Capital Punishment and the Social Contract

Avatar

Mike Dwyer

Mike Dwyer is a former writer and contributor at Ordinary Times.

Related Post Roulette

116 Responses

  1. Avatar Saul DeGraw says:

    Now comes time to quote Justice Blackmun:

    “From this day forward, I no longer will tinker with the machinery of
    death. For more than 20 years I have endeavored — indeed, I have
    struggled, along with a majority of this Court — to develop procedural
    and substantive rules that would lend more than the mere appearance of
    fairness to the death penalty endeavor… Rather than continue to coddle
    the Court’s delusion that the desired level of fairness has been
    achieved and the need for regulation eviscerated, I feel morally and
    intellectually obligated simply to concede that the death penalty
    experiment has failed. It is virtually self-evident to me now that no
    combination of procedural rules or substantive regulations ever can save
    the death penalty from its inherent constitutional deficiencies. The
    basic question — does the system accurately and consistently determine
    which defendents `deserve’ to die? — cannot be answered in the
    affirmative… The problem is that the inevitability of factual, legal,
    and moral error gives us a system that we know must wrongly kill some
    defendants, a system that fails to deliver the fair, consistent and
    reliable sentences of death required by the Constitution.”

    Justices Brennan and Marshall were famous for their opposition to the death penalty and always wrote against it and stated their opposition publicly. Justice Ginsberg has said in interviews that she thinks this hard-line no took them out the debate and made them less effective in influencing jurisprudence on the death penalty.

    There seems to be a stark divide on the death penalty. States are either abandoning it or placing moratoriums on the death penalty. In the past few years New Jersey, New York, New Mexico, Illinois, Connecticut, and Maryland have abolished the death penalty. Washington State’s governor declared a moratorium earlier this year and I suspect abolition will happen in the next few years. Other states have become nearly Levitican in their belief in the death penalty.

    I suspect Brandon Berg is right and the botched Oklahoma execution will not deter or cause the fiercest proponents of the death penalty to pause. They might think that more executions should be like the botched one.Report

    • Avatar dand in reply to Saul DeGraw says:

      the politics of the death penalty have changedin the past 20; most of those states restarted the death penalty in the 80s or early 90s when crime was much higher than it is today. i’m skeptical that they won’t restore the death penalty again next time crime spikes.Report

      • Avatar Jaybird in reply to dand says:

        Not that majorities should choose policy or anything but does the death penalty still poll well in the states that abandoned it? Did it ever stop polling well (let’s define that as a simple majority) in the states that abandoned it?Report

  2. Avatar Murali says:

    What I wonder is why they didn’t fall back on relatively painless alternatives like the long drop when they ran out of chemicals. Or for that matter, why didn’t they just OD the guy on general anaesthetics? Given that it is relatively easy to lose a patient in the OT when they overdose on GA, it should be trivial to obtain GA at amounts which could kill a patient.Report

    • Avatar dhex in reply to Murali says:

      “Or for that matter, why didn’t they just OD the guy on general anaesthetics? ”

      perhaps, har har, they feared a murder rap.Report

    • Avatar Burt Likko in reply to Murali says:

      The three-drug cocktail used in Oklahoma was an attempt to do more or less this.

      From the brief stint of my career doing medical malpractice cases, it appeared to me that death-by-GA might be more complex than it seems. Too much dose can cause rejection of the substance. I’m not a doctor, of course, and most doctors, even anasthesiologists, recoil from dabbling in the poisoner’s art.Report

      • More than that, an anesthesiologist can be sanctioned by the profession for participating in an execution.

        A national physicians organization has quietly decided to revoke the certification of any member who participates in executing a prisoner by lethal injection.

        The mandate from the American Board of Anesthesiologists reflects its leaders’ belief that “we are healers, not executioners,” board secretary Mark A. Rockoff said. Although the American Medical Association has long opposed doctor involvement, the anesthesiologists’ group is the first to say it will harshly penalize a health-care worker for abetting lethal injections. The loss of certification would prevent an anesthesiologist from working in most hospitals….

        http://www.washingtonpost.com/wp-dyn/content/article/2010/05/01/AR2010050103190.htmlReport

    • Avatar Alan Scott in reply to Murali says:

      Because those former methods make more evident the bloodlust that drives us to execute prisoners in the first place. With a complicated combination of drugs that nobody understands and that doesn’t leave the victim visibly suffering, we can still lie to ourselves about the moral acceptability of our actions.Report

    • Avatar Michael Cain in reply to Murali says:

      In Oklahoma — site of the latest botch — current statute requires lethal injection. If LI is ruled unconstitutional (or otherwise outlawed at the federal level), then electrocution can be used. If both LI and electrocution are outlawed, then a firing squad can be used. To allow hanging would require a change in statute, which would undoubtedly mean a very public debate on the death penalty as a whole. That’s a debate that a number of legislators probably don’t want to have, since one of the implications of adding yet another method is that the existing methods aren’t guaranteed to be quick and painless.

      GA use may be problematic, depending on statutory or regulatory requirements on who may administer such drugs legally. The American Board of Anesthesiology’s official position is that members who participate in executions are subject to discipline, possibly including loss of their board certification. That has created a real problem in Missouri, where the courts have held that a certified anesthesiologist must be involved in the executions.

      Nitrogen is the most dangerous industrial gas in the US, with an average of about eight people per year dying from asphyxiation because they don’t even notice that it’s happening until it’s too late. IT workers used to die because they stuck their head down into Halon that had leaked from fire suppression systems and pooled under a raised floor because they passed out and then suffocated without ever noticing that it was happening. YouTube has videos of teenagers causing themselves to pass out — with no pain — by sucking enough helium from ballons. We know how to do the job, but so far no state has been willing to be the first to adopt it.

      For the record, I oppose the death penalty.Report

      • Avatar Glyph in reply to Michael Cain says:

        Forget nitrogen, what’s wrong with opiate overdose? Kinda by definition, we’d be making sure there was no pain, no? It’s not like we don’t know how to administer a massive overdose of painkillers. Is it the fact that it would not just be painless for the executed, but possibly downright pleasant?

