Tuesday, October 28, 2014

The Wrong Way to Argue Against the Death Penalty

History is not on the side of the death penalty-- that's obvious, right? Not only is public opinion gradually souring against it, but our country is also executing fewer people each year now than it has been for the last forty years. Meanwhile, the international consensus against the practice could scarcely be more overwhelming. The United States' policy of execution places it not in the ranks of democratic nations, but among such unsavory company as the governments of North Korea, China, and Iran. The European Union regards capital punishment as so egregious a violation of human rights as to bar from membership a nation that employs it. And so on.

Surely all that is needed in such a context is a trigger event-- some galvanizing incident that so appalls people, so violates their emerging moral consensus, that they act to formally abolish the practice. Just as Emmett Till's murder crystallized for a nation everything that was intolerable about Jim Crow and lynch law -- everything the nation had known all along was intolerable about these things -- so too, the thought runs, at some point an abuse will occur in the capital punishment system that is so shocking it forces people to move. We will stop terminating our thoughts on the subject with the idle "Yes it's terrible, but we tried to do something about it and failed" and move to the urgent "It's terrible, and we all know it, so why haven't we stopped it yet?"

I suspect that capital punishment in our country today would not weather any sustained public attention of this sort for long. Ours is a cultural moment in which, for a host of reasons, very few public figures would want to be thrust into the position of actively defending the justice of that institution. All that needs to happen, therefore, is the kind of media focus that renders passive or silent acquiescence impossible. If the death penalty were to become once again a "controversial issue" in the country, if people felt compelled to come out decisively for one side or the other, then the practice would not survive. The moving finger would already be writing out its doom. "Death, you shall die!" as John Donne would say.

This at least, is how it is supposed to go. But there was a miscalculation somewhere. Faulty wiring. The triggers were all pressed last year, but no shot was fired. The galvanic jolt was transmitted, but there was not a quiver of flesh in reply.

I thought that the first of last year's botched executions, from Oklahoma, was going to be the decisive event -- the one that returned capital punishment to the nation's attention. I thought it would be sufficient to revive a "culture war" over the issue. My conviction only grew stronger as the incident was followed over the next several months by two other botched executions. Not only were these incidents gruesome in themselves, they also enclosed within themselves the terrible irony and inhumanity and unnaturalness of the whole system. We were horrified and apologetic at the slow, torturous death inflicted through the "botched" executions; yet we were forced by this very realization to look again at what the "successful" executions were supposed to have been, against which we were comparing them. Suddenly, it became very hard to recall why we apologize for the botched jobs, and do not shed tears over the "successes" as well.

Or again-- this is how it was supposed to go. Yet none of this actually happened. The "culture war" was not reignited. The "debate over capital punishment" did not occur.

In a strange way, it almost seems that the DP abolitionist movement is a victim of its own success. There really aren't a lot of public voices crowing in favor of capital punishment anymore, and this very fact has taken the urgency out of the issue. The resulting attitude is one of intellectual complacency, in which we all seem to take it for granted that opposition to the death penalty is universal, and the reasons behind it obvious (despite the fact that we continue to live in a society that is one of the world's six greatest takers of life through state executions).

To the extent an intellectual debate takes place about the death penalty anymore, it usually concerns only pragmatic questions about how best to convince the as-yet unenlightened that the penalty really is unacceptable. The image that results is something like Doris Lessing's "mountain of human stupidity"-- at the top of which are the intellectuals, who have always known that capital punishment is a fundamental moral violation -- and at the bottom of which is the unthinking mass that has to be gradually coaxed up to the same heights. If one holds such a condescending view of things, then debating the legitimacy of the death penalty is irrelevant-- the only thing that matters is finding a way to get everyone else to recognize the obvious truth of our assumed position, by whatever means.

The problem with this view, apart from its evident snobbery, is that it is self-defeating. Paradoxically, it is because opposition to the death penalty is so much taken for granted in certain circles that no public debate about it occurs. And it is because of this fact, in turn, that we are no longer forced to actively defend our country's practice of lethal punishment -- we can simply go on doing it, even in the absence of reasons why, or even of a strong desire to continue.

