“Revenge is a kind of wild justice, which the more man’s nature runs to, the more ought law to weed it out.”
A list of nations that have conducted state-sponsored executions in the 21st century reads like a “who’s who” of police states and warlords’ domains. The United States and Japan stand out as isolated bastions of civil liberties and democratic governance on this inventory of regimes willing to incorporate killing into their systems of justice. Yet when one of our Supreme Court Justices dares to look beyond our borders to provide some context for his interpretation of “unusual” (as in, “cruel and unusual punishment”) he immediately becomes subject to political attack from pundits convinced that nothing could be unusual if it is sanctioned by American statute.
Fortunately, the Justices cannot be removed for political reasons, and the best of them are not swayed by rabble-rousing punditry. Still, many American states offer up that peculiar blend of freedom and authoritarianism that makes it possible to speak freely in criticism of public officials yet presumes that the state ought to wield ultimate power over all subject to its rule. The justification for preserving this institution, seen in many parts of the world as a clear sign of barbarism, is dubious at best.
To be sure, executed criminals cannot run loose in society to harm new victims. Though that argument seems strong in its face, at its heart is an appeal to pure hysteria. Escape from high security facilities is far more commonly the plot of fiction than an actual event. If there is indeed a statistically significant risk posed by prisoners escaping from lifelong incarceration, that is a good reason to improve security in facilities holding those prisoners. Whatever actual problem may lurk underneath the politically-motivated promotion of public fear, its unexaggerated scope must be weighed against the problems created by state sanctioned executions.
Some would argue that, without execution as a prospect facing criminals, some would be more depraved and murderous in their activities prior to apprehension. Yet there is another side to that coin. Criminals already having committed capital crimes are free of that restraint. Also, the most nihilistic sort may actually prefer facing a death sentence to facing a life sentence. Since there is widespread consensus that the death penalty should never be applied to petty criminals, this discussion may rightly focus on particularly nihilistic perpetrators. At best, the deterrent value is a wash, since those rare scenarios in which it might be applicable are offset by another set of rare scenarios in which it can inspire unintended consequences.
[warning: PDF link] A pretty solid overview of correlations between the actual risk of execution in a given jurisdiction and murder rates reveals the absence of a credible link. Ending capital punishment may not actually reduce homicides, but it also does nothing to increase that risk. This seems counterintuitive to some analysts.
Yet understanding this phenomenon involves a very simple foray into the criminal mind. Practically nobody engaged in the act of murder is thinking about the consequences of being caught. Premeditated killings typically revolve around a plan to escape suspicion or apprehension. Spontaneous killings typically involve no considered thinking at all. In some atypical cases, murderers simply do not care what will become of them after the deed is done.
The “oh my gosh, I’d better not do this because I might get executed” factor seems absurd when phrased like that. It actually is absurd. This view stands both on valid analytical psychology and the statistics that suggest the risk of facing capital punishment has no bearing on actual murder rates. Oddly enough, the tendency of capital punishment’s advocates to lack empathy does not prevent them from projecting their own sensibilities — especially a fear of punishment — onto hypothetical murderers. Such projections simply promote erroneous thinking.
The only remaining “virtue” some associate with capital punishment involves a notion of justice that validates a philosophy of vengeance. That truly is barbaric. To the degree that crime victims, their loved ones, law enforcers, and officers of the court all become parties to legalized revenge; they and the system around them becomes more corrupt and more prone to excesses of brutality and prejudgement. Bloodlust is an ugly reality that can afflict ambitious prosecutors in much the same way it can afflict cold-hearted murderers. In states where executions continue, winning convictions in capital cases tends to be seen as a personal triumph for all involved.
Hunger for that triumph can, and has, caused representatives of the people to compromise their better judgement. In the past three decades, over 100 American citizens have been exonerated of crimes for which they had previously been convicted and sentenced to death. In those rare instances when evidence emerges to dispute the guilt of a convict already executed, public officials have made every effort to suppress it. It is as if some governors can be just as susceptible to bloodlust as the least solemn and restrained of prosecutors.
Giving up capital punishment does mean that some politicians give up one method of pandering to hate and fear in voters. Likewise, some prosecutors give up a fast track to higher office. Yet society as a whole gives up very little. Take the ultimate criminal “monster” — Osama bin Laden. If he is ever located, he will likely be killed rather than rendered unto American legal authorities. However, if he were tried and convicted, which is of greater use to our nation — a corpse around which our society debases itself in a national celebration of bloodlust, or a caged research subject from whom experts could extract valuable insights for preventing future terrorist attacks? It may be understandable why some Americans want to see bin Laden’s head on a pike. Yet it is neither rational nor helpful to indulge hatred over reason . . . even when the target of that hatred is so despicable those negative emotions border on being reasonable.
Whenever power is to be exercised, usually a range of options is available, some tending toward mercy and some tending toward savagery. Comparing which nations continue to execute criminals and which have banned the practice is one way to put the matter in context. The more our society is able to lean toward mercy, the more we prepare ourselves for a future of greater peace and tranquility. The more we lean toward savagery, the more we perpetuate cycles of violence and dignify the perverse association of killing with justice.
If we were too poor a nation to securely contain the worst of the worst among us, the expediency of executions may constitute a case for them. If ending capital punishment posed any sort of significant danger by way of increased criminality, that too might constitute a case for it. As a rich nation that does not face the prospect of increased criminal menace in spite of embracing this level of mercy, there are no good reasons to perpetuate the killing of helpless captives by order of our own government. There are plenty of sinister emotions driving the push for continuity in this area. To me that seems all the more reason to end capital punishment, and end it quickly.