        (I oppose death penalty as well.)Report

      • @glyph
        Part of my motivation is that if we’re going to have a death penalty, I want the means of execution to be such that we can also require the prosecutor that asks for it to “do the deed” — no more life-taking by proxy. I suppose there’s a way to administer the opiates that doesn’t require any trained personnel. I know that inert-gas asphyxiation can be set up so that no trained personnel (other than the doctor who signs the death certificate) need be involved.Report

      • Avatar KatherineMW in reply to Michael Cain says:

        Part of my motivation is that if we’re going to have a death penalty, I want the means of execution to be such that we can also require the prosecutor that asks for it to “do the deed” — no more life-taking by proxy.

        So, just go full Eddard Stark and bring back swords?Report

  3. Avatar Burt Likko says:

    Like the OP, I’ll demur on the question of whether the state should be in the business of killing people in the first place. (Mainly because I’m wobbling on it now.)

    But if we are going to do it — and in a lot of jurisdictions, the voters say they want it and contra Justice Blackmun, the Constitution does permit it — then the brutality of their crimes is utterly irrelevant. “They are not our teachers.”Report

  4. NobAkimoto NobAkimoto says:

    I think we need to wonder if there’s a general trend of sadism toward certain types of people in certain political movements. Sarah Palin’s recent comments regarding waterboarding as “baptism for terrorists” seems to echo a general desire to inflict pain and harm on certain others, and isn’t an isolated sentiment.Report

  5. Avatar LeeEsq says:

    Without getting into the morality of the death penalty itself, the electric chair and lethal injections are not the most humane and fastest ways to kill a person. They are illusions designed to look like humane ways to kill or murder a person and make the supporters of capital punishment feel better about themselves. The number of botched executions involving both methods and the fact that states keep changing the lethal injection formula leads to a number of substantial doubts about the humanity of both methods. The most humane ways to kill a person are the old-fashioned ways of the guillotine and hanging. We don’t use them anymore because they are very gruesome and leave no illusions.Report

    • Avatar DavidTC in reply to LeeEsq says:

      The most humane ways to kill a person are the old-fashioned ways of the guillotine and hanging. We don’t use them anymore because they are very gruesome and leave no illusions.

      Indeed. While hangings *can* screw up, there’s basically no way to botch the guillotine, at least not if you test it right before using it.

      And while there’s an interesting question of exactly how many seconds someone can remain *conscious* after beheading, there’s no logical reason they’d be in any pain whatsoever. We can’t ask the beheaded people, but we know severing other parts of the body with a razor sharp cut does not hurt immediately. (As long as we catch the head, I guess, and don’t let it thud to the floor, which they could theoretically experience.)

      So we have a completely 100% efficient, full-proof, and humane method of killing people. As instantaneous as death can possibly be, no pain, completely unable to leave them in some sort of injured-but-living state, requires no medical personal or drugs that companies won’t supply anymore, etc, etc.

      And we don’t use it, as you say, because it looks too gruesome and we’d like to retain our illusions.

      I think it would be interesting for someone on death row to sue to be executed in that manner.Report

      • Avatar Murali in reply to DavidTC says:

        The failure to find more humane ways of killing those who need to be killed even after 10 000 years of practice of finding different ways to kill one another reveals a deep failure of imagination and more than a little incompetence.Report

      • Avatar Saul DeGraw in reply to DavidTC says:

        @davidtc @leeesq

        I agree with both of you and it is really interesting that we use lethal injection because it is so aesthetic from the viewpoint of everyone but the person being executed. It makes them look like they are just going to sleep which is the same euphemism we use when we euthanize beloved pets. Lethal Injection is done for the sake of the witnesses, executioners, and prison staff.Report

      • Avatar DavidTC in reply to DavidTC says:

        @murali
        The failure to find more humane ways of killing those who need to be killed even after 10 000 years of practice of finding different ways to kill one another reveals a deep failure of imagination and more than a little incompetence.

        I’m entirely serious when I assert that a properly-operated guillotine *is* the most humane way of dying. I’m not trying to make some sort of joke there. The only better method would be some sort of disintegration ray aimed at the head.

        We’re talking about no pain at all (I’m not kidding, you sever things cleanly enough, and there’s no pain. We know this is how it works for every body part besides the head, so presumably that’s how it works for the head.), and literally less than ten seconds from start to end of the process.

        Hell, the *needle* for a lethal injection is more painful than a guillotine, much less having to lie there for a minute and *hoping* you slip into unconsciousness before the next phase starts, as *didn’t* happen with this poor guy.

        @saul-degraw
        I agree with both of you and it is really interesting that we use lethal injection because it is so aesthetic from the viewpoint of everyone but the person being executed.

        We’ve deliberately spent a lot of time and effort not only making it aesthetic, but as far removed as possible. We don’t hook up a normal IV, like we would for anyone getting any other kind of medication. No, we hook them up to a complicated machine with a single button, and then all we have to do is…push a button.

        We have devices that are *hundreds* of years old that kill cleaner and faster and less painfully. (1) Instead, we get a Rube Goldburg of a killing, because we do not want to admit that’s what we’re doing.

        1) And if we actually updated guillotines, they’d be even be objectively better. No reason not to offer, for example, some sort of lidocaine neck-wrapping beforehand, just in case there *is* some sort of pain possibly. Or let them take sleeping pills if they want and not be awake. We could even move the blade faster than gravity.Report

      • Avatar Jaybird in reply to DavidTC says:

        I’m down with the argument that our death penalty, assuming the death penalty, shouldn’t require hazmat cleanup.Report

      • Avatar Murali in reply to DavidTC says:

        I’m agreeing with you here. I’m not talking about lack of imagination of humanity in general, but those particular prosecutors who when faced with a lack of medicines went about trying to get some kind of botched lethal injection rather than using a guillotine or a long drop.Report

      • Avatar veronica dire in reply to DavidTC says:

        You folks are missing an amazingly obvious point.

