It is one of the more striking features of the poorly-named “Western tradition” that two of its foundational stories both involve an act of extraordinary injustice and an ultimately, unwarranted, state-sponsored execution. To say that the death penalty lies at the very heart of Western civilization is true, so long as we modify that point: a concern with the death penalty lies at the very heart of Western civilization.
That seems an important modification to make, precisely because the United States finds itself in the peculiar position of being the only “Western” country within its primary coalitions (NAFTA and NATO especially) still to employ the death penalty. Europe has outgrown the death penalty (Turkey will surely have to give it up if it is to have any hope of being admitted to the European Union). The United States has not outgrown the death penalty, at least not yet. And so it finds itself in odd and uncomfortable company with those countries that still use the death penalty quite liberally: among them Russia, Saudi Arabia, China, North Korea, and Myanmar.
Deterrence, Vengeance, Retribution
In an increasingly abolitionist global environment, what are the arguments for a continued commitment to the death penalty? There are three main ones.
Far and away the most common argument offered in favor if the death penalty is the argument for deterrence. The threat of execution, it is held, deters violent crime. The problems with this argument are two-fold: first and foremost, there is no statistical evidence to suggest that it is true. States that had a death penalty, got rid of it, then brought it back again, display no shift whatsoever in their rates of violent crime and/or homicide. The reasons for this are not far to find. Most violent crimes are crimes of passion, not premeditation. Deterrence would presumably only work for crimes that are premeditated. And those crimes, murder-for-hire mostly, are committed by professionals of a sort who do not intend to get caught.
Deterrence also hinges on what are essentially Utilitarian premises, the old Anglo-Saxon moral calculus of measuring out dollops of pleasure and pain. It is held that the ultimate suffering of one person is outweighed by the benefits to society as a whole. The Classical Athenians, many of them at any rate, reasoned this way when they elected to put Socrates to death. The Athenian death penalty was believed to deter too much cynical philosophy. The Roman regional administration in Judea reasoned this way as well, believing that so egregious a form of punishment as crucifixion would deter rebellion in this most rebellious of its eastern provinces. Pontius Pilate mingles world-weary cynicism with Utilitarian calculation in some of the most memorable lines assigned to him in the Gospel according to John.
One met similar Utilitarian arguments for deterrence when the question of state-sponsored torture was still in question. And it was here that the intuitive problem with Utilitarianism as a singular moral philosophy became most apparent. It is not the attention to moral consequences and moral results; one can care about consequences and not be a Utilitarian. Rather, the problem is that such “consequential” reasoning about deterrence takes off the table any conception of human life as having sacred value. And as a corollary, appeals to deterrence seem to take off the table any initial inclination to deem certain things unthinkable and therefore unjustifiable in any circumstance. Things like torture, or the deliberate infliction of pain.
Now, with so many obvious problems of ancient and modern pedigree, why is the argument of deterrence made at all? In short, deterrence is invoked to distract attention away from what is, for real inspiration for an inclination to the death penalty: vengeance. State-sponsored killing offers a singular way to express the outrage we quite naturally feel in the face of violent crime, especially those most heinous acts of human outrage that result in death.
To be sure, the desire to kill in response to a killing is understandable, and all too visceral a reality for victims of violence and their families. It is a natural, and often quite understandable, response to the trauma of violence and the grief of loss. But to submit to this emotion—for it is an emotion, and not an argument—is ironically to eviscerate all the original reasons for state-sponsored killing I outlined above.
The logic of vengeance is the logic of the blood feud. It initiates a cycle of violence that cannot be ended in its own terms. The state intervenes with a sentence of death precisely to take this exercise of ultimate power out of the hands of those most personally and emotionally involved, and to render justice less emotionally. The state takes the power of killing away from feuding clans and enacts justice, not vengeance. That has always been the understanding of how the death penalty should work. It offers an answer to an age-old question posed both by the Bible and by Greek tragedy (and Greek philosophy): how to escape a never-ending cycle of revenge killing? In short, one escapes to the state and its institutions. The state kills with blindfolds on, de-personalizing this most personal of all human actions, with careful attention to certain ritual effects and due process. The idea is that this creates the possibility of that most elusive of all psychological and moral events: closure.
