DEATH PENALTY REDUX

How we treat the most despised in an index of our collective moral character.

“The degree of civilization in a society can be judged by entering its prisons.” - Dostoevsky

The death penalty has returned to the news. It was perhaps surprising, and a source of anguish for families who lost loved ones, that the gunman who massacred 17 people four years ago at Parkland High School in Florida was spared execution. Many argue that if we have a death penalty it should be applied to pre-meditated, depraved, atrocities such as this. The high profile nature of the event, within the context of a plague of mass shootings, elevated public interest in the sentencing phase.

Five days before he left office, Trump oversaw his thirteenth execution of federal prisoners. There had been a 17 year hiatus in the federal executions, and the Trump administration has executed more prisoners than any of his predecessors in 120 years. For a man who has celebrated torture as a political rallying point, sending people to their death should by no means be a moral problem. But throughout Donald Trump's career within and outside of politics, morality has been an alien concept.

Capital punishment may not seem to be an issue of widespread importance. Its endurance or abolition does not notably effect the economy and the number of people touched by it is significant, but not huge. However, it is by no means a niche issue. While all policies bear ethical consequences, the death penalty is one of a few in which its moral character is primary. Like torture and its employment, capital punishment is paradigmatically a moral issue. Commensurate with Dostoevsky's correlation between the state of its prisons and the level of civilization, the death penalty, likewise, is a barometer measuring the moral character of American society or any society. My own conclusion is absolute and severe: We cannot claim to be a fully civilized society as long as government, in our names, arrogates to itself the power to kill its own citizens. And we need consider in these politically unstable times that any government that wields the power to take human lives can feel confident in suppressing any lesser rights. Capital punishment has been a commonplace tool of fascistic and tyrannical regimes.

I have been opposed to the death penalty since I was a child and my position has never wavered. I owe my opposition to capital punishment to my mother. My mother died when I was twelve. She was a demonstrably ethical person, and I believe her ethical values were a powerful influence in shaping my own. It is a gift she left me for which I have remained forever grateful.

In the year before she died I recall her telling me that the State of California was about to perpetrate a great moral wrong. After multiple appeals, and an unprecedented stay on death row, California was poised to execute Caryl Chessman, sentenced to death for a non-lethal kidnapping, which at the time of its commission was a capital crime. While in prison, Chessman became a best-selling author, and his case generated international fervor against capital punishment. Notables such as Aldous Huxley, Robert Frost, Billy Graham and former first lady, Eleanor Roosevelt, appealed on his behalf. Chessman was finally executed in California's gas chamber in May of 1960, but his case spurred the repeal of California's death penalty and aided in ushering in a period of decline in the death penalty's employment nationwide.

Working against the death penalty had become a mainstay of my activism. I served in the late 1970s as the chairman of Amnesty International USA's committee against the death penalty. Shortly thereafter, I become the head of a statewide coalition against capital punishment in New Jersey. Despite my efforts to prevent it from becoming law, New Jersey adopted the death penalty under my watch. Twenty-six years later, I aided in the abolition of that law, while serving as an adviser to an abolitionist organization, New Jerseyans For a Death Penalty Alternative. My work included the usual networking, setting up hearings before the legislature, public speaking and writing, including an Op-Editorial in the New York Times.

There are perhaps eight significant reasons that speak against the death penalty. It is racist in who is sentenced to death, but also in the disproportionate number of Blacks sentenced to death when the victim of murder is white. The racial, and therefore arbitrary, nature of who is condemned to death, making capital punishment's application grossly unfair led the Supreme Court to strike down all existing death penalties in the 1972 Furman v. Georgia case. Moreover, capital punishment is inordinately expensive and diverts resources from prosecuting other crimes. Despite claims of its advocates, it has no proven deterrent effect. And not least, there is always the chance that the innocent will be executed. With the emergence of DNA evidence, and the overturning of the capital convictions of more that 180 death row prisoners since 1973, this concern is far from idle.

But for me the most compelling argument in opposition to the death penalty is its immorality. We are all endowed with fundamental rights and the right to life is the most valued and precious. The arbitrary killing of another human being is universally condemned. But the willful, intentional taking of a human life escalates the violation to a unique category.

The protection of rights is commensurate with the preservation of agency. And agency, autonomy, freedom, empowerment, dignity and humanity are correlative terms. Strapping a person to a gurney, rendering him powerless, and making him dead is the ultimate violation of one's autonomy and humanity. With the death penalty, as with torture, the state elevates its own power to infinity and reduces the autonomy and power of the human being who is the object of execution to zero. It is the ultimate ethical violation.

I have long believed that respect conferred to the indwelling humanity of others and ourselves is our primary ethical value. In this commitment, I take my inspiration from the ethical reasoning of Immanuel Kant, arguably the greatest philosophical luminary of the Enlightenment. In his Prologue to the Metaphysics of Morals, Kant proclaims that we need to treat the humanity of others and ourselves as an end in itself and not merely as a means. He argues that humanity derives from our autonomy, our inner capacity as free beings.

