Thursday, November 18, 2010


Political Mayhem Thursday: Campbell's question about capital punishment

Do you ever wish you could have a dinner party with people from different parts of your life, to hear them interact? The Razor is like that for me some days.

A few posts down, there was an exchange in the comments section between Alan A., who is a friend from college (that is, someone who knew me 27 years ago) and Campbell, who was one of my students at Baylor. The truth is, they would be wonderful company at dinner, and like each other quite a lot, I think.

For today's discussion, I want to use Campbell's excellent comment as a starting point... I will chime in later:

Some of my fellow judge advocates were talking about the Petit case today at lunch, and the topic of capital punishment came up. Ordinarily, I'm against the death penalty - I think life without parole works just fine, and I'd like to think that the People/State/Government can and should take the moral high ground and say "we're not stooping to more killing."

On the other hand, there seem to be those crimes that are damn near unforgivable. The Petit case is one. The Oklahoma City bombing and 9/11 are others. I haven't been in the position of having to ask for the death penalty, so I'm not going to act like I've been there, done that. However, despite my overall opposition to capital punishment, I don't believe that it was somehow wrong to execute McVeigh, and I don't think it's wrong to execute the Petit or Billings murderers.

As cold-blooded and barbaric as it may sound, retribution is one of the goals of sentencing, and whether you agree with capital punishment or not, it's certainly one way to take retribution against the worst offenders.

It's not the only or best way to take retributions, though.
Here are a couple of the complexities of my feelings of which I spoke. I truly believe that some people are beyond any hope of rehabilitation and would be a continued and unacceptable danger in a free society. In order to permanently remove them from society, you can keep them in prison forever or kill them. One argument for killing the convicted is that it is a deterrent for others. I tend to doubt that someone who is so far over the edge of normality that they would commit a heinous act would actually be deterred with the possibility of capital punishment. Another argument is that society and the victims need it for closure. As Mr. Petit so painfully but eloquently put it (and I paraphrase) the hole is jagged now – the sides may smooth over time, but it will never be closed. I will confess to having feelings of revenge that are satisfied when a killer is killed, but I am not proud of those feelings. Some of the best action movies are built upon a framework of revenge, so I think we are conditioned to cheer the results. Recently when other countries were preparing to execute prisoners we all lost our minds – but we somehow exclude our own capital punishments form the same view. Don’t get me wrong, I am not trying to equate adultery in Iran with multiple homicides in Florida; however, many countries in the world find our executions barbaric but we only view them as naïve.

Years ago I was the lay minister at my church for one Sunday and my message was on forgiveness. The bottom line was: the Bible does NOT say that forgiveness expunges the criminal from punishment, but rather frees the victim from the burden of hate. The criminal will still have to serve their time, but now the victim can move on with life.

Wish we were having dinner together – maybe someday.
Retribution schmetribution. The criminal legitimizes his punishment by the act of transgression. It is the fulfillment of the legal process.

Still, execution is a terrible penalty, and such power should not be used lightly or by those who are sure of their own righteousness.

I have been party to an execution. I worked to keep a man on death row, and on May 19, 2010, just after 6:00 pm, the State killed him. I do not doubt he deserved death: he wa a rapist and murderer who callously took the lives of others. Any time he was near others, they were in danger.

I still lose sleep over it. I wake up with cold sweats fearing that I did the wrong thing with his case. But then my mind takes over and I realize who and what he was.

Being in law enforcement means that I must, at times, wield this terrible power. But I would rather it be used by those of us whose morality causes them pain and sleepless nights than those who could do it without a second thought.
One of the problems is that unlike the difference between being alive and being dead, there is not a chasm between those people who just barely deserve death and people who don't quite deserve death. People disagree on where the line is. We have varying degrees of imperfect knowledge of the facts. Maybe we back the line up a little bit, just to make sure we don't accidentally kill someone who doesn't deserve it. And maybe we jealously guard against letting the line slide back under the intoxicating effect of vengeance.