It is precisely by thinking through the outlaw logic of vengeance that one is led to the third, and probably the only compelling, argument for the death penalty. It is for that very reason harder to give a name. Let’s call it just retribution. Such an idea captures what I tried to describe as the limits of the illogic of vengeance. The state ironically asserts the value of the lives of those citizens who have been lost to violence, by violently punishing their killers. The state takes the power of life and death out of the hands of individual citizens, and places it squarely in the hands of the people, represented by a jury in the US system of justice.
This is not a silly argument, and it will not be defeated by the quotes one normally hears arrayed against it. “Why do we kill people who kill people to show that killing people is wrong?” Just retribution is intended as an answer to that question. Gandhi offered a still more memorable line in opposition to the death penalty: “An eye for an eye makes the whole world blind.” There is something to that observation, but the blindness of capital punishment is held up as a virtue by its supporters. It is supposed to be killing that is not personal; it does not see the people, only crime and punishment.
Cruel and Unusual
The real problem with the concept of just retribution is the notion of “justice” it employs. For in my discussion up to now, I have only imagined imposing the ultimate penalty in a case where someone has been killed. But historically speaking, the death penalty has rarely been limited to acts of premeditated murder. Rape and robbery have regularly been punished with death, and still are in many of the countries I mentioned above.
This is a subtle point, but a crucial one. Conceptions of what rendering of justice might be “proportional” changes dramatically with time. Equally changeable are our notions of what kinds of punishment are appropriate. In the memorable first pages of Michel Foucault’s masterful Discipline and Punish, Foucault describes an almost surreal public execution in Paris on the 2nd of March 1757: a convicted murderer is submitted to flesh-tearing, burning sulphur, molten lead, burning oil and wax, and finally drawing and quartering with horses. When the horses failed to pull him apart, his limbs had to be cut at the joints until the horses finally broke the man. Unbelievably, he lived through all of this. Later, in the end, his corpse was ceremoniously burned, and the ashes publically dispersed. Clearly, when the founding fathers of the Unites States added the specific prohibition of “cruel and unusual punishments” in the Eighth Amendment, they had practices like this in mind. Such torture is not just retribution; torture was no longer thought to be “just” at all.
Justice, in this sense, is not absolute; the execution of a death sentence is, however. Therein lies the paradox of the ultimate penalty of death. The justice required to make the argument for just retribution make sense needs to be what it cannot be: timeless and unchanging. Human justice is never that. It is important to recall that both Socrates’ and Jesus’ executions were entirely legitimate, according to the standards of the day in Athens and in Rome; it is only in retrospect that we recall them as acts of grave injustice.
Evolving Standards of Decency
Over the past forty years, the United States Supreme Court has returned repeatedly to that dilemma as it tries to hammer out a view of the death penalty that will fit within our Constitutional system; as well as addressing what it famously referred to as “evolving standards of decency that mark progress of a maturing society.”
That phrase appeared in the first major death penalty case to be heard in response to the cultural tumult of the 1960s, Witherspoon v. Illinois [391 US 510 (1968)]. The case did not tackle the Constitutionality of the death penalty directly, but rather examined the question of what properly constitutes a jury in a capital case. It was a fascinating way to begin the debate; not by examining principles or Constitutional logic, but rather by looking at the actual procedures through which human beings enact their conceptions of justice, in courts of law.
William C. Witherspoon was charged with killing a police officer to avoid arrest in 1959. In his original trial, during the jury selection process, 47 potential jurors were “excused for cause.” This ungentle phrase refers to the individual examination of potential jurors known as voir dire. The prosecuting attorney asked each potential juror how they felt about the death penalty; any who expressed reservations were excused, even though only five of them had said that they would under no circumstances consider the penalty.
The majority of US Supreme Court justices concluded that “the State of Illinois has stacked the deck against the petitioner,” and that in so doing it had violated the Fifth Amendment’s guarantee that US citizens cannot be deprived of life, liberty, or property without “due process of law.” In other words, Mr. Witherspoon did not receive his due in the process of selecting a jury of his peers.
The Court went still further, saying that the justices could even have imagined a situation in which a potential juror, while personally opposed to the death penalty, could “subordinate his personal views” to his oath, to do his duty as a juror “and to obey the law of the state.”