        The other night I removed an ingrown toenail myself, since it was bugging me. It hurt a lot, but I butched up and got through it.

        Pain sucks. Long, sustained pain can be intolerable. But brief bouts of pain, even fairly strong pain — it’s just a thing and we all experience it.

        Compare this to the horror that you are going to die, that the state is going to kill you, and that you have no hope. I don’t care how fast the guillotine is; they still must lead you to the room.

        This focus on the physical pain seems misdirected.Report

      • Avatar DavidTC in reply to DavidTC says:

        @veronica-dire
        Compare this to the horror that you are going to die, that the state is going to kill you, and that you have no hope. I don’t care how fast the guillotine is; they still must lead you to the room.

        Oh, I’m not, in any way, saying we should have the death penalty. It makes absolutely no sense at all on any possible grounds. It’s hard to think of even *hypothetical* grounds in which it makes sense…what, is the Joker going to break of jail again?(1)

        I’m just pointing out our hypocritical bullshit within that. That we insist on using long, drawn-out, error-prone, complicated methods of killing people, when there is a method that is better by *every* objective grounds, but we don’t want to use it because it looks bad. Aka, it makes us aware we’re *actually killing people*.

        1) Hell, I’m actually opposed to *prisons*. We have the technology now that we could simply build a little town somewhere out of the way, give everyone ankle trackers and put up cameras, and let 90% of prisoners basically go about a normal-ish life *while* keeping them from harming others. (And that’s the maybe 25% of people that should actually be in jail that are currently there.) You should only get locked in a cell if you demonstrate you can’t be trusted to be around anyone, even with monitoring.Report

      • Avatar Glyph in reply to DavidTC says:

        “1) Hell, I’m actually opposed to *prisons*. We have the technology now that we could simply build a little town somewhere out of the way, give everyone ankle trackers and put up cameras, and let 90% of prisoners basically go about a normal-ish life *while* keeping them from harming others.”

        I was talking to someone the other day, wondering if that’s how we’ll finally colonize Mars. It’s a long and dangerous one-way trip, and a hardscrabble life when you finally get there; but so was Australia, and that worked out pretty well for everyone in the long run (unless you were an Aborigine, but that was the case everywhere Europeans showed up, and in any case is a non-issue on Mars).Report

  6. Avatar Damon says:

    I’m no fan of the death penalty. Frankly, I’m too suspicious of the “justice” system to agree to permit the state to kill any more people. Too much DA misbehavior, testilying by cops, etc. for me ever to consider this again with out major reforms.

    Mike, I’ll take issue with what you said here: “What I also know though is that we are a society built on agreements between the government and the people and one of those agreements is that if the government decides to kill you for a crime you committed, they pledge not to torture you in the process.” This is utter BS. The gov’t has already decided it can abduct you, imprison you, “convict” you with secret information and execute you. You just need to be a “terrorist”.

    Now, back to the death penalty. If the process ever got reliable enough, I’d support a simple process. Blindfolks and a round to the head. Bit messy, but I can assure you that it’s quite effective.Report

    • Avatar Jonathan McLeod in reply to Damon says:

      “Blindfolks and a round to the head. Bit messy, but I can assure you that it’s quite effective.”

      This can come off pretty creepy, depending how we read it.Report

      • Avatar Damon in reply to Jonathan McLeod says:

        Excellent typo on my part 🙂Report

      • Avatar Mike Dwyer in reply to Jonathan McLeod says:

        Jonathon,

        It is creepy, however while doing a little research for the post last night I went down a twisted rabbit hole of watching live executions on YouTube. There was a long video of WWII executions by firing squad and it looked like the prisoners died almost instantly. The same would be true if we used something like a captive bolt pistol (currently used for cattle). But that feels a little too much like murder to most people.Report

      • Fair enough, Mike. I was just having some fun with Damon as he seemed to be saying he had a lot of experience with this type of execution.

        I agree, Damon. That’s a solid typo. We should just make it a word.Report

      • Avatar Kazzy in reply to Jonathan McLeod says:

        Freshmen year of college, I met a girl from Minnesota. Her dad was involved in some aspect of the cattle-raising-slaughtering-butchering process such that he used a captive bolt pistol. I remember being appalled. Not so much in a, “He’s an awful man,” way but more in a, “I can’t believe that’s how it is actually done,” way. As we discussed it further, there was a clear urban/rural divide in how people responded, largely based on our familiarity and proximity to the process.

        I’d venture to guess more people would fall on my side of the “That’s crazy!” line. Not because we are morally superior or even right; just because more people are probably isolated from the practice. Add in the fact that we’re talking about humans and not cattle, and I could never see the method catching on… even if it is a more humane option.Report

      • Avatar Mike Schilling in reply to Jonathan McLeod says:

        Did he look like Javier Bardem?Report

      • Avatar Mike Dwyer in reply to Jonathan McLeod says:

        There is a lot of logic to the notion that executions should be painful and dramatic to better serve as a deterrent. We’ve gone the clinical route. I also saw last night that some Middle Eastern countries that practice Sharia law are now having hands removed for stealing, not via the slice of a sword but in government-ordered a medical amputation done by doctors. So even they are trying to make things look less barbaric.Report

      • Sorry, @kazzy , this is all I heard when reading your comment.

        Report

      • Avatar Kazzy in reply to Jonathan McLeod says:

        @jonathan-mcleod
        Did you mean to include a link or something?Report

      • Avatar zic in reply to Jonathan McLeod says:

        @kazzy

        I grew up farming and amongst hunters (I was a hunter, myself).

        It continually stuns me how most people abstract dying; and how we try to separate ourselves, humans, from other living things. We put it at arms length; you’ll never see a picture of a living animal on a package of meat in the grocery store (with the possible exception of fish).

        As humans who feel empathy, there’s this abstract notion death should not be pain filled. But death often is. It’s not easy to die. And it’s the one thing we all have to do. The fear of death drives us to religions where we don’t really die, we don’t end, we go on in a new life or afterlife.

