I have no idea what went on or is going on there. All I know is what I read in the papers. But it was in my mind when I read Ms. Marcotte’s column, added to the history I always have there. And I felt that even more than before, I agree with Ms. Marcotte’s formulation, that the reason I don’t want the state to be in the killing business has nothing to do with the people the state kills, but with the state that kills.

Anyway, that’s Your Humble Blogger’s take, for now. I’m sure I’m missing lots of arguments on either side, and I’m sure my Gentle Readers will fill me in.

Thank you,


Outside of death row, prison is death, torture, mutilation, rape, and more for far too many. Until we insist on revamping our correctional system, we are being horrifyingly, willfully blind to what we do to our prisoners. Death row is terrible, and I oppose the death penalty, but it is a miniscule fraction of the undiscussed wrongs that are done to prisoners. If the death penalty is banned, it will be a scant moral victory. I'm afraid that it will offer the illusion that our prison system is not an abomination, that we are somehow becoming a less vindictive society, or that being falsely convicted is no longer that big a deal.

The death penalty is a fine thing to examine, but taking it out of its context feels much like debating the infield fly rule without knowing anything about baseball.

to v.: there's a fifth reason i've heard from death penalty advocates, that life is a privilege you waive when you kill. "no longer deserves to live." this one astounds me for its circularity, but i think it's the most popular even if it's the least legalistic.

to michael: we prefer prisons to slums. it looks better on the resume.

"doesn't deserve to live" BTW i think is not quite eye-for-an-eye. more like, this person is human, that person is vermin, because i say so. death penalty becomes the ultimate permission for various discriminatory attitudes.

So, i feel that your first and your last points against the death penalty are not necessarily very different from one another. I mean, killing is a bad business because of the possibility that you are dealing out more harshness than is merited, and, in the case of innocent people being killed, that's almost certainly true. (And i somehow doubt death penalty opponents are unilaterally in favour of the war, but anyway...)

The state has to be in the killing business because it needs to be able to use force to maintain order. And i think that's fine --- in my utopia, the state has the guns, and the people (collectively) have the numbers, the resources, and the will to hold the state accountable for what it does with them. While i want the government to be reluctant to kill, but it's hard for me to see how things could be better if the government did not have that power. (I'm making these claims as background for my position on the death penalty --- i realise i'm not actually defending them, and that some or perhaps many of your readers will disagree with them.)

When i was in high school, i was outspokenly opposed to capital punishment in all cases. (I went to high school in Texas, so there may be some correllation there.) Since then, i've mellowed. Given that the government can and does kill its citizens, and that i can't see any alternative to that, the death penalty itself is small potatoes in terms of number of people affected. (So, i'm comparing the number of people shot by the police in the line of duty to the number of people executed by the state. I'm not actually looking up these numbers, but i have a guess about how they would look.)

These days, my opposition to the death penalty is entirely for reason 2 --- it is a visible aspect of a ridiculously unfair criminal justice system. The O.J. Simpson trial was also when i was in high school, and the big lesson to be taken from that, regardless of what you think about the man's innocence, guilt, or what have you, is that, had he not been rich and famous, it is hard to imagine that he would have had the chance to present the evidence which got him off the hook.

The other problem with the death penalty is that it's irrevocable. If you jail an innocent person for 20 years, you can let him out and give him a lot of money, and it won't make up for the lost years, but it's an action you can take. If you kill someone erroneously, there's not much you can do.

However, if we actually had a system in which justice was dispensed, with some degree of accuracy, regardless of the accused's ability to buy it, and in which we weren't destroying people's lives for dealing pot, etc, etc, rant, rant, i don't think i would expend a lot of worry about the death penalty. So, yeah, i'm with Michael, only a lot more long-winded about it.

I was about to respond, but there's much to chew on. I'll take my time, then. For now, I'll just say that I agree with Michael that our prison system is an abomination that shames our society, and that the death penalty is a small (but controversial) part of that. It's probably worth mentioning to Ms. Marcotte as well, if you wander by the column that sparked my note.

I should point out that some of us are indeed "worried about the fate of the guilty." They remain human.

I must preface this by stating that I don't particularly believe what I'm about to put forth, though it doesn't seem entirely unreasonable either.