Clearly, this was a very progressive and very far-reaching decision. So much so that the three Justices who dissented (Justices Black, Harlan and White) said that if the majority wanted to get rid of the death penalty, then it should say so explicitly, not play games and make it practically impossible to administer.
Four years later, the Court struck again in Furman v. Georgia [92 S Ct 2726 (1972)], a strange case that involved three different death sentences, two from Georgia and one from Texas; two of the three involved rape, not murder. The decision was a narrow one (5-4) and ran to nearly 300 pages, as opposed to the 18-page decision in Witherspoon.
Here once again the question of what constitutes the proper role of a jury was at issue. In essence, juries in capital cases had what the majority referred to as “untrammeled discretion” in deciding who received a death sentence and who not. Unsurprisingly, prejudices were revealed in the statistical record of who received a death sentence in the United States. Assessing death sentences imposed since 1930, the Court noted that blacks constituted 57.7% of all death row inmates, men constituted over 90% of those inmates, and the indigent constituted nearly 100%. In such circumstances, trust in the fairness of the system was fatally compromised, and such jury discretion (read: prejudice) rendered the punishment cruel and unusual, and thus in violation of the Eighth Amendment.
This decision effectively struck down every capital statute in the country.
Yet there was great confusion about what the Supreme Court intended to say in the Furman decision. The Justices did not help themselves by writing so many separate opinions, and in disagreeing so vehemently with one another. More to the point, the justices had once again skirted the question of whether the death penalty was in principle unconstitutional, contenting themselves with a close analysis of the relevant court procedures, not the principle.
Three main interpretations of the meaning of the Furman decision arose. First, some felt that the Court clearly was opposed to the death penalty across the board, and would always find some procedural way to strike it down in any particular case; these people gave up on the attempt to write new death penalty legislation. A second group of interpreters felt that the Court was simply opposed to jury “discretion”; in their view, a mandatory death penalty would neatly solve the problem. A third group felt that the Court was inviting further reflection by legislatures on how to create a system where juries had some discretion in particular cases, but not the “untrammeled” sort that led to the willy-nilly execution of blacks, men, and the poor.
By 1973, nine states had already abolished the death penalty. After the Furman decision, 35 states drew up new death penalty laws, 20 of them with mandatory death sentences, and 15 with various attempts to “guide” jury discretion toward more consistent judgments.
Several states had more distinctive histories. New Jersey scrapped its death penalty and did not reinstate it until 1982 (it never used it, then finally scrapped it again in 2007). North Dakota and Kansas maintained the death penalty for a single crime: murder committed by someone already imprisoned for murder. Massachusetts and South Dakota legislatures saw their new death penalty statutes vetoed by their governors. And California’s then-governor Ronald Reagan was so outraged by the California State Supreme Court’s overturning of his state’s death penalty that he personally lobbied for that tried-and-true California initiative: an electoral proposition (Prop. 17) that called for reinstating a mandatory death penalty in California. (A second California State Supreme Court Justice, Rose Byrd, was ousted over this same issue in 1987.)
In 1976, the Supreme Court clarified its intentions further. Gregg v. Georgia [96 S Ct 2909 (1976)] actually involved five separate cases, all from Southern states (Georgia, Texas, Florida, North Carolina, and Louisiana). In three of those cases, by a 5-4 vote, the Court affirmed state laws that provided instruction to juries in order to guide their moral decisions regarding the sentence of death. By a 7-2 vote (with Chief Justice Rehnquist writing in dissent), the Court overturned mandatory death penalty statutes in Louisiana and North Carolina (the North Carolina law mandated death for sixteen different crimes ranging from murder to rape to armed robbery).
The Gregg decision led to the creation of the system that we still have today. Any trial in which a state or federal prosecutor intends to seek the death penalty must be a “bifurcated trial.” In the first phase, guilt or innocence is assessed. In a second trial, new evidence is heard involving the mitigating and aggravating circumstances in this particular case. At the conclusion of the second phase of a capital trial, jurors are provided with a questionnaire that essentially provides the “guided discretion” for which the Court was calling. By the time you have worked through the questionnaire, you will have often been led to one or the other conclusion. Finally, any death sentence carries an automatic and mandatory appeal to the State Supreme Court.
