CAPITAL PUNISHMENT
In 1976, legendary USC football coach John Mckay, who had led the team to four national championships during his tenure, left the program to become head coach of the NFL’s latest expansion team, the Tampa Bay Buccaneers. Mckay and his Bucs were winless in their first season and lost their next 12 games in the second season of their existence before finally winning a game. That adds up to 26 consecutive losses. Ouch. Mckay had developed a reputation with the media as having a quick wit and a keen sense of humor, which no doubt helped him survive those dark, early years with the Bucs. During one memorable postgame Q&A, Mckay was asked what he thought of his team’s execution. Mckay deadpanned, “I’m in favor of it.”
So I guess we know where John Mckay stood on this question.
For those of you who may be offended, or even slightly perturbed, that I decided to begin an essay about the very serious issue of capital punishment with a quip about subjecting a poorly performing football team to the ultimate punishment, I simply remind you that using dark, ironic humor in hopeless situations is known as gallows humor, so the anecdote could not be more apropos. Also, in case you were unaware, football is damn serious business.
Truth be told, I was going to begin this essay with some high falutin’ disposition on society, laws, the necessity for punishment and the need for those punishments to reflect society’s sense of justice, yadda, yadda, yadda. But I was boring myself, and no doubt would be boring the reader by now. Plus, I couldn’t resist the temptation to relate just about the funniest post game answer to a reporter’s question I think I’ve ever heard. So, shoot me. Or should I say, lethally inject me? (Oops, there I go again.)
HOW ABOUT SOME SMUG LIBERAL PIETY INSTEAD?
Okay, if you don’t appreciate my dark humor, and maybe you think this issue deserves more earnest treatment, here you go. Some readers may remember the TV show “The West Wing”. It portrayed the fictional presidency of Josiah Bartlett. The show’s creator and head writer, Aaron Sorkin, is well known to be a man of the political left. It was a very popular show and by all accounts well written and acted. And, if you watched it faithfully, you were bound to receive quite a “liberal” education. By that I mean you would be versed in all the arguments in favor of the left’s position on any given issue.
I recall catching a portion of one episode (I was not a faithful viewer) wherein Bartlett is being prepped for a debate. His staffer presents him with a hypothetical question about what he thinks should happen to a person who rapes and murders his wife. If you follow politics at all, you may remember that question being asked of Democratic presidential candidate Michael Dukakis during a 1988 debate with George H.W. Bush. Dukakis was a very prominent opponent of the death penalty, so it was a fair question. His answer, that he opposed the death penalty even in that case, struck voters as clinical and academic, and it turned off many to his candidacy. Sorkin may have had this moment in mind when he wrote the episode I am referencing, as it seems he was determined to provide Bartlett the answer he thought Dukakis should have given.
In the scene in question, Bartlett replies that of course he would want to see the man who brutally raped and murdered his wife given the most severe punishment imaginable. But, he adds, that’s why its a good idea that grieving husbands don’t have legal power to decide punishments. Its a typically clever retort, in that it at once makes Bartlett more human in his answer than Dukakis was, yet still identifies opposition to the death penalty as the “good” position. It also subtly implies that support for the death penalty is really just based on one’s irrational emotional impulses, and that smart people who are more evolved in their thinking would naturally understand that and decide the death penalty is an anachronism, a remnant of humanity’s pre-enlightenment, religious based ethical and moral thinking. Its a “Win-Win” answer as they say.
BUT WHAT ABOUT JUSTICE?
Except that it isn’t. As is the case with so much of modern thought, it is a clever answer but it lacks wisdom. What isn’t addressed in that answer is the question of justice, a topic pretty thoroughly analyzed by scores of pretty smart people (Aristotle and Aquinas come to mind), both secular and religious, who provided us with much knowledge and wisdom. Too bad we as a culture are so certain their ideas are out of style.