        The only comfort I can find in all this is the awareness that I have to make the quality of living things better if I can; and that it’s part of my responsibility to pay it forward, to think of the other living things and their lives in some future I will not be here to see. Because it’s the living that matters. I believe that it’s so much wrong to take life as it’s wrong to do so disrespectfully. (I am not condoning murder, here.)

        So I think we put too much emphasis on birth and death, and not enough on what happens in between. I’d be happy to see the death penalty abolished; I can’t see that it does any good, and there’s too much room for error and a total lack of examining the other living stuff (going all mental health on you) for the person we’re intending to kill.

        When you slaughter or hunt an animal, if you are a respectful person, you do your level best to kill it quickly and cleanly. You understand you’re inflicting pain.
        So you’re point about your friend hits home for me; it brings a different perspective to how we discuss things like the death penalty; it’s barbaric not because it seeks to end life, but it’s lacking in elements of respect — it’s the ultimate act of disrespecting in an attempt to punish.

        It’s a difficult thing to talk about with most people; we civilized and rational humans want to think we’re far off from nature red of tooth and claw. It’s that respect of life that gets us there. But respect doesn’t always equate to not taking a life, and that’s discomforting, death is for all living things.Report

      • Avatar Kazzy in reply to Jonathan McLeod says:

        @zic

        Your point about packaging and abstracting food is an interesting one. Just the other day, one of my kids said, “There are two kids of turkeys: the kind you eat and the bird.” I didn’t that particular time (just because of what was going on in the moment), but I usually try to make a connection for them. “The chicken that we eat comes from the animal.” Etc. I try to offer it neutrally but it is very strange how we tend to think about it, especially in America. I understand other countries are not as… prudish?… as we are.Report

      • Avatar Kim in reply to Jonathan McLeod says:

        zic,
        people don’t like to think about babies dying. Small fuzzy beasties (or even large ones like cattle or swine) remind people that they might die the same way.

        I think folks could stand more remindin’ of what might be comin’ for ’em, personally. Folks are all too willin’ to run away from death, rather than stare it in the face.

        I’m no hunter, I wouldn’t kill ‘cept if I needed it, and I don’t. But I tell myself that I’d put a bolt in a cow’s head without flinching, if need be.Report

      • Avatar zic in reply to Jonathan McLeod says:

        @kim

        Small fuzzie beasties — baby animals, and not necessarily mammals — invoke some impulse in humans to protect the young. There’s a reason cats and dogs are more adorable when they’re kittens and puppies.Report

      • @kazzy Yes, but I guess the video didn’t embed. The moment is lost now.Report

  7. Avatar Kolohe says:

    Oklahoma should just use drones.Report

  8. Avatar Kazzy says:

    “Many people would also say that painful and public executions would be much more of a deterrent than a current system that keeps people on death row for years and then puts them to sleep before they end their life.”

    Is there any evidence that this is actually true?Report

    • Avatar Barry in reply to Kazzy says:

      Albert Pierrepoint had some comments about the deterrent effect of executions. TL;dr – most murders are either spur of the moment, or done by people who aren’t thinking worth anything.Report

    • Avatar Saul DeGraw in reply to Kazzy says:

      The death penalty as a deterrent is kind of hard to prove but I generally agree with the evidence that Barry cited.

      There was a story I saw yesterday about how 40 percent of gun violence in New York is committed by gangs with members in the 12-20 range.

      http://www.washingtonpost.com/national/teen-crews-linked-to-40-percent-of-nyc-shootings/2014/05/01/d0e79734-d0f2-11e3-a714-be7e7f142085_story.html

      These are not people thinking rationally.Report

    • Avatar LeeEsq in reply to Kazzy says:

      The real reason why the death penalty used to apply to much wider variety of crimes and why public exeuctions were common was because policing methods were primitive. For a lot of human history, if you committed a crime you had a relatively high chance of getting away with it. Strict punishments were seen as necessary in order to convince more people to obey the law.Report

      • Avatar Glyph in reply to LeeEsq says:

        Assuming arguendo that this is true, it points up another uncomfortable irony. As we reach a point where our every act and word is recorded, so that theoretically at least no one ever need get away with anything, sure, we are all living in a fishbowl with no privacy. But at least we could make punishments more lenient (IIRC deterrence is often best achieved by swift/certain punishment, rather than harsh).

        So if I kill someone, they immediately nab me, convict me, sentence me, and put me away; but I’m still home by Christmas.

        [starts making list of people I have to kill]Report

      • Avatar Chris in reply to LeeEsq says:

        [Installs new home security system.]Report

      • Avatar Saul DeGraw in reply to LeeEsq says:

        @glyph

        In the Rise of Victorian Values: Decency and Dissent in Britain, the author talks about the debates surrounding the creation of a professional and permanent police force. Some of the objections (including from leading Parliament Members) was that a permanent police force would infringe on the people’s liberty.

        There is also the fact that incarceration is fairly new as a punishment, at least in the modern sense and comes from the early 1800s. Pennsylvania established the first modern prisons while Connecticut was still throwing prisoners into old copper mines.Report

      • Avatar DavidTC in reply to LeeEsq says:

        @glyph
        As we reach a point where our every act and word is recorded, so that theoretically at least no one ever need get away with anything, sure, we are all living in a fishbowl with no privacy. But at least we could make punishments more lenient (IIRC deterrence is often best achieved by swift/certain punishment, rather than harsh).

        I once read a sci-fi story once where we had invented the ‘see back to any point in time’ technology, so absolutely no one could get away with any crime.

        As a result, people started committing all sorts of little petty crimes out of, apparently, spite. Or basic rebellion. Sorta ‘I spit in the face of the law’. Vandalization of public property, public nudity, jaywalking, etc.