There is something truly despicable about a society that executes people even when no one is asking that it do so. It poses the question especially starkly of whom that society is trying to please. Who actually wants the death penalty? For all our sakes, there had better be someone. I refuse to accept that we are sending people to their deaths every year in the execution chamber merely because of laziness, indifference, or inertia about changing our institutions. That is far too terrible a waste.

There is another view, closely related to the "mountain of stupidity" one. One hears it generally from people of good will who in fact oppose capital punishment for principled reasons, but who feel they must argue for their position on pragmatic grounds alone, or by appeals to the wallet. A recent example of the phenomenon appeared in the New York Times, back in September. The author argued that the case against capital punishment could not be won just by making endless appeals to human dignity and the right to life. It must, rather, be argued on the basis of considerations more familiar to our debased politics, such as efficiency -- and the cost to the taxpayer of excessive public spending.
"Casual supporters of the death penalty can be made to recognize that the death penalty has become inextricably mired in the very bureaucracy and legalism it was once supposed to transcend[,]" he writes.

The author bids us make these appeals not because they are the only correct arguments to invoke against the death penalty, but because there is a better chance people will listen to them:
"Resources for fighting the death penalty are scarce, and for too long, abolitionists have spent them appealing to the humanistic ideals they wished most Americans shared, instead of one they actually do: distrust of government. Arguing that the death penalty is an affront to human dignity just doesn’t work. But portraying it as another failed government program just might."
I have sympathy for the author's position and admire his conviction that abolitionists should not spurn any available argument at their disposal, if it will aid their cause. A dainty aversion to utilitarian and instrumental ways of thinking is no asset when one is engaged in a fight for people's lives. This is not my objection.

Rather, it is this notion that pragmatic arguments are the ones that will eventually defeat capital punishment that I want to question. It seems to me far more likely that the current durability of the capital punishment regime stems precisely from the fact that the debate has not been forced onto moral terrain, for some years now -- that it has been confined to the practical realm. Very few people would want to defend the death penalty on principled grounds, anymore, if they were forced to do so. Yet our current public discourse does not compel them in any such way; this is precisely because it has given up on the underlying intellectual problems, or regards these problems as amenable to some obvious, simple, and uninteresting solution that everyone already knows.

The other major deficiency of all purely pragmatic objections to the death penalty is that there are plenty of ways of addressing them, other than through abolition. Principled objections, by contrast, can only be answered in a single way. The state can only recognize the right to life of prisoners by categorically refusing to kill them. Yet there are innumerable ways by which it might address the fact that our current system is expensive and inefficient, a drain on public coffers, that would still allow it to preserve the death penalty in some form. The recognition of utilitarian objections to the present system might even serve to make that system more brutal. If the current system costs a lot because of the large number of appeals it allows to death row inmates, for instance, and this is the only objection one lodges against it, it might well accommodate this concern by limiting the number of appeals.

One encounters a similar difficulty in debates over prison reform. Many people who oppose mass incarceration feel the point can be urged through pointing out the onerous expense involved in running such massive public institutions, charged with feeding, clothing, and housing so many people. The thought, I take it, is that conservatives can be brought round to endorsing prison reform in practice by these means, out of a desire to save tax dollars, even if they still favor in principle a harsh "law and order" set of criminal justice policies.

But the trouble is that there are a lot of ways to preserve mass incarceration, and even to expand it, that will save these same tax dollars. Some of them are in fact very sound economics, from the conservative point of view. Most of these solutions involve turning prisons over to private industry, which then has a vested interest in maintaining a huge incarcerated population (Conservatives don't seem to mind "perverse incentives" so much when they do not concern people on welfare). Our nation's privatized prisons have proven extremely lucrative so far, and many of the companies behind them have attained considerable influence over politicians, who then proceed to enact laws that jail a greater number of people for minor offenses. (See Aviva Chomsky's Undocumented, pps. 144-146, for a discussion of "ALEC" -- a supposed "think tank" that lobbies for longer sentences for a greater number of offenses, and whose membership happens to include the largest private prison companies).

