An Alternative Death Penalty
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In May of 2005 Governor Mitt Romney floated a proposal to restore the death penalty to the Massachusetts judicial system. I originally conceived this as a narrow response to the Governor’s proposal for submittal to the Boston Globe . However it grew during the writing to be much broader than the specifics of that topic — it grew into a fully-formed alternative proposal — and to a length that was wholly unreasonable for a newspaper format. It was instead submitted to The Atlantic but was not accepted for publication.
- 1 June 2005
Recently Governor Mitt Romney submitted a bill to the state legislature to reintroduce the death penalty to Massachusetts after a hiatus of over 120 years. Sensitive to recent death row exonerations that led, among other actions, to a moratorium on executions in Illinois and to a broad national discussion about the reliability of convictions in capital murder cases, the proposed bill was intended to protect against the possibility that the innocent would be inadvertently executed. As reported by The Boston Globe the bill required extraordinary levels of “verifiable scientific evidence” (like identifiable DNA that linked the accused to the crime scene) and a “no doubt” standard of guilt before the death penalty could be imposed.
The flurry of activity surrounding the death penalty both in Massachusetts and elsewhere has come at a policy conjunction. ‘Conservative’ influence on electoral politics is ascendant, engendered in part by legitimate anxiety, by a sense that acts of violence – both domestic and foreign – are becoming more random, and by a sense that the perpetrators of violence are becoming less civil and less humane, and are at times not even recognizably human. That makes the death penalty generally more popular among politicians and the electorate. Meanwhile death penalty opponents have shifted their focus away from the basic morality of the death sentence itself and toward the inherent fallibility of the justice system, toward the very real moral risk of an unjust execution.
Those two trends correspond to two divergent moral themes: a socially moral desire that justice be adequate to the harm caused by a callous disregard for life – that we acknowledge and signify the depth of moral depravity in the act of murder by imposing a sanction of equal moral gravity – and the politically moral mandate that justice be deferential to the harm created by the potential for error or malice, to the injustice of a misguided prosecution of the innocent by the organs of political power.
In responding to those themes Governor Romney was attempting to give us the moral benefit of a death penalty without the moral hazard. Thus the proposal was carefully structured to be “virtually foolproof”, with extraordinarily high evidentiary thresholds and a standard of guilt that seems to leave no room for doubt. But despite the care taken to eliminate error, even the Governor has admitted that it could not provide a guarantee against mistakes under some “extreme circumstances”. Even if it makes the problem of wrongful execution less severe it does not eliminate it entirely.
That is a fundamental problem, for in truth even if you believe in the inherent justice of a death penalty for crimes against life the prospect of making a mistake in a capital case – the prospect of executing an innocent human being – is not a minor consideration that may be brushed casually aside by resort to some statistical assurance. That it “hardly ever happens” is not a good enough standard. If innocent human life is indeed so sacred that justice demands execution for those who would obliterate it, then the injustice of a single wrongful execution must weigh more heavily than the injustice of a few, or even a few hundred or a few million, murderers escaping their rightful fates – especially if an approximately just alternative like imprisonment is available for them. Even the utilitarian argument that the death penalty will deter more innocent deaths by murder than it will create by wrongful execution – and even assuming that such an argument is supported by solid evidence – cannot negate the moral affront created by the execution of someone convicted wrongly. To presume that it does is to fall into the trap of socialistic idealism (either of the left or of the right): that in the name of some greater and prophesied social good we may and should sacrifice the individual with impunity.
Of course any punishment imposes a cost on the punished, so one might make the same argument against lesser penalties or against the very notion of a penal system. But society must have a way to deal with harmful and predatory behavior, and realistically that must involve some form of penalty for the predators – and some risk that those penalties will be mistakenly applied to the innocent. The difference in contemplating the death penalty is that death is irrevocable and incompensable. If we find we have wrongfully imprisoned someone we cannot give them back the years we have taken, but we can at least restore their freedom and award them something of value to compensate – to “make up” for those years. But we cannot restore life to the wrongly executed and there is neither anything of sufficient value, nor any meaningful mechanism by which to award it, that could compensate for the life we have taken.