Of course the victim’s family should not have the legal authority to exact their preferred punishment on the offender. That’s called vigilantism. While it may be a natural, instinctual reaction, I agree with Sorkin that a morally healthy society must have the moral clarity to resist enabling or endorsing it. Where I differ with Sorkin and others who oppose capital punishment is that I believe a morally healthy society must also have the moral courage to clearly and unequivocally condemn very serious moral transgressions against society-such as heinous, depraved, and wanton acts of murder-by inflicting a punishment commensurate with the serious threat posed to the moral order by those kinds of crimes. I believe a proper conception of justice, one infused with the wisdom of many of those thinkers and theologians that moderns have so casually dismissed would go a long way towards reversing the recent trend in favor of abolishing the death penalty.
So, there. Is that serious enough for ya?
THROWING SAND IN THE BULL’S EYES
Now, most of the objections I hear people raise against capital punishment are the equivalent of the old debating trick of throwing sand in the bull’s eyes. What I mean is they don’t address the horns of the issue, i.e. the fundamental questions of justice and morality, but instead offer various objections designed to distract one from their ill conceived conception of justice. Let’s first clear away some of the sand so we can get to the horns of this issue.
For any death penalty supporter, the potential of executing an innocent person must be taken seriously. If one is talking about pre-modern societies, I am certain this injustice occurred. However, to my knowledge, opponents have yet to produce a single case in any post enlightenment liberal democracy wherein an innocent person was executed. This kind of mistake, in the context of our current system, which includes the rapidly developing science of DNA evidence, is so slight that I am comfortable supporting the death penalty while accepting the risk and responsibility of potentially having an innocent’s blood on my hands. Do opponents of capital punishment accept responsibility for the lives lost due to their support of abolishment? I am pretty certain I can dig up plenty of cases where a convicted murderer, who should have been executed, kills again, either in or out of prison. I am absolutely certain there are far more innocent victims of convicted murderers than there are innocent victims of capital punishment.
By the way, it always amazes me that opponents of the death penalty love to trot out those cases wherein DNA evidence overturned a conviction of a prisoner on death row, as if that makes their point. Doesn’t that just prove my point? Our system is so chock full of backstops in the form of appeals and stays and God knows what, that by 2018, the average time elapsed between a defendant being sentenced to death and the execution being carried out was 238 months! That’s almost 20 years, for those readers of mine who are as mathematically challenged as I. That is a morally corrupt system? I think not.
Another grain of sand thrown in this debate, and an amazing example of sheer chutzpah, is when opponents of capital punishment try to argue that maintaining death row inmates is more of a financial burden than their preferred punishment of life imprisonment. A debatable proposition at best, but one made possible only by the extreme guardrails erected by death penalty abolitionists that results in the convicted murderer spending nearly 20 years on death row!
Buckets of sand have been hurled, most especially in our current social climate, claiming the death penalty is unjust because it is unfairly applied in the case of poor and/or minority defendants. Opponents argue these defendants are more likely to receive the death penalty as punishment because of either unsuitable legal defense or systemic racism against minorities. As with any issue involving statistics, much depends on how the data is interpreted. On the one hand, a recent analysis in Georgia (poor Georgia! Sorry for piling on, Peach State!) indicated that the death sentence rate is 6% higher in white victim cases than in black victim cases. That means that if one murders a white person one is 6% more likely to be sentenced to death in Georgia. For those opposed to the death penalty, this serves as evidence of racial bias and therefore justification to call into question the justice of such a penalty. But does it? Despite the progressive insistence otherwise, in nearly everything from criminal justice to college graduation rates, the existence of disparity in outcomes along racial lines is not automatically dispositive evidence of bias. From 1977 through 2011, the racial breakdown for those convicted of crimes eligible for the death penalty was 48.6% white, 40.9% black, 8.9% Hispanic, 1.6% other. The race of those actually executed was 56% white, 35% black, 7% Hispanic, and 2% other. You’ll notice that when it came to carrying out the sentencing, the percent of black defendants who were actually executed is well below the percentage of white defendants receiving such a fate. Were those outcomes racially biased against whites?