The growth of the private prison industry has removed the last leg from under the "pragmatic" argument for reform.  Now it has become very good business to lock people up for vast stretches of their lives. Arguably, in fact, it has always been good economics to have an expansionary prison industry, even when that industry was run entirely by the public sector, since it could prove a source of employment, wages, and consumer demand in otherwise isolated rural communities (though this is a consequence of Keynesian theory that left-wingers will be less pleased to emphasize). It turns out that there are good libertarian reasons to favor mass incarceration. And good fiscal conservative ones. And good Keynesian and fiscal liberal ones as well.

The only reasons not to have mass incarceration, and not to practice the death penalty, are not economic ones-- they are principled ones. They are irreducible to utilitarian considerations, and because of this, any attempt to argue the points on such grounds will either prove irrelevant, or it will empower even worse and more brutal approaches to punishment than the one we have now. We cannot escape the responsibility to argue, and to go on arguing, the case against capital punishment in moral terms.

But what is the case in moral terms? I suspect many of us have not thought our way through it for some time, opposition to the death penalty being so much taken for granted among the intelligentsia. We forget that the case is not actually so obvious as we have been led to believe. It actually requires us to question some of the intuitive notions we may have about both punishment and death.

The simplest and truest reason for opposing the death penalty is that it denies humanity to human beings. All we have, at last, is our lives and our minds-- a memory of a personal past and a hope for the future. And as Ecclesiastes reminds us, both are taken from us at death. To kill someone in the execution chamber-- or anywhere else, for that matter -- is to deny everything one can to that person. It is an unfathomably terrible thing.

But what about other instances in which violence or killing seem necessary? Might not capital punishment, while a terrible act, belong in this category?

After all, most of us, most of the time are not absolute pacifists. I am not one. I think that if someone is pointing a gun at you or other people, and the only way to stop that person from pulling the trigger is to employ force, then you are justified in doing so. It is a basic and not particularly controversial idea, and it underlies many of our other ways of thinking about violence. It is on this basis that one derives the belief that wars can sometimes be just, when they are conducted with very limited goals of protecting innocent lives, and when they will not end up taking innocent lives in their own conduct or empowering actors who will do so. (Whether any modern war could possibly be fought within these limits is another question. I suspect none could, which is why I oppose all the wars in which we are presently involved, but this is an empirical question, and does not concern the abstract argument against pacifism I am making here).

Yet -- once one has granted the merits of the case against absolute pacifism, one seems already to have granted the case for the death penalty, at least intuitively. It is rather difficult to see, after all, why killing a conscripted (and probably unwilling) soldier on a battlefield is morally legitimate, and yet killing someone after a fair trial who has deliberately raped and murdered a child is not. (I do not mean by this thought experiment to describe how death penalty cases actually occur in this country. The trials that result in capital sentences are frequently not fair, for a host of reasons -- racial bias generally topping the list. The crimes these sentences punish are often far less heinous than the one described here. But I raise the point in order to get at a purely theoretical question -- namely, is it possible to imagine any morally legitimate use that could be made of capital punishment, if we do not limit ourselves to capital punishment cases as they actually take place in our society?)

I have often wondered to myself whether abstract theories of punishment matter at all -- whether they make any real difference to the world, when each of them can be used to justify regimes of such varying degrees of savagery. Yet here is a place where it seems that the consequences of our theories are very real. If force is something we inflict on the guilty because we regard it as good in itself -- because we believe it is right that people should suffer in proportion to their wrongs -- then the moral attitudes described above make no sense at all. The soldier is far more innocent than the person who murdered the child. The former is a conscript in a war he did not make, and is pointing his gun because of orders he did not give. Surely, if he deserves to be killed or somehow incapacitated by force, so does the other person.

But suppose instead we recognize that force is itself an evil, always and everywhere, and that it can only be rendered tolerable to us at all when it is used to forestall an even greater evil -- when it is employed to incapacitate someone stalking the halls of a school with an automatic weapon, say, or to prevent a plane from dropping a nuclear weapon on a city.

Once we have placed these limits around the justified use of force, then what is so flagrantly and distinctively wrong about the death penalty becomes apparent. The death penalty is wrong because it is the most extreme case of the gratuitous infliction of suffering of people who cannot pose any threat to oneself or others. It is the use of something evil in itself -- violence -- to commit the greatest harm possible against someone who has already been rendered harmless. It is cruelty stripped of any claim it might have to be preventing greater cruelties -- for it is directed against someone who is helpless and at the mercy of the state.