If a residual potential for error is enough to undermine Governor Romney’s proposal – or any similar proposal – on grounds of harm to the innocent, the mechanisms provided to minimize that potential undermine it in a more fundamental way: they make it so difficult to impose the penalty that it utterly fails to provide the primary justice for which it is intended.
That failure manifests in two ways. First, if justice truly demands a death penalty for certain crimes, then a death penalty rarely applied to those crimes must deny justice in the cases for which it cannot be imposed. In a sense that is worse than having no death penalty at all: where we ought consistently to emphasize the moral severity of crimes that would merit the death penalty, we instead symbolically devalue both the crimes and the victims in those cases for which the death penalty may not be applied by contrasting them with those few cases in which it is. A death penalty that cannot be consistently applied is thus morally counter-productive.
Worse, in the name of emphasizing the moral repugnance of murder such a death penalty, through its restrictive rules, instead does exactly the opposite: it makes punishment contingent on the quality of the evidence available for prosecution rather than on the nature of the crime itself. In effect, death becomes the penalty not for the crime of murder but for the crime of sloppiness and/or stupidity – for leaving sufficient incriminating evidence in your wake. That not only subverts the moral connection between punishment and culpability, but ensures that application of the death penalty would be both rare and capricious, and therefore in the sense of “equal treatment under the law” unjust and unfair.
Thus while the intent of the Governor and those like him may be honorable, in practice such proposals give us the worst possible outcome: a death penalty that would be so sparsely and unevenly imposed that it could not but fail to serve justice; and yet the lingering (if remote) prospect that this fallible human institution would nonetheless fail to protect the innocent from its irrevocable judgment.
It would seem this contradiction is too fundamental to resolve. Human institutions are prone to error; and attempts to eliminate errors tend to render them inert. Does this mean there is no way to serve the interests of justice on both counts? No. There is an alternative.
To come to that alternative we must recognize that the moral purpose of a death penalty is symbolic, not practical. Execution is no more effective at protecting society from murderous recidivism than is indefinite incarceration. And notwithstanding the arguments of some death penalty proponents, justified concerns with wrongful execution increasingly preclude any significant deterrent benefit from the death penalty: even in Texas, which notoriously and by far leads the nation in executions, practical constraints on application of the death sentence ensured that only about one in 50 murders were punished by execution over the last 5 years; the Illinois and Massachusetts examples show that nationwide and in the future that number can only decrease even as the death penalty gains support. If the chance of actually being executed for committing murder is less than two percent (and falling) – and if the “lenient” alternative is a lifetime in prison – then how much deterrence can execution realistically offer?
But the fact that the death penalty is fundamentally symbolic does not make it either inappropriate or futile. Symbols matter, and the psychological and social and cultural effects of moral symbols can transform the human world. A burning cross rarely does much physical damage, nor does a burning American flag; a swastika scrawled on a door or a wall is easily removed; neither the Confederate battle flag nor the Hammer and Sickle stir more than a bit of air in any immediate practical sense. Significance is not to be found in the symbols themselves or in their immediate and incidental effects, but in the memes that they embody and in their ability to arouse passions around those memes.
The meme coded into the death penalty is the moral principle of proportionality in both retribution and contrition – the principle that moral justice demands penalties morally commensurate with the sins for which they are imposed. That is distinct from the political requirement for justice – that the justice system and the penalties it imposes be sufficient to promote individual safety and communal order, either by deterring criminal behavior or by separating the criminal from society. In the political sense a sentence of a lifetime in prison for committing murder may adequately serve society’s need for justice; in the moral sense it may be disproportionate and therefore unjust, demeaning both of the victim’s loss and of the perpetrator’s corruption. That moral principle is, of course, at the root of the dispute over the need for a death penalty: death penalty opponents simply reject the moral imperative. For them the requirements of political justice are not only necessary but sufficient, and in the absence of moral imperative execution in the name of justice is merely another form of murder. For proponents of the death penalty the imperative to moral proportionality demands death for death, and moral culpability transforms execution from murder into a just reckoning. It is neither my intent nor within my grasp to resolve that dispute here. But if we presume, as Governor Romney and others have, that the death penalty is morally desirable, it is so as a symbol of proportionality not as a practical policy of political justice.