The moratorium on the enactment of the death penalty was thus lifted in 1976, and on 17 January 1977, Gary Gilmore became the first US citizen to be executed (in Utah) since the Witherspoon decision nearly a decade earlier. Gilmore, like Jesse Walter Bishop (who was the third person to be executed, on 22 October 1979 in Nevada) was executed voluntarily, causing Supreme Court Justice Thurgood Marshall to complain that the death penalty was fast becoming “state-sponsored suicide.”
The history of the death penalty since the landmark Gregg decision may be divided into three stages. In the first (1977-1982), there was a good faith effort by courts and legislatures alike to administer the new standards and procedural safeguards the Supreme Court had called for. In the second stage (1983-2000), it began to seem as if state courts and legislatures were abandoning the standards and returning to the pre-1968 business of state-sponsored execution. And then, quite suddenly in 2000, a new questioning of the justice of the death penalty emerged in some surprising and unexpected quarters.
Three cases were especially revealing of the disturbing new realities when the standards and safeguards were largely abandoned.
On 5/6 October 1983, James D. Autry received a stay of execution in Texas just 24 minutes before he was scheduled to die, and after already being strapped to the gurney with the IV tubes already inserted in his arms (Autry was later executed on 14 March 1984). This seemed to suggest that states no longer needed to worry about cruel and unusual punishment.
On 15 December 1983, John Eldon Smith was executed in Georgia; his wife was also sentenced to death in this case, but she was not executed. This seemed to indicate that states no longer needed to worry about untrammeled discretion.
And on 2 November 1984, Velma Bullard Barfield became the first woman to be executed since 1961, in the state of North Carolina. Barfield’s case was especially disturbing to abolitionists, and not only those like myself who worked on her case. The governor of the state, James Hunt, was running for Senator against arch-conservative Jesse Helms, and Helms had made the question of granting Barfield clemency a major campaign issue. The execution was scheduled just six days before the election. Barfield’s clemency petition, supported even by the prison staff with which she worked closely to assist new female inmates, was denied. If Velma Barfield could not receive clemency, then the prospects for anyone on death row nationwide looked grim indeed.
Then some unusual things began to happen; states started re-asserting a moratorium, this time because of the prevalence of new investigative procedures and DNA evidence that began to exonerate, much to the horror of all involved, several persons—most all of them men, most all of them black, and all of them poor—who were awaiting execution for crimes they may well not have committed. The specter of the unjust execution, the image that haunts the conscience of the Western tradition, has led to a renewed investigation of the justice of the death penalty as an institution.
It began where Witherspoon began, in the state of Illinois. Then-governor George Ryan (a Republican, and himself a prisoner in federal detention since 2007) ordered a ban on the death penalty that has been renewed by his Democratic successors, Pat Quinn and long-suffering Rod Blagojevich.
A World of Violence
And that is where we are today, initiating, with halting baby steps a new national discussion of the justice of the death penalty. The debate operates at two levels, as the US Supreme Court did. One set of questions concerns the pragmatics of how the death penalty is imposed. That is a procedural question best addressed in legislatures and courts of law. The second is housed in educational institutions and faith communities.
As a practical matter, close analysis does point to some disturbing trends in the way the death penalty is imposed. There is often little rhyme or reason as to why one person receives a life sentence and another receives death. While there are many more whites executed now (57% of the total since 1976), the percentage of women on death rows remains unchanged, and all such residents remain poor. No one who can afford private counsel gets the death penalty; our system simply doesn’t work that way.
And in the current economic climate, new arguments against the death penalty have begun to appear in some surprising quarters. A new argument for abolition stems from the cost of the death penalty. Capital trials are almost always longer and more expensive; there are more witnesses in general, and bifurcated trials mean you are getting two trials often for nearly twice the price. The mandatory appeals process takes years and literally costs millions of dollars, far more than it would cost to house someone in prison for life.