But if anyone is executed, there is under whatever standard we use, at some point a case on the edge that requires a judgment call. It will be made by different people and therefore it will be made inconsistently. Eventually there will be some people who were not executed who did things just a little bit worse than some people who were. Even though it is a tiny number of cases and involves lives I could admit the world is better off without, it bothers me that our society allows the difference between life and death for some people to be arbitrary.
All goals of punishment being equal, don't retribution and rehabilitation cancel out in the case of capital punishment? Is this a paradox that we have created, or is it inherent to any justice system?
Wow...first, Mark, thanks for picking the question up and running with it. I'm only now reading it and commenting because I just got home.

Alan - thanks for putting your views out there. I share very similar ones. First, I don't think that capital punishment is an effective deterrent, because people like the ones I referenced a few days ago are definitely way over the edge. Second, I don't buy the closure argument. Maybe it does allow some people to move on, but I'd still be devastated about my loved ones being murdered no matter what happened to the perp.

But I also share Lane's point of view - it's not like the Petit murderers didn't know what they were doing when they broke into that house and murdered those people whose only crime was being home at that time. Actions have consequences - drastic actions have drastic consequences.

Another question for you - how possible or realistic do you think it'll be for Mr. Petit to forgive his family's murderers? I know that Jesus teaches forgiveness no matter the transgression, but I can't believe that even Jesus himself wouldn't be mightily ticked off at those guys for what they did. (I also plead ignorance on many questions of religion, though.)

Lane - glad to see another prosecutor with sleep troubles. No matter what case we handle, people's lives are always at stake - especially the defendant's. Justice is never served if the defendant's life and the effects of a criminal sentence on it are tossed aside like a piece of garbage. That doesn't mean we don't take drastic action against a defendant - it just means we'd better think long and hard about it before we request that life sentence or death penalty or dishonorable discharge. My thoughts are that if you worry about whether you're doing the wrong thing, you're probably doing the right thing. It's the prosecutors who can toss around the heavy sentences without a second thought that worry me.

5:15 - haven't thought of it in those terms before. A question, though...doesn't your statement assume that all the sentencing goals apply equally in every case? Isn't it possible that one case could scream for a specific deterrence approach, one calls for a rehabilitative approach, and one calls for a retributive approach?
Lane, this is the one area where I don't agree with you. If you lived and worked in a non-death penalty state (Minnesota?), would you feel the same way? Is your argument simply that you're just upholding the law? If so, I think that's not enough.

I also take issue with the notion that someone "deserves death." I know that's the underlying theory behind the notion of the death penalty--eye-for-an-eye and all that--but when we're talking about putting anyone to death, I am fundamentally uncomfortable about a system where (as Nathan points out) one imperfect human can determine that another human deserves to die.

And believe me, I fight my gut reaction on this, knowing that there are incurably dangerous people out there who've done unspeakable things. I can't deny that part of me feels relief that a sociopath like Ted Bundy is dead.

But I can't accept that one person, or a jury of people, can say whether a fellow human being should live or die, in our society or any other. Despite the worst of the worst, the most obviously evil, for me it's not worth the cost of possibly executing the wrong person, or of the arbitrariness of who happens to sentence the killer.

At the root of my view is the there-but-for-the-grace-of-God-go-I argument: We are all but a thin line away from circumstances which might have made us into that killer, or that sociopath. I just can't get past that.

I respect tremendously all the principled, soul-searching prosectors out there, and your desire to protect society. But for me, maybe there is a place for emotion--or something beyond the established principles of sentencing, something instead of pure reason--where imposing death is concerned.
5:15 - forgot to address the "paradox" part of your question.

I think the conflict between retribution and rehabilitation is inherent to our justice system and to many others - and it ain't just in the death penalty cases. I also think that conflict is necessary for a just and effective criminal justice system to exist.

If we were just concerned about retribution, we could lock every offender up for life without parole. We (and many other countries) don't do that, though, because we realize that not every crime deserves such harsh punishment and that many criminals are, in the end, good people who did a bad/stupid thing and deserve another chance. But we don't just let their crimes slide. The struggle comes in finding the appropriate mix of retribution and rehabilitation.

It's a paradox not easily resolved, and I don't think it even can be. And that's a good thing, in my mind. It forces us to make the tough decisions and consider a criminal case from all perspectives. When we do that, hopefully we arrive at the just result.