        I forget how it goes, but I think they eventually end up legalizing a lot of stuff, or maybe just giving it a fine, especially as a lot of the *purpose* behind crime was gone. E.g., if you can’t *get away* with theft, and have to give the money back immediately plus 10%, there’s absolutely no point in stealing. And it’s literally impossible to kidnap anyone, because the second they realize someone is missing, they can just find where they were last, and track forward. Etc, etc.

        I’ve actually forgotten the plot of the story, though.Report

    • Avatar DavidTC in reply to Kazzy says:

      Is there any evidence that this is actually true?

      No.

      There *might* be a few murders that are deterred by the punishment, but those are all premeditated and long-planned murders, usually for profit. Killing someone for their inheritance, via poison, or whatever. In other words, exactly the sort of murders that *don’t* get the death penalty.

      The types of murders that get the death penalty tend to be the ‘brutal ones’, done out of sheer lust for violence or by strung-out druggies or by serial killers. None of whom are operating by ‘logic’, or get deterred by anything.

      And now that I’ve said that, I’m not sure how many of the *first* type of murders are deterred by anything, either. People do not actually make decisions by weighing hypothetical consequences against odds of reaching that result. We all like to imagine that’s how it works, but it’s *not*. People are *really* *really* bad at weighing odds and making the ‘best’ choice for themselves.

      A person, in their head, only has the vaguest idea of how likely they are to be caught, and on top of that only the vaguest idea of how much punishment they’d get, and *even if they knew those things exactly*, still would not make decisions as if those numbers meant anything. People are irrational idiots.

      Tomorrow, we could make every single murder result in the death penalty, or make every single murder only half the time in prison, and the total amount of murders would probably only move by 5% in one direction or the other.Report

  9. Avatar Stillwater says:

    I’ve wondered about taking the decision to kill criminals (is that what we kill them for, their “criminality”?) out of gummints hands and giving it over to those most directly effected by the capital crime. Judges and juries could still hand out the death penalty as a sentence under this model, but the final decision to actually execute resides in an individual who must engage the moral calculus in a direct and intensely personal way. Their decision carries the burden, one they would have to live with for the rest of their life, of having been causally sufficient for ending the life of another. I mean, if we – as a society – comprised of individuals – individuals who believe that capital retribution is justified – then the individuals who believe such things ought to be perfectly willing to be executioners, right?

    By the same token, I’ve wondered whether the system of capital punishment we currently have wouldn’t be improved by altering the process slightly: instead of governors having the power to commute death sentences those same governors were instead required to approve executions which wouldn’t happen without their active consent.Report

    • Avatar zic in reply to Stillwater says:

      By the same token, I’ve wondered whether the system of capital punishment we currently have wouldn’t be improved by altering the process slightly: instead of governors having the power to commute death sentences those same governors were instead required to approve executions which wouldn’t happen without their active consent.

      I’m of the mind that because a governor hold the right to commute in his or her hands, failing to do so equates to active consent. Not doing anything is also an action, a choice.Report

      • Avatar Stillwater in reply to zic says:

        zic,

        From a moral pov, I more-or-less agree with you. What I’m talking about up there is changing the law so that governors must affirmatively act for an execution to proceed instead of defaulting to “the law” as it’s currently structured.Report

      • Avatar Herb in reply to zic says:

        Reading this reminds me of how, in my state, conservatives flipped out when the governor delayed the execution of a killer scheduled to be killed last August, even though my state has only 3 people on death row and hasn’t executed anyone since Clinton was in office.

        We don’t have much of an execution culture, but you’d never know it from the calls for blood.Report

    • Avatar Saul DeGraw in reply to Stillwater says:

      @stillwater

      I think this is actively unconstitutional and destroys every notion that the justice system is not about vengeance. What would happen is that application of the death penalty would be more about luck.

      I’m afraid I can’t support your idea. It seems like it is likely to lead to all sorts of perverse incentives and circumstances.Report

      • Avatar Stillwater in reply to Saul DeGraw says:

        Saul, when you say perverse incentives, you must mean more perverse than those of the institutional structures we currently have, yes?Report

      • [Sorry, I hit “post comment” too soon.]

        I don’t think we can ever get away completely from the notion that our justice system is not about vengeance. The notion of “paying one’s debt to society” or whatever seems to me reducible to vengeance, unless one is actually going for rehabilitation. But rehabilitation does not seem to be on offer for the more heinous crimes. So then we’re back to punishment for the sake of punishment. Which seems to be very close to, though perhaps not identical to, vengeance.Report

      • Avatar Stillwater in reply to Saul DeGraw says:

        Exactly, GC. Restoring the moral order, an eye for an eye, punition (if that’s not a word it ougta be), whatever – the reason capital punishment persists as an institution is because people want vengeance. It’s an archaic moral model, one that doesn’t conform to any concept of justice that I’m aware of.

        Well, any sound concept of justice.

        The only argument in favor or capital punishment I’m inclined to give credence to is one that isn’t really ever made: that people who are damaged beyond redemption or repair in concert with the barbarity or their crimes deserve to be put down rather than being incarcerated for the rest of their lives. But part of the reason I find that argument compelling resides in a view that incarcerating people for the rest of their natural lives is barbaric itself.

        Sorta. Roughly.Report

      • @stillwater

        I’m sympathetic to much of what you say, but I should underscore that I think imprisonment can in at least some cases, be interpreted as “vengeance,” too.Report

    • Avatar James Hanley in reply to Stillwater says:

      So in the case of a childless married couple, the most affected person is the surviving spouse. So if spouse A kills spouse B, spouse A gets to decide whether to allow execution of him/herself.

      What’s not to like? 😉Report

  10. Avatar Christopher Carr says:

    “The man who passes the sentence should swing the sword. If you would take a man’s life, you owe it to him to look into his eyes and hear his final words. And if you cannot bear to do that, then perhaps the man does not deserve to die.” – George R.R. Martin

    Sanitizing death with the latest technology does not change the fact that we are killing someone. We should never say: “I think he is guilty and that he deserves death, but I’m not 100% sure – I’m 99.9% sure. If I’m wrong, though, at least he won’t suffer on the gurney!”