I used to think that a frivolous argument; I no longer do. The reason is this. Given our Constitutional commitments, we will and must have such mandatory safeguards and review; this is a good thing. Therefore, in this country, the death penalty will always be prohibitively expensive. In other countries like China, it is not. And in those settings, ironically enough, the death penalty does have a deterrent value; the deterrent value of any law has to do with the swiftness and certainty of punishment, not the severity of punishment. In the United States, the death penalty will never be either certain or swift. By contrast in China in the early 1980s, where there was no equivalent conception of civil liberty or Constitutional protection, 5000 persons arrested for highway robbery were executed en masse; robbery statistics immediately plummeted. Happily, we will never countenance that kind of death penalty in this country. And that is why the death penalty here will always be expensive, and will always be a kind of cruel and unusual lottery system.
Questions of principle are harder to resolve. One could argue that the lottery-like quality of the death penalty’s imposition is itself “cruel and unusual.” It seems unfair somehow that one would only be eligible for a death sentence if one committed a crime in Texas rather than New Jersey or Hawaii. The state of Texas has accounted for well over a third of all executions since lifting the ban in 1976 (a staggering 432, starting with James Autry, out of 1151 executions nationwide).
The difficulty in initiating a substantive discussion of the death penalty is that emotions on all sides run so high. We live in a world of violence, a world that at times seems a chamber of horrors. In just the past few months, we have witnessed fifteen persons gunned down in Germany and eleven more than that in the state of Alabama. In the face of such enormity, words break and grief can overwhelm. An impulse for vengeance, like blind rage itself, is all-too-human and all-too-understandable. Yet these are poor places from which to engage in serious deliberation over matters of great moral complexity. Recall that the death penalty was originally designed so that cool heads would prevail over vengeful rage.
On March 10, the State of Georgia executed its first death row inmate of 2009. The case was a strange one, concerning a crime committed more than 22 years ago. After an evening spent drinking Bloody Marys with his live-in girlfriend and their neighbor, Carol Sanders Beatty, Robert L. Newland drove his truck to the pier, struck a parked vehicle, then fled the scene on foot; it was 30 May 1986 on St. Simons Island, Georgia. Newland inexplicably returned to Beatty’s duplex, and when she spurned his advances, he stabbed her with a knife; Beatty died the next day, after identifying her assailant to police. Newland was convicted of with intent to commit rape, then sentenced to death.
This case and the curiously worded charges suggest one more problem: namely, the cultural embeddedness of any and every judgment about which crimes warrant death.
Once upon a time, it was the robber and the gunslinger who attracted capital attention. John Dillinger’s bullet-ridden corpse was put on public display in the 1930s. If a woman were to be executed, then she would need to be some Bonnie working with a Clyde. But these days, it is the crime of passion, especially one that links sex and violence, and especially one where a man kills a female lover or would-be lover, that elicits capital attention. It is important to recall that there was absolutely nothing premeditated in Newland’s strange and erratic behavior that evening. What there was, instead, was a crude and unsuccessful sexual advance, its inevitable rebuff, and then a drunken bout of male rage.
Consider the following recent trends here in Georgia. William Earl Lynd was executed on 6 May 2008 for kidnaping and killing his then-girlfriend. By contrast, on 23 September 2008, Troy Davis’ execution was stayed just two hours before it was scheduled, due to the admission of a significant likelihood that he did not kill the police officer he had been convicted of killing (his accusers recanted).
In short, the standards of any maturing society may not evolve, but they do change. Yet the decision of death is unchangeable.
Perhaps persons inclined to the Christian faith might join others of similar ethical interest and inclination to perform a thought experiment. What if Jesus and Socrates had not been killed? What next? What might they have said in prison? Whom might they have reached, whom convinced? When might they have been released? How might they have been reintroduced into the societies they offended? In what ways are forgiveness and reintegration the flip side of any mature system of justice?
To be sure, most Christians believe that Jesus did reach and convince others, after his rising. And most Platonists believe that Socrates also managed to reach and convince others, primarily through the record of his life and his manner of facing its end. But neither Jesus nor Socrates wrote a word; those who wrote about them were agreed that the manner in which they were killed, in both cases, was an outrageous assault on justice.
The death penalty is swift and it is certain and it is irreversible. Given certain widespread political and theological commitments regarding the inviolable moral worth of persons (imagined respectively as rights, and as sacred value), it is arguable that the death penalty requires a degree of certainty unavailable to any human system of law and moral reasoning.
This, to my mind, is the primary and the ultimate reason for us to eliminate it.