The conversation over the death penalty in the United States stands apart from discussions of other state violence. This shouldn’t surprise us: It doesn’t seem violent. Over the past 40 years, we have grown to favor methods of killing largely indistinguishable from surgery: a controlled, deliberate process conducted in a sterile environment. Of course, these optics in no way detract from what happens: we are killing a prisoner, a captive.
It is not inconsistent to defend the death penalty in principle and oppose its application in the United States. The process by which we select the state’s victims is distorted – like most aspects of our criminal justice system – by race, class, and gender. Even the most morally permissive proponents of the death penalty concede there is room for “improvement” in how we kill our captives. A position of political pacifism – that the state may never kill – should apply both on the battlefield and behind prison walls. It is a position with which I disagree, but it is morally and intellectually consistent. However, if we allow any latitude to kill in armed conflict, we must entertain the possibility of doing so in a judicial context.
I believe it is possible for us to justify killing a captive. The conditions that create such a scenario are so infrequent that I can only cite one instance of the death penalty being justly applied in my lifetime. Before I explain how those conditions, I need to identify the common “justifications” I believe are indefensible:
- “It provides closure for the family of the victim.” This is one of the more common arguments for the death penalty, and I believe it is the least morally defensible. In this context, “closure” is a precise, but supremely dishonest synonym for a much less sympathetic objective: vengeance. Stripped of evasive language, the argument is this: Killing will make us feel good. I tend to believe that moral people don’t end human life to feel good. Moreover, that doing so would even achieve its intended effect is a myth: It very clearly doesn’t, much to the annoyance of people for whom killing is a Pick-Me-Up.
- “It’s cheaper than life in prison.” Effectively absurd. I am sympathetic to the opportunity costs associated with incarcerating a person for life, versus using those resources elsewhere. However, many state prisons are underfunded as it is, and the crisis would hardly be mitigated by slaughtering every prisoner on death row. American lawmakers want wholesale incarceration while slashing correctional budgets. Nobody gets re-elected by directing more taxpayer dollars to the welfare of criminals. The effect of this trend is violent and deteriorating prisons, high recidivism, and thoroughly unmotivated correctional officers. As a society, we are obligated to guarantee the welfare of those whom we incarcerate. The suggestion that we should kill in order to free up limited funding – or simply to lower taxes – is grotesque. Western liberal democracies don’t kill for budgetary reasons.
- “He deserves it. He’s a monster.” We hear the term “monster” frequently used to describe murderers. We want to dehumanize them, so as to avoid acknowledging similar impulses that may exist within ourselves. Amateur psychology aside, we shouldn’t end human life without a purpose, an objective in doing so. “He had it coming” isn’t a purpose. It’s an obtuse assertion, often based on ill-considered dogma, which brings us to my final and worst justification for killing:
- “God told Moses, ‘He that taketh another man’s life…'” There’s little to say about this, considering we’re discussing capital punishment in mankind’s first wholly secular republic. God told Moses, Prince Charming told Cinderella, Snow White told the Seven Dwarves… Told them what? It doesn’t matter. It’s fiction. It’s pure superstition, and does not deserve any consideration in our decision to end human life.
Deterrence is by far the most common argument offered in support of the American death penalty. On the surface, it’s the most morally palatable. Speaking in terms of pure moral arithmetic, we can justify this violence if we know it will prevent future suffering. The deterrence argument sells us the death penalty as a method of behavior modification. By introducing additional risk into a potential offender’s decision-making, more of them will conclude the risk (premature death in captivity) outweighs whatever incentive they perceive in the crime. This argument is coherent, but behavior modification via an unfavorable risk/benefit ratio rests on three assumptions:
- The target demographic (potential murderers, mostly) is capable of conducting a realistic risk/benefit analysis.
- They’re prudent enough to do so.
- They see their own death at the hands of the state as a negative outcome.
In a strong majority of American death penalty cases, at least one of these assumptions is invalid. Many death row inmates suffer from cognitive or behavioral disorders which prevent informed, rational decision-making. Many suffer from both. Thus, the population that would presumably be deterred is actually incapable of making the necessary calculations that result in more socially desirable behavior.
Even those capable of such a calculation – of average intelligence and without violent psychiatric disorders – often don’t do so. Consider a recently laid-off worker who kills six colleagues he blames for his dismissal. Consider a husband who, returning home early from a business trip, slaughters his wife and her two lovers. How likely is either to soberly consider decades of death penalty jurisprudence before selecting a course of action? Extremely unlikely, and this is a reality we often gloss over.
The third assumption – that our offender sees death as a negative outcome – has enjoyed closer scrutiny in the years since 9/11. A religious terrorist wants his enemy to suffer, but this is objective is often just a favorable byproduct of his ultimate goal: To die for his faith. In a mind that favors death, the death penalty may have the opposite of its intended effect: Dzhokhar Tsarnaev’s recent death sentence – a high-profile death at the hands of the US federal government, to be executed after many years of publicity – is unlikely to deter young men with values and ideologies similar to that of the Tsarnaev brothers.
The rationale behind the deterrence justification is that we can reduce future by influencing behavior of potential offenders. While less common, we should also consider another population whose cruelty we can prevent: Those we’ve already captured. We can be justified in killing a prisoner when our prisons are unable to guarantee the safety of the public, prison staff, or other prisoners: The “Hannibal Lecter Scenario.” We may kill a prisoner whose strength, intelligence, or external resources exceed our ability to safely incarcerate him. No prisoner has ever escaped from America’s ADX Florence or Russia’s Black Dolphin Prison. It’s difficult to imagine a scenario in which any could. Twenty-four hour observation, vigilant protocols, and 1:1 Prisoner-to-Staff ratios also make these prisons – somewhat counter-intuitively – very safe places. However, if a convict repeatedly defeated our ability to safely incarcerate him, we would be justified – or even obligated – to end his life in captivity.
As practiced in the present day United States, the death penalty does not meet my moral criteria. It does not have measurable deterrent effect, and our most secure facilities are quite capable of managing their residents. In what applied scenario, then, would I feel justified in killing a captive? Barring the capture of a real-world Dr. Lecter, we would need a case that met the following standards:
- The crime caused – and continues to cause – severe, widespread human suffering.
- There is effectively no residual question regarding the defendant’s participation in the crime(s).
- The crime is of such a nature that it’s almost alway committed by those of sound mind, fully aware of the potential consequences, after protracted risk/benefit analysis.
The first standard describes dozens of murders committed daily in the US. Over the past decade, various Innocence Projects have shown our ability to demonstrate guilt “beyond a reasonable doubt” to be, one might say, doubtful. The third effectively excludes most cases for which we hear the loudest demands for death. So who? Who would I kill? Whose vein would I flood with poison, killing a human being unable to defend himself? These guys:
Given a valid death warrant and having personally verified their guilt, I would kill both of these men. Aldrich Ames and Robert Hanssen were both convicted of multiple violations of the Espionage Act, largely because treason is a uniquely difficult crime to prove in American jurisprudence. For all intents and purposes, they’re traitors. They caused the death of dozens of American and Soviet citizens.
They killed, but they also eroded the ability of the state – “The Leviathan” – to guarantee the security of its citizens. Furthermore, they committed their crimes throughout long careers, and were entirely aware of the suffering they caused. They fully knew the potential consequences of their behavior. While neither man will ever see natural sunlight again, killing them would have a genuine deterrent effect on officials considering similar crimes. The evidence against them was overwhelming. The suffering they caused is still being quantified. The traitors of our future will betray their nation knowing Ames and Hanssen will be allowed to enjoy their full natural lives. Killing them would be good and just and moral.