My point is not to deny the real issues of race in the United States, but rather to remind the reader that these arguments simply don’t address whether or not capital punishment is just in and of itself. I am willing to concede that our criminal justice system is not perfect. No human system can possibly attain such an otherworldly status. I am more than willing, in fact eager, to debate and adopt potential reforms to our system to address inequalities, inefficiencies, and incompetence. What I am not willing to concede is that any of these problems obviate the need to have available a punishment proportionate to the severity of the crime. To those of offering this line of objection, I have a proposal: I will agree to a system in which any minority or poor person convicted in a capital crime shall have their case independently reviewed for any irregularities; gross misconduct on the part of the defense, prosecution or courts; or evidence of bias by any of the same. In return, you will agree to support the death penalty as a just and moral punishment for murders of a particularly heinous nature.
Some opponents of the death penalty like to throw scholarly sand by appealing to the Constitution, arguing that the death penalty violates the 8th Amendment’s prohibition against “cruel and unusual punishment”. Part of this argument rests upon their assertion that the penalty is unfairly applied (see above). Another part, the part I believe to be more revealing of their true objection to capital punishment, is the assertion that executions are barbaric and their continued use merely a relic of outdated mores and customs informed by less enlightened thinking. I do not doubt the Founders clearly viewed the death penalty as constitutional. It is the penalty proposed in cases of treason. Furthermore, it has been the misguided efforts of death penalty opponents to make the procedure more medical in nature, and thus supposedly more humane, that has led to lethal injections as the preferred means of execution. Yet, this method has proven to be rife with problems that often cause the kind of unnecessary pain and suffering to the person being executed upon which opponents partially base their objection to the practice in the first place. Mercy unchecked by an equally strong sense of moral outrage for the victims of these murderers leads to such morally confused thinking.
THE LITMUS TEST
Having dispensed with the clouds of sand and dust thrown at this issue, we finally arrive at the crux of it. The litmus test question in my mind is this:
Do you believe that all murderers should be allowed to live?
If your answer is NO, then you do not believe the death penalty should be abolished. You may have some concerns and qualms, as any moral person should, but you are at least in the same moral universe as I. You have not abandoned the centuries old Judeo-Christian moral and ethical framework that contains vast deposits of hard earned wisdom about such fundamental questions as justice and mercy. And as such we can at least discuss whatever reforms might be necessary to ensure capital punishment is applied only when justice demands. No more, no less.
If, however, I present you with a case like that which occurred in 2007 in Cheshire, Connecticut, wherein two men brutally beat, raped and murdered three people, and your response to the question posed above is YES, then you and I do not inhabit the same moral universe. There is nothing I can say that would make sense to you regarding this issue because your moral compass points to some other true north.
Sadly, more and more opponents of capital punishment, when pushed to admit their obscurant objections about the constitution or disparate impacts are smoke screens that do not hold up to scrutiny, have begun to more confidently assert their arguments against the death penalty in more direct moral terms. Believing they have discovered in their modern moral philosophies a superior sense of justice and morality, they dismissively cast supporters of the death penalty as at best pitiful clingers to old superstitions, and, at worst, blood thirsty souls bent on vengeance.
GUESS WHO SAW IT ALL COMING?
As I mentioned above, support for capital punishment has been trending downward recently. I believe the reason is quite clearly diagnosed by our old friend Gilbert:
The modern world is not evil; in some ways the modern world is far too good. It is full of wild and wasted virtues. When a religious scheme is shattered…it is not merely the vices that are let loose. The vices are, indeed, let loose, and they wander and do damage. But the virtues are let loose also; and the virtues wander more wildly, and the virtues do more terrible damage. The modern world is full of the old Christian virtues gone mad. The virtues have gone mad because they have been isolated from each other and are wandering alone. Thus some scientists care for truth; and their truth is pitiless. Thus some humanitarians only care for pity; and their pity (I am sorry to say) is often untruthful.
G.K. Chesterton
Only someone inhabiting the fractured, inverted moral universe described here by Chesterton could possibly believe that justice is served by allowing all murderers to live.