An additional pro-death reason is that it is less cruel and more humane than life in prison without possibility of parole, the other sentence generally given to those for whom the death penalty is not an option for one technicality or another (and the de facto sentence many sentenced to death wind up serving, given the overwhelming success of postponing appeals in all but a handful of states).

What I mean by this is that, given the realities of prison life, if there is any hope of a convict achieving liberty in the future, that hope should keep them alive because liberty is near-infinitely better than prison; while if there is zero hope of future liberty, then death is better than prison. This relies on two key assumptions, though: 1) the criminal justice system is flawless, such that no innocent can ever be sentenced to death; and 2) that prison really is worse than death. The first is probably an unsolvable problem, so this whole argument is very likely moot. But if a convict is certain his conviction will not be overturned--say he actually is the murderer, does not dispute this, etc--and if he himself believes that prison is worse than death, I find it hard to argue that he should not be allowed to choose death if it is the state's business to ensure humane treatment of prisoners. (It also assumes that there is no hope of prison conditions improving sufficiently during the lifetime of the convict, but I sadly feel that too is an unsolvable problem.)

This is a very different sort of death penalty, though, one where a sentence would essentially be the option of the convicted. Is that giving too much freedom of choice to the convicted for it to be a punishment imposed by the state? I don't know how to answer that question, but I could see it as one of many arguments against this proposal.

Anyhow, food for thought, whether or not any of us think it's a good idea.

Others have made excellent comments -- I ignore them not because I think mine is more important, but because I don't think I could add much substance myself.

V, you say this:

...the reason I don’t want the state to be in the killing business has nothing to do with the people the state kills, but with the state that kills.

which is an excellent reason, as far as it goes, but what really struck me from Marcotte's quote was:

We worry that participating in an inherently unjust system will turn the innocent into the guilty.

or, in other words, the reason I, myself, don’t want the state to be in the killing business has nothing to do with the people the state kills, but with the state that requires people to kill.

I've expanded a little on this, albeit aimlessly and inconclusively, over at PoI.

Good discussions.

I'm opposed to the death penalty, but I'm not sure that my opposition is logical or rational; I think a lot of it stems from a general and fairly simplistic belief that killing is wrong, and therefore less killing is better than more killing. (I think someone in SWAPA many years ago wrote up a set of arguments against the death penalty; I didn't find any of them entirely convincing, and the final one—"It's just plain wrong!"—wasn't something that I expect would help much to convince people to change their minds about it.)

I do think, though, that it's possible that a state execution can help to heal a community, basically by providing catharsis through punishment. I don't think that's a good argument in favor of the death penalty; I'm just saying (in response to one of your comments) that I think there sometimes might be a potential to help heal the community.

I agree with Michael that the prison system is awful and horrible, and I agree with various comments to the effect that it's possible that for some people, death would be more welcome than life imprisonment without parole. Having heard some about what prison is like leaves me intensely ambivalent about what should be done with people who commit horrible crimes. In our current society, I don't know what a good alternative to incarceration would be, but I'm not at all comfortable with incarceration either.

(Somehow I'm thinking of an analogy, though possibly a bad one, with the sanctions imposed against Iraq after the first Gulf War. My impression is that they were intended as a better alternative to, say, stepping in and deposing Saddam and taking over the country, and yet the sanctions themselves caused deep harm to the people of Iraq. But I'm not sure that's a good analogy.)

I agree with Chaos that the state kills people in various ways other than the death penalty. It doesn't quite make sense to me to say that we shouldn't have the death penalty because it dehumanizes those who carry it out; it seems to me that on those grounds, we shouldn't issue firearms to police. (In my ideal society perhaps we wouldn't, but that's another question.) I was kind of shaken many years ago when Steve K. pointed out to me that the ability of police to do their jobs is predicated on violence and the threat of violence; I haven't really managed to reconcile that with my worldview, except inasmuch as I would rather not involve the police in disputes unless absolutely necessary.

I was talking with Rob S last night, and he noted that he believes in quality of life over quantity of life. From that perspective, I can see Will's suggestion of (basically) allowing suicide as an option; an interesting idea. I would worry that it would be misused—that people would be coerced into making that choice—but I suppose that would probably be no worse than what we've got now. But I doubt it'll happen; our societal opposition to suicide is too strong.

Anyway. I have no coherent or logical arguments in either direction, but I appreciate the discussion.

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