This is where the real foulness of our entire system of punishment comes in. It oversteps so egregiously the limits of the bare minimal exercise of force that is necessary to protect people's lives and safety. It is an exercise is massive and sustained cruelty against people who have already been incapacitated from doing wrong to others, by being removed from the rest of society.

This is where our theories of punishment matter. If we regard suffering as good in itself, when it is directed against someone who has done wrong, then these punishments are not gratuitous at all. Meanwhile, classic "rehabilitationism" -- though it provides a sound reason to oppose capital punishment, provides little other check on the sadistic potential of the state. If we regard punishment as motivated by the state's interest in the moral reclamation of the guilty, after all, then I suppose people ought to stay in prison until, like Alex in A Clockwork Orange, they are "cured all right." And I do not at all trust the state's understanding of what such a cure is, and how best to arrive there. It is clear from studying history that the 19th-century inventors of "rehabilitation" were motived by humane considerations, in most cases; but their theories have been used to justify even more savage systems of punishment than those that came before. The will to break and refashion the spirit can be even more destructive that the will to harm and lacerate the body. As Oscar Wilde writes in one of his essays: “I have no doubt that reformation is a much more painful process than punishment, is indeed punishment in its most aggravated […] form.” (Wilde took a prescient interest in theories of punishment long before his own immolation on the alter of Victorian morality.)

There is only one theory of punishment, in my view, that makes clear the reasons for our opposition to America's contemporary regime of punishment, including its use of the death penalty. That view holds violence as something evil in itself-- as something that, in the ideal world, we would well do without. It holds violence as necessary only for the very limited purpose of restraining people from harming one another. Any further punishments beyond this are gratuitous, unnecessary, and should be intolerable to us all. This is so, according to the theory I favor, not because moral agency is a fiction, or because there is no such thing as wrongdoing or blameworthiness. It is so for the simple reason that one should not "repay evil with evil," as the New Testament bids.

Arguing for such a theory requires us to wade into the moral realm, where most of the claims are not testable or susceptible to deductive proof. I have no way of demonstrating decisively to anyone that the New Testament injunction in the previous paragraph is binding. I don't recognize many other of the obligations the Bible lays upon us, nor do I believe in the authority of scripture, so I can't even claim consistency in that regard. All I have to go on is an insight, which is either self-evident or not evident at all, that suffering is bad in itself.

Making these kinds of arguments against capital punishment -- with their terminal assumptions that can prove only as much as they originally take for granted -- will be regarded by many as a thankless task. Yet they are the only arguments that are available to us who oppose our current criminal justice system. If we want our society to be one without a death penalty and mass incarceration, this is the plane on which we have to think and argue. This is the only way to save the lives of the people on death row, and those who will join them in future.

The good news is that what we are asking for as abolitionists is in line with what a great number of people already wish. They just need actually to be confronted with the question and made to choose. 

We tend too frequently to assume that the default position of human beings is toward cruelty. I find there are a great many situations in which our first impulse is toward kindness, and it is only through a misguided sense of duty or obligation, rather than an instinct for sadism, that we do not obey it. As G.K. Chesterton once put it, jestingly, "most of us are wicked and [therefore] naturally prefer mercy." 

One is especially struck by the truth of this verdict on human nature when one hears from people who actually work on death row, who actually spend their lives with people our society has condemned to die. Most of them, it seems, have far more humane feelings toward the people they execute than do we citizens who ask them to perform that terrible duty. At the moment of execution, it always seems that everyone involved wishes they could reverse the judgment, that they could let the condemned person go free. 

The abolitionist message to America is that we can. We can do these things. We can give in to mercy. The alternative is not one we would wish upon ourselves. It is to go on acquiescing to a system none of us wants, but that no one has the energy to change. At the end of that road lies only the sort of awful perspicuous self-knowledge that Edgar Lee Master's "Circuit Judge" possessed: "[...] to lie speechless, yet with vision clear, / Seeing that even Hod Putt, the murderer, / Hanged by my sentence,/ Was innocent in soul compared with me."

1 comment:

  1. I'm actually working on a case that's related to the botched execution in Arizona: http://www.law.yale.edu/news/18962.htm