Apologies for the soapbox-ish response. I get a little fired up about this stuff. Just be glad we're not talking about the Philadelphia Eagles or I'd really be going crazy.
And maybe "protection of society" should be the goal of sentencing. I think it's possible to protect society without killing the killer.
I was anti-DP until I got my first capital case. Some people have done such terrible things that there is no sanction against them great enough. It goes back to my Hegelian notions about justice: the criminal, by violating the rules of civil society and personal autonomy commits a crime. The fulfillment of the unfolding of that action is the punishment, and for some acts, for violent rapes and murders, the fulfillment of that unfolding is with execution. It is a horrible burden to be party to that, but ultimately, necessary.
For me, my opposition to the death penalty really is spiritual. I understand and may even agree with Lane's points, but if faith is real, it must guide us even when our urges, society, and even logic may lead in a different direction. It is not logical, for example, to give away what you have and even need, but many faiths compel this.

Because Christ came upon an execution and condemned it (John 8), I must do the same.
I think that I mostly agree with Swiss Girl's take on things here.

Reason, in any field of endeavour, only takes you so far.

There are criminals who commit unspeakable acts of depravity, people who are beyond any reasonable hope of rehabilitation and return to society. The Manson Family criminals come to mind, as well as, the others herein mentioned. Their heinous acts shock us so that we might reasonably conclude that if they do not deserve the death penalty, then who does deserve it?

Yet, do we really want the state to possess this power? Also, I think someone else has said that locking up these individuals for life without the possibility of parole effectively removes them from society.

Perhaps, what we struggle with is our own primal desire for revenge which reason by itself cannot explain away.

Moreover, we cannot explain away with psychology, religion, or jurisprudence the depraved acts of the murderers mentioned. Clearly, Bundy, Manson, and others were and are, in the case of Manson, sociopaths.

But, what about sociopaths who do not murder directly but manipulate others to murder for them? Should they be put to death? Or what about sociopaths who run investment banks, hedge funds, governments, large churches, or other organizations which they manipulate in an insidious way for personal gain? What happens to them when they willfully take actions that visit death and destruction upon others?
I don't know if anyone's still reading . . . but as I think about Osler's comment on John 8, and look way back in my life, I suppose hearing that Bible story, and Jesus' action, was also formative in my thoughts about capital punishment. Sunday school was definitely the first time I'd encountered any mention of capital punishment.
The argument from Jesus' encounter with the woman taken in adultery is weakened by ambiguity and by his own experience and encounters on the cross.

In the case of the woman, that he showed mercy in a particular case may mean nothing more than that he showed mercy in a particular case. After all, the "crime" was adultery, not murder.

The crimes of the malefactors crucified with Jesus are not known or knowable to us. What Jesus knew of them is not disclosed in the writings. But, that he did not intervene and stop their executions, or at least protest them, is telling. (That he did not protest his own execution and did nothing to stop it is also telling.)

I have been a civil lawyer for 50 years, my daughter a prosecutor for 21 years.

During her tenure she has sought and obtained the death penalty on a number of occasions. One case will suffice to make my point.

A fellow lay in ambush with others and killed a deputy sheriff. He was sentenced to 21 years, served 11 before he was paroled, and within 3 months of his discharge from prison conspired with two others to rob a bank and kill the bank employees. After executing two twenty something female bank tellers and setting fire to the bank and to their bodies, the killers fled. They were shortly apprehended after running into a train in the stolen vehicle they had procured for "the job."

Trial resulted in death sentences for all three. Not many months after the leader had been confined pending the mandatory appeal, the warden intercepted a letter in which the leader sought to put a "contract" on my daughter. Stupid fellow that he is, he addressed this bid in a letter to a family member, which, of course, the warden intercepted when he tried to mail it.

Does anyone think Jesus would say to this malefactor, "Your sins are forgiven. Go, and sin no more?" The former perhaps/surely (depending upon repentance, I suppose), but intervene in or protest his execution?

Why and to what end? That he might have opportunity to make another try at the prosecutor, my daughter?

I think not. But, I have no adequate response to Cromwell's famous question, "Think ye not ye may be wrong?" (or words to that effect.)

I do not pretend to know what Jesus would do. I have little doubt, however, about what I would do.
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