    If we think we are at a point in our society where the death penalty is still necessary, ownership of it should be of primary concern, and how it is administered should be of very secondary concern. Or we should consider ourselves civilized enough to not have the death penalty at all.Report

  11. Avatar Matty says:

    Jason probably has the details but I seem to recall there was a french philosopher sentenced to the guillotine who decided to test how long his severed head remained conscious by blinking. Apparently it was about ten minutes. If, and I know it’s a big if, I am remembering this right it casts doubt on the idea that execution that looks quick actually is.Report

    • Avatar wardsmith in reply to Matty says:

      Interesting Matty, never heard that but quickly Googled this based on a rewording of your thesis.

      This concept perhaps first appeared during the French Revolution, the very time period in which the guillotine was created. On July 17, 1793, a woman named Charlotte Corday was executed by guillotine for the assassination of Jean-Paul Marat, a radical journalist, politician and revolutionary. Marat was well-liked for his ideas and the mob awaiting the guillotine was eager to see Corday pay. After the blade dropped and Corday’s head fell, one of the executioner’s assistants picked it up and slapped its cheek. According to witnesses, Corday’s eyes turned to look at the man and her face changed to an expression of indignation. Following this incident, people executed by guillotine during the Revolution were asked to blink afterward, and witnesses claim that the blinking occurred for up to 30 seconds.Report

    • Avatar DavidTC in reply to Matty says:

      No. There are accounts like that. But those accounts are idiotic.

      Cutting off the blood flow to the brain, as in a choke-hold, causes unconsciousness in about ten seconds, period. There’s no way anything could be happening after that. And by ‘cutting off’, I mean ‘blocking’…actually having blood *drain* from the brain would cause unconsciousness even faster.

      The actual eyewitness accounts of actual scientists observing beheadings reported somewhere between two to five seconds of blinking, which nicely lines up with what medical science says should be happening.

      And, yes, technically, their brain is ‘alive’ a lot longer than that…but so is basically *everyone* who dies. That’s how brains work. People lose their heartbeat, they pass out from lack of oxygen, and their brain slowly dies.Report

  12. Avatar Sierra Nevada says:

    Even though I usually disgagree with him on most subjects, I lean toward CS Lewis’ thoughts on punishment:

    “…the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question ‘Is it deserved?’ is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice. There is no sense in talking about a ‘just deterrent’ or a ‘just cure’. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds…”

    Lewis goes on to say that success in “curing” a criminal or in “deterring crime” are barbarous because there is no limit to the State’s interest. Hideous and torturous cures can be justified because they “work.” Deterrrence is even more horrible because to satisfy the State’s goal we don’t even need to convict the right person, and the more we make them suffer, the better the deterrent effect is.

    I agree with Lewis about this. Reasoning about just punishments cannot be about deterrence or reform unless it is grounded in Just Deserts.

    The problem I then run into is that the question of capital punishment becomes an almost theological question. In the end I usually throw up my hands and oppose capital punishment on the grounds that our criminal justice system is hideously biased racially and against the poor.Report

    • Avatar Saul DeGraw in reply to Sierra Nevada says:

      I’ve never completely agreed with this argument and I am not quite sure I understand it but it seems to use the conservative version of the state that sees the states as being organic and distinct from the people as a whole which might be the great divide between conservatives/libertarians and liberals. The argument you are making seems to assume that people start lacking any sense of human dignity and decency once they become an employee of the state. This might be true in some circumstances but not all or most. There are examples of wrongful conviction but these are are not out of the police/state saying just arrest someone and jail him, they exist for other reasons of human error.

      The 8th Amendment is not perfectly executed (far from it) but it exists and has been used for great function. Concepts of rehabilitation seem to work very well in Scandanavian countries.

      What should we do then? Return to whipping and branding and amputation? Should we get rid of social workers? Should we just let violence happen?

      I don’t see your argument here as being humane but I do see it as one that is likely to result in a more vengeful social system if brought back. You might as will do everything as trial by ordeal or combat.Report

      • Avatar Murali in reply to Saul DeGraw says:

        @saul-degraw

        I’ve never completely agreed with this argument and I am not quite sure I understand it but it seems to use the conservative version of the state that sees the states as being organic and distinct from the people as a whole which might be the great divide between conservatives/libertarians and liberals.

        I don’t see how it does that. All it does is that it rests on a commonsense or at least what used to be a commonsense intuition that people deserve to receive what they have given to the world. It is a basic intuition about reciprocity and proportionality. The argument @sierra-nevada gives says that deterrence and reform cannot become the primary justification of punishment because under circumstances (that may or may not be counterfactual) deterrence and reform could justify outcomes that we would find unjust at the most visceral level.

        On a separate point though perhaps related point, it is perhaps because you don’t have the intuition about reciprocity and desert that you cannot seem to distinguish between capital punishment which involves a response to a crime of about the same magnitude as the crime (presumably one killing involves, prima facie, the same magnitude of harm as another killing) and chopping a thief’s hand off which involves a much greater and more permanent harm done to the criminal than the harm the criminal did and trial by combat and ordeal, which is a way of deciding cases in which the outcome has little relation to the actual guilt or innocence of the parties.Report

      • Avatar Saul DeGraw in reply to Saul DeGraw says:

        I am very suspicious of what gets labeled common sense and the idea that people deserve to receive what they have given the world. That idea has been used to mistreat Jews for centuries (for the false claim that they killed Christ and because Jews rejected Christ as the Messiah). The same thing has been said for other minorities and still is. There are still people who get caught saying how slavery was good for the world because it gave them civilization.