Oddly enough, Kant defends capital punishment. In an often noted passage from his Critique of Judgment, Kant provides the following illustration:

“Even if a civil society were to be dissolved by the consent of all its members (e.g., if a people inhabiting an island decided to separate and disperse throughout the world), the last murderer remaining in the prison would first have to be executed, so that each has done to him what his deeds deserve and blood guilt does not cling to the people for not having insisted upon this punishment; for otherwise the people can be regarded as collaborators in this public violation.”

In Kant's view, it is pure justice, and not any utilitarian standard that must be the criterion as to the priority of the employment of the death penalty. In short, Kant was a strict proponent of the lex talionis, the law of retaliation, “an eye for an eye.” In Kant's ethics the punishment must be proportionate to the crime, and for murder, only the execution of the murderer can meet that standard. It fact, according to Kant, it is ethically required.

For Kant, the preservation of morality predominates over the preservation of life. And given that morality emanates from man as a rational agent, Kant concludes that anyone who has committed the ultimate crime would rationally will his own execution as the only fitting punishment. With the death penalty, morality, reason and the dignity of the condemned in preserved.

Some version of this argument is the one often employed by those who defend capital punishment, and I must admit that it is not without moral weight. There is a place in society for retributive justice. We who strive to be lawful play by the rules, and in so doing we give something up. When others exempt themselves from the moral rules that the rest of us obey, it can be argued that they need to give something up. Justice requires that it come in the form of punishment as long as the punishment is fairly administered and proportionate to the crime. By this line of reasoning it can be argued that those who who willfully take the life of another human being morally deserve to forfeit their own.

But I would argue that even if those who take another life deserve to forfeit their own, it is not a contradiction to conclude that we still ought not to kill them. Despite Kant's meticulous rationalism, I conclude that he nevertheless violates his own supreme moral precept. The death penalty remains an act of premeditated murder that destroys the life, and thereby by Kant's own prevailing value, the humanity of the person so executed as a moral agent. Nor arguably does capital punishment meet Kant's standard of proportionality.

Perhaps in response to Kant's search for perfect justice, Albert Camus, a strident foe of capital punishment, wrote the following:

“But what is capital punishment if not the most premeditated of murders, to which no criminal act, no matter how calculated, can be compared?  If there were to be a real equivalence, the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months.  It is not in private life that one meets such monsters.” 

Kant's ethics caused him to say, ““the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it.” His is a high minded abstraction that does not exist in the real world. One need only ponder the racism, classicism, the unfairness that attaches to who is selected to be condemned to death, the chaotic horrors of maximum security prisons, and the gross imperfections in our justice system, wherein significant number of those found guilty have later been discovered to have been innocent of the crimes for which they were convicted.

It is often said that we need to retain the death penalty in order to provide “closure” to the families of murder victims. Such has often been the public stance of many politicians to demonstrate that they are “tough on crime.” In this regard, I was not surprised that many, but not all, families of those murdered in the Parkland High School massacre were distressed that the life of the young man who had committed that most abominable crime was spared. They have my sincere sympathy. Murder is a horrible violation that not only destroys the life of those who are murdered, but it destroys entire families with anguish that that will be with them until their last days.

But, I am skeptical of the concept of “closure.” It is has popular cache, but I believe is an elusive concept with rhetorical appeal that falls short of its promise. It is also not universally sought. The coalition with which worked that helped overturn New Jersey's death penalty in 2007, was headed by an elderly gentleman who was the father of a murdered daughter, and who opposed capital punishment. His strategy was to locate more than thirty families who had lost a loved one to murder, who were, nevertheless, opposed to capital punishment. They did not want to compound the killing they had endured with a second killing perpetrated by the state. They were willing to meet with state legislators, and their personal views were influential in transforming the views of lawmakers from a retentionist position on capital punishment to a commitment to abolish it.

The United States is an outlier in its retention of the death penalty. With the exceptions and Belarus and Japan, we remain the only Western industrialized nation that retains capital punishment.

For those who have sought the abolition of capital punishment, however, there are substantial reasons for optimism. When polled, slightly more than 50 per cent of Americans state that they favor the death penalty for the crime of murder. But the answers received on polls are often dependent on how questions are posed. When Americans are asked whether they would prefer to see life in imprisonment rather than the death penalty for serious crimes, support for the latter drops to well below half.

Twenty-three states have now abolished capital punishment, and others have lengthy moratoriums on its use. Executions have been declining and death rows have been shrinking as those condemned have been resentenced. The number of death sentences imposed as well as executions have fallen, indeed dramatically so in the past decade, and almost ninety percent since their height in the mid-1990s.

I conclude that the introduction of DNA evidence is a major cause in the death penalty's decline. It has has proven that false convictions have been all too common and even fervent advocates of capital punishment would not want to have it imposed on the innocent. In addition, calls for the death penalty tend to rise and fall with the crime rates, and we have experienced a dramatic decrease in serious crime since the 1980s. We are in a period however in which crime is again rising, creating much political noise. We need to hope that politicians do not invoke the false solution of capital punishment to exploit public fears and win support.

Capital punishment is an atavistic and cruel institution that is a moral blight on society. We would do better without it. The winds are generally moving in the direction of its abolition. I predict that the death penalty, like slavery in America, in time will be relegated to history. Perhaps not in my lifetime, but in that of my children. And that will be a good thing. Its total abolition will be a shining light of our national moral character at a time when our collective ethical skies have darkened.