Once again, the morality of the death penalty recycles to the forefront of public scrutiny, this time with notable political vigor as the latest development on the subject comes out of the Trump administration’s Justice Department.
The department on July 25 issued a press release announcing Attorney General William Barr had directed the Federal Bureau of Prisons to restore the use of capital punishment for federal inmates on death row, a provision the Obama administration halted in 2014. Included in the statement were the names of five death row inmates, listing their respective capital crimes and newly scheduled dates of execution this upcoming December and January.
Capital punishment is not inherently partisan. For instance, President Barack Obama suspended federal executions in 2014 over concerns of lethal injection drugs and their effectiveness. In 1994, however, another Democrat, President Bill Clinton expanded capital punishment when he signed the Violent Crime Control and Law Enforcement Act.
An Emotionally Charged Debate
That said, discourse around capital punishment tends to be emotionally charged and often logically inconsistent. The death penalty invokes lines of argument appealing to everything from conscience to the Constitution, from biblical text to personal experience, from “Forensic Files” to government data, and everything in between.
People can and do, in good faith, argue for or against the historic practice with compelling points. Compelling or not, what if we’re asking the wrong questions? Regardless, understanding the arguments is helpful for discussion, so that’s where we will begin.
Some arguments are wholly incoherent. It was only a matter of time before opponents emerged in the Twittersphere, trying to draw nonexistent parallels between the death penalty and abortion. The killing of an innocent unborn child based on the action of another is in no way equatable with killing a convicted killer on the basis of his actions. The claim hardly merits comment.
Your administration just reinstated the death penalty and scheduled 5 executions of *actual* people. You’ve lost the right to pull your, “pro-life” narrative-talking-point- bullshit with me. https://t.co/oDDaYG8JjX
— Alyssa Milano (@Alyssa_Milano) July 26, 2019
But other, better arguments emerged too.
You Make a Good Point …
Right here in The Federalist, in fact, Molly Davis argues that the possibility of wrongful convictions leading to wrongful execution is reason enough to abolish the practice. If an innocent person convicted of a heinous crime were executed instead of merely imprisoned, the government would be robbing him of constitutional rights to due process and his precious life, she argued.
While lawmakers and citizens should consider seriously the possibility of human error when discussing the legitimacy of policy, that outcome would not be neglect of due process. By the time a convict is sentenced to death row, he has exhausted the “process.” The U.S. attorney general must seek the final decision, which then a jury must decide unanimously, still leaving the defendant with the ability to appeal to federal courts. The federal government has only executed three convicts since 1963.
Nor is capital punishment cruel and unusual. Not only are modern execution methods mild in proportion to the heinous nature of the crimes that warrant them, but an isolated instance of a botched execution, such as that of Clayton Lockett during Obama’s second term, could hardly be considered cruel and unusual. Cruelty connotes willful or malicious intent, and unfortunate human error is neither of those things.
Many religious people advocate for the death penalty on biblical grounds, invoking God’s covenant with Noah in Genesis that “whoever sheds the blood of man through man shall his blood be shed.” In the Old Testament Torah, both adultery and disobedience to parents were considered capital offenses. In the New Testament, Jesus himself dismissed an adulterous woman without condemning or stoning her.
Assuming for our purposes that both advocacy or opposition are doctrinally defensible and that each of my above observations are conclusive, the death penalty is still bad policy and should be abolished — although it may not be for the reasons you think.
What Is the Goal?
While politicos squabble over the Trump Justice Department and Alyssa Milano distracts from the matter at hand to promote her own policy goals, the real questions we should be asking are: Which objective of the criminal justice system is the death penalty supposed to fulfill? And how effective is the policy at fulfilling that objective?
The criminal justice system embodies five objectives: deterrence, incapacitation, retribution, rehabilitation, and restoration. At least one of these goals, and sometimes more than one, govern each policing and corrections policy. If a practice is out of touch with these principles, it is probably bad policy. (For examples, note the policy errors of incarcerating hordes of the mentally ill after the deinstitutionalization of the mid-1950s versus the policy successes of “broken windows” policing.)
We can immediately rule out two of these objectives relative to execution: rehabilitation and restoration. Rehabilitation is the process by which an offender learns certain skills and overcomes criminally deviant vices so he might become a valuable, contributing member of society upon release from prison. Likewise, restoration is based on the premise that an offender can repay a victim for damages he inflicted, essentially renewing him to his standing before he committed the crime. Neither rehabilitation nor restoration applies to capital offenses.
But consider whether the death penalty is an effective deterrent. John and Paul Feinberg, in their book Ethics for a Brave New World, say it’s nearly impossible to prove the death penalty does not deter. “Opponents [of capital punishment] have never demonstrated that the death penalty does not deter,” they say. For instance, whether the death penalty is the reason non-murderers do not murder is simply not knowable.
However, the death penalty cannot possibly be an effective deterrent in keeping with the deterrence theory in criminology. According to this theory, punishments must be swift, severe, and, most importantly, certain if they are to deter criminal behavior. The death penalty is neither swift nor certain. It is applied inconsistently, and when it is applied, prisoners typically spend more than a decade and sometimes well over 20 years on death row.
The next goal, incapacitation, is to ensure the safety of the public — to keep dangerous or perpetual offenders off the streets. The death penalty certainly accomplishes this. But does it accomplish it in the most efficient and cost-effective manner with minimum necessary force? Hardly. Life imprisonment without the possibility of parole accomplishes public safety with less force and lower costs.
An Eye for an Eye
The final objective and perhaps the most difficult to reconcile is retribution. In Flawed Criminal Justice Policies, Frances Reddington and Gene Bonham Jr. contend that the death penalty must be applied proportionally in order to accomplish retributive justice.
“What this means is that the death penalty is applied equivalently based on the nature (heinousness) of the offense that those who commit like crimes receive like punishments, that those who commit the worst possible crimes receive the death penalty. Conversely, it means that it is reserved only for those who commit these worst possible crimes.”
They explain that factors including jury and prosecutorial discretion, racial bias, and geographical location result in disparities in the application of the penalty, saying:
In short, some offenders who ‘deserve’ the death penalty more than others do not receive the death penalty and some offenders who don’t ‘deserve’ it as much as others do receive it. Retribution fails if only a select few … are granted retributive justice. ‘Justice’ fails to be delivered in a manner that comports with the notion that it be provided to those who most deserve it. And, those who have suffered as victims or co-victims are often left without the justice and catharsis promised to them in the form of retribution via the death penalty.
Further, the fact remains that the clinical, humane nature of lethal injection cannot be compared to the unmitigated horror imposed upon so many unwilling victims and their families. A moral government cannot mete out the sort of lex talionis, or eye-for-an-eye, justice that capital crimes demand because the death penalty simply cannot mimic their heinousness. To do so would be torturous. And so we are left wondering how the death penalty is retributively preferable to a life sentence, which actually meets the goals of our correctional system.
If we’re not at least striving to meet our institutional goals, then what exactly are we doing? The time has come to condemn the death penalty as objectively bad policy.