        So yeah, I am not seeing anything good with the C.S. Lewis statement, it seems to be the height of Calvinist arrogance.Report

      • Avatar Saul DeGraw in reply to Saul DeGraw says:

        @murali

        I know you are going to claim it is different but it seems to me that if you allow a philosophy of “people deserve to receive what they have given the world” and label it common sense, you are creating a system with incentives for coming up with why minority groups deserve the bigotry heaped upon them. People can come up with all sorts of ex-post facto justifications about how X deserved what they received because of action or characteristic Y.Report

      • Avatar Murali in reply to Saul DeGraw says:

        There is a real difficulty in coming up with some concrete account of what people deserve and what are the things they must do or be to deserve that. And it may be that desert talk is heavily misused. However, it seems really difficult to justify things like slavery on the basis of desert. The magnitude of the two things just seems so disproportionate. Note that the desert intuition does a lot of work motivating social contract talk. The reason why social contract talk seems appealing is that people think that society should be a quid pro quo. And the idea that society should be a quid pro quo looks a lot like the idea that people should be treated as they have treated others. Is it not too hard to think that someone like Sterling had it coming to him? Now, when all is said and done, you may want to give up desert talk (maybe because you think that while lots of people find it intuitive, they have no rational basis for doing so) but if you apply that level of scrutiny for desert, you must apply that same scrutiny to the moral concepts you prefer to use. Post Rawls, it seems to have become fashionable among a lefty educated segment to poo-poo concepts like desert, but the same scrutiny that is often applied to desert is rarely ever applied to other concepts those same people use to justify their moral or political beliefs. At the very least the concept of desert must be understandable to you, and not some alien moral concept used by these backward rubes. It is very hard to mount a criticism of the concept of desert that does not implicate all of morality as well.Report

      • Avatar Saul DeGraw in reply to Saul DeGraw says:

        @murali

        Does desert just become a perpetual and unbreakable cycle though?

        http://gawker.com/horrifying-audio-of-man-killing-unarmed-teens-released-1570904656

        The URL says the story. An elderly man in Minnesota is on trial for murder because he killed two teens who broke into his house and killed them with multiple shots. He then recorded a rather nasty tirade that became evidence against him court.

        It seems that the argument you are giving me will say that everyone involved got their deserts if taken to the argument’s logical extreme. The teens got their deserts because they transgressed by burglary and showed no respect for the defendant’s property. The defendant got his deserts by over reacting to a bunch of teenagers on an adolescent prank or whatever and being quite sadistic to them.

        There has to be a better way. The teens deserved some sort of punishment for their burglary but they did not deserve to be murdered brutally.Report

      • Avatar Sierra Nevada in reply to Saul DeGraw says:

        @saul-degraw To begin, the concept of Desert follows simply from the idea that crime exists on a scale of degree that reflects the severity of the damage it does to individuals or society. Murder is worse than shoplifting. Civil society, in working out the common social contract, must arrange the scale of severity according to the moral lights of the societies members. The concept of Desert enters when it comes time to apply sanctions to those crimes.

        As Lewis tells it, prior to deciding on anything else about a sanction (i.e. whether it is reformative, or if it is a deterrent, or if it satisfies victims’ or their families desire for vengeance) we must limit the degree of what we are allowed to do to them by asking ourselves what is the most a criminal deserves for any given crime.

        That answers your reductio ad absurdam as to whipping, branding, and amputation, I think.

        What it doesn’t do, and hence my theological problem, is address the problem of a society which is religiously pluralistic. The “Justice teachings” of different religions vary widely. So a fundamentalist christian state legislator in Oklahoma and a liberal catholic supreme court judge are going to have a very different idea of what a condemned murderer deserves. Their views of what is cruel and unusual is aloso going to vary by the character they assign to their God.

        The problem IMO isn’t the social contract, it is that getting agreement on its basic terms is hard in a religiously pluralistic society.Report

      • Avatar Sierra Nevada in reply to Saul DeGraw says:

        @saul-degraw “There has to be a better way. The teens deserved some sort of punishment for their burglary but they did not deserve to be murdered brutally.”

        Agreed wholeheartedly. The problem is that a significant part of American society, which is well organized at the grassroots level by both the NRA and the religious right, thinks differently. They interpret the Constitution and the social contract entirely differently from you and I.

        I don’t think that makes them monsters, but I do think it puts an onus on people who think like us to be organized and coherent in our politics to counterbalance them.Report

      • So yeah, I am not seeing anything good with the C.S. Lewis statement, it seems to be the height of Calvinist arrogance.

        When I think of Calvinist arrogance, I think of C. S. Lewis, and the following such statements (quoting from memory):

        “It’s possible people are saved only through Christ, but that does not mean they know it’s through Christ that they are saved.”

        “I’m not homosexual and not subject to the ame temptations to vice and the corresponding virtues that homosexuals face. Therefore, I shouldn’t judge them.”

        “Of all possible governments, theocratic governments are the worst.”Report

      • @saul-degraw

        To be clear, those quotations are not the triumph of liberalism and acceptance. But I don’t think they’re the height of calvinist arrogance, either. Neither do I think suggesting punishment should be based desert is necessarily the height of arrogance, especially when it’s offered as a way of limiting punishment and ensuring due process. Part of Lewis’s argument is that if we do something to someone for their own good, we risk ignoring that the process in reality can be adversarial, and that the “patient” has certain rights.Report

      • Avatar Saul DeGraw in reply to Saul DeGraw says:

        @sierra-nevada

        I agree with your observations on the difficulties of justice in a religiously pluralistic society. A lot of my reaction against Murali’s alleged common-sense is that it often comes from religiously homogeneous societies or societies where one religion rules about all others.

        I think of rehabilitation as a secular concept and idea but am honest enough to admit that my secular ideas can still be very influenced by my Judaism.Report

      • @saul-degraw

        I like the idea of rehabilitation, too. I think it’s a scandal that people are warehoused in prisons and then let loose with few options. Putting a rehabilitation scheme in practice, however, is difficult, which doesn’t mean we shouldn’t try, but it might mean we have to be careful about how we do it. As others have said on this site, the Scandinavian model seems attractive. I’m not sure how well we can approximate it in the US, however.Report

    • Avatar Sierra Nevada in reply to Sierra Nevada says:

      @gabriel-conroy I read Lewis mostly because I disagree with him so much, combined with the fact I find him to be honest and principled.Report

    • Avatar DavidTC in reply to Sierra Nevada says:

      @sierra-nevada
      Lewis goes on to say that success in “curing” a criminal or in “deterring crime” are barbarous because there is no limit to the State’s interest. Hideous and torturous cures can be justified because they “work.” Deterrrence is even more horrible because to satisfy the State’s goal we don’t even need to convict the right person, and the more we make them suffer, the better the deterrent effect is.