Given that the moral purpose of the death penalty is its symbolic import, we can formulate an alternative death penalty that both preserves that purpose and protects the innocent from unjust execution. The key is to separate the sentence of death from the implementation of that sentence. The imposition of a death sentence communicates our moral intent; the execution of the condemned merely closes the account.
To that end, I propose the following implementation of the death penalty:
- Prescribe a sentence of death for appropriate crimes against innocent life. Such sentences attach to the nature of the crime, not in any way to the evidence at hand or to the sympathy with which we view the defendant.
- Impose the death sentence in the same manner and under the same rules as any other punishment – upon conviction for certain crimes under normal rules of evidence and beyond a reasonable doubt.
- Place those who have been so condemned, as we do now, on “death row”, where they sit indefinitely awaiting our final act of judgment.
- As a matter of policy – and as a reflection of our own need for surety in our judgment, not as a form of mercy – prescribe as our method of execution to let nature take its course.
This rather obviously ensures there would be no unjust executions of the innocent, inasmuch as there would be no executions of anyone. The immediate objection to this is, of course, that a death penalty without an execution is no death penalty at all – it is merely “life in prison” dressed up in a rhetorical flourish. What would be the point? But this scheme offers both moral and practical advantages over the alternative of a life sentence.
First and foremost it allows us the luxury of moral clarity: it allows us to put the focus of justice on the crime rather than on the process of the prosecution; it allows us to pass honest moral judgment on the crime without inciting a conflict over the potential failings of our legal institutions; relieved of the responsibility for avoiding irrevocable errors it allows us to debate what constitutes appropriate retribution for unforgivable crimes – and to proclaim our moral revulsion without reservation; and it allows us to reserve our moral right to impose such sanctions even if we choose not to do so. In other words, it allows us the moral benefit of a symbolic execution even if the practical limits of a fallible human justice system preclude a tangible one. It allows us to proclaim as a civilized society, “For what you did you deserve to die. That we have chosen life over death is a reflection of our own moral worth, not of yours.”
Further, because the sentence imposed is death rather than incarceration – incarceration is merely the incidental effect of awaiting execution – there can be no question of parole or of time off or of furlough or of privileges for behaving civilly while in prison. Death row is not the destination from which one may be given relief; it is merely an interminable stop along the way.
As a practical matter the routine nature of the rules of evidence and standards of guilt under which this death sentence may be imposed also allows us to apply the death penalty in a manner truly equitable and just – or at least as equitable and just as for any other facet of our system of justice. And it reduces the compulsion to litigate death sentences for decades over due process minutiae, because the proximate practical result is not irrevocable. Hence it is not only just, it is efficient.
One final practical advantage to this scheme – one that may be included or omitted without affecting its basic structure – is that it allows a potential disciplinary lever over those on death row. Although the scheme prescribes old age as the standard executioner of choice, it would be a simple matter to define special circumstances under which a more immediate execution method could be applied. In particular, the presumption that a life sentence satisfies the political needs of justice is based in part on an assumption that those serving such a sentence cannot constitute an ongoing threat to society. It would be perfectly reasonable to accelerate execution for those who, despite their imprisonment, demonstrate that they represent an ongoing risk – those who, for instance, attack their guards or other inmates while in prison, or perhaps those who remove themselves from supervision by escaping. If the punishment for such threatening acts was the activation of an otherwise deferred death sentence, the incentive for good behavior would be severe. And under those circumstances there would be no mistaken executions of the innocent: the penalties would accrue specifically to the crimes committed within the prison environment, and given the high level of supervision and the small community of potential suspects there could be no doubt about guilt or innocence in such cases.
By focusing on the symbolic import of a death sentence rather than the practical exigencies of execution we can take a moral stand against the most heinous of crimes and still protect the innocent against the vagaries of mistaken executions. Those who favor the death penalty could have the moral import of the death sentence, but without the act of execution; those who oppose the death penalty could abolish executions, but without eliminating that moral statement of proportionality. Perhaps that is a compromise both can agree – uncomfortably – to support.
© Copyright 2005, Augustus P. Lowell