      I’m not entirely sure I agree with the objection to ‘curing’. If the state is in the business of justifying hideous and torturous things solely because they ‘work’, we’re already pretty much screwed. *cough*waterboarding*cough*

      The problem would be a government that thinks ‘the ends justify the means’, not those particular ends. The particular ends of ‘convincing criminals not to commit crime’ are fine.

      Of course, we’ve never actually attempted to ‘cure’ criminals at all, so the point is rather moot. The one place we really try that are drug users, which ironically are one of the few types of criminals we don’t need to ‘cure’. (If we just give them drugs, and let them use them freely, they’d probably *stop bothering us*.)

      You could probably ‘cure’ a good portion of property criminals by simply making them less poor, by giving them money. Good luck with convincing society to do that.

      However, Lewis completely right about deterrence. Not only does because aiming for that means our ‘justice system’ does not actually have to be ‘just’, but it because people do not actually make rational decisions in that manner.

      People do not correctly assess risks. Period. End of story.

      In the end I usually throw up my hands and oppose capital punishment on the grounds that our criminal justice system is hideously biased racially and against the poor.

      Yeah, frankly, that should basically stop *everyone*. Just full stop, right on that single fact.

      We can argue if we want to kill people *after* that bit of nonsense gets fixed, but until then, there’s no way in hell *anyone* can ethically support the death penalty.Report

    • Avatar DavidTC in reply to Sierra Nevada says:

      @sierra-nevada
      In the end I usually throw up my hands and oppose capital punishment on the grounds that our criminal justice system is hideously biased racially and against the poor.

      Or to put my objection to this another way:

      It is *hypothetically* possible to argue for the abstract idea of eugenics, based firmly a moral grounding. You can make an argument that people with specific genetic defects should probably not reproduce, as that causes actual measurable harm to their children, and in an ideal world we’d try to slowly remove specific genes from the population. So some sort of voluntary program of letting people with specific problems get free vasectomies or tubal ligation and putting them at the front of the line for adoption might, *in theory*, be a good idea for society.

      However, it is not actually possible to argue for this in the real world due to our bad experiences with eugenics.

      It’s pretty much the same with the death penalty, in my mind. You can argue it *can* be necessary punishment of the last resort, for some reason, and I personally think that’s wrong, but it’s a *possible* argument.

      But it’s an argument that only works in some world besides this one, or at least some nation besides this one.Report

  13. Avatar Sierra Nevada says:

    Thanks for this post, and for the commentary. I gotta check out to attend my son’s doubleheader, but for now I want to close out my contribution to the commentary with an observation:

    We face a unique problem with capital punishment. How do we establish a common view of what is “cruel and unusual punishment” when a significant part of our country earnestly believes that God is Just when he throws people into a lake of fire for an eternity of torment for the thought crime of believing in the wrong sect, or not believing at all.Report

  14. Avatar zic says:

    Some of you might be interested in this paper, Political Conservatism as Motivated Social Cognition by John T. Jost, Jack Glaser, Arie W. Kruglanski, and Frank J. Sulloway.

    It tracks support to the death penalty to several conservative several cognitive needs; most particularly need for cognitive closure and morality salience, or the need to punish those who break cultural values.

    It’s an interesting paper.Report

  15. Avatar Dennis Sanders says:

    I’m a bit confused here, Mike. What is the point of your post? Is it that human executions are a farce? I don’t mean to be rude, it just felt like the post wasn’t heading towards any conclusion other than human executions are a farce, but we need to find human ways to kill people (at least that’s how I was understanding it).Report

    • Avatar Mike Dwyer in reply to Dennis Sanders says:

      Dennis,

      The post was really just intended to be a ‘state-of affairs’ thing. I would stipulate the following:

      1) America prefers ‘humane’ and sanitary executions
      2) Lethal injection seems to be harder and harder to perform without complications
      3) When #2 happens we no longer meet the criteria of #1.
      and
      4) The above coupled with the increasing number of convictions overturned by DNA should compel us to reconsider the entire processReport

      • Avatar Dennis Sanders in reply to Mike Dwyer says:

        Ok. Thanks for clearing that up, I’m a little slow on the uptake at times.

        One thing. If I’m not mistaken one of the reasons for the botched execution (besides the incomptence of the state) is that they were using a new cocktail because the companies that make the old one are no longer selling the drugs. This doesn’t mean the state is blameless; in fact it looks like Oklahoma never really tested it before they started using it. But it does provide some light on why things went so awry.

        On the larger question of the morality of the death penalty, I sometimes think that the only way it would be abolished nationwide is if it is no longer seen as a symbol of being tough on crime. I’ve opposed the death penalty for a long time, but I oppose it because I don’t think the state should kill people and because it’s so arbitrary. But I think that too often death penalty opponents are seen as being soft on crime and not caring about the victims. I believe you can and should be hard on crime and also against the death penalty. I think folks in Red States would need to see that there is some kind of punishment for people if they break the law.Report

      • Avatar Mike Dwyer in reply to Mike Dwyer says:

        Well that’s the problem: the state has chosen a form of execution that requires the assistance of private companies. I’m not sure why they can’t make the drug in a state-run lab but who knows.Report

  16. Avatar DRS says:

    I live in a country without capital punishment – except for treason, which is still a capital offense, punishable by hanging – but isn’t it at some level a matter of basic competence? From what I read of the Oklahoma incident, it seems that there were a few medical assumptions made that didn’t work out, in terms of the condemned man’s reactions to certain injections. This is a separate issue from “should we have capital punishment at all?”.Report

Leave a Reply

Your email address will not be published. Required fields are marked *