Thoughts on the death penalty (was: Open thread for Earl)

This post is updated, but kept at the original link, in order to keep the Internet from falling into utter chaos.

(A discussion at Making Light has become a bit warm. I would like to see if the talk might cool off a bit, if moved here.) That's not happening. Reader, if you want to see me make an ass of myself in public, take a look at this: Go, New Jersey! The lesson: don't post while feelings are running high. The old wisdom about writing angry letters applies: write it, but don't mail it till the next day, when you have cooled off. On reflection, you may find that you want to say something different, or to say the same thing in different, less inflammatory language. Or, maybe, not say anything at all.

But let's look at the original post over there. Here's the substance of it:

The arguments against capital punishment are these: It doesn’t actually prevent violent criminals from committing crimes, it’s barbaric no matter how you go about doing it, there’s no guarantee you got the right guy, and it sends the wrong message: Killing is wrong, and to prove it we’ll kill you. Most civilized countries banned capital punishment long ago.

Much as I respect Jim Macdonald (I have linked to his posts several times here), these "arguments" are bumper stickers. One at a time:

• "It doesn’t actually prevent violent criminals from committing crimes." Which criminals? A violent criminal who has been executed will commit no more crimes. I would call that some actual prevention. Or is this intended to mean, "It does not deter potentially violent criminals from committing crimes?" That's another matter. In London when pickpockets were publicly hanged at Tyburn, other pickpockets worked the crowd of spectators. Someone is going to object that picking pockets is not a violent crime. So shouldn't the message get across even more clearly to non-violent criminals? Apparently not. Some people just don't get the message. They are not listening and do not care about messages. As Samuel Goldwyn famously said, "If you want to send a message, call Western Union." Goldwyn was talking about movies, of course; but the point is that there are people who will not or cannot get the message. So how to stop them from murdering, raping, and robbing? Sentencing them to life imprisonment does not seem to work, since governors and parole boards who wish to make themselves feel good by being merciful are always likely to be with us. To grant mercy to a predator is to condemn the prey, which would be the general populace. Jack Abbott. Darrell Billingslea. (Why was this convicted murderer released from prison?) Wayne Dumond. Richard Allen Davis. Daniel Tavares. Far too many more. "Life without parole" is not a real sentence, as it is always subject to review; and the possibility of escape is always there.

• "It’s barbaric no matter how you go about doing it." Barbarism is in the eye of the beholder. The word "barbaric" means foreign, alien, uncouth, uncivilized; literally, unable to speak our language; so, something that "we" would not do, because it's just not "our" way. Squicky and unpleasant. There's an element of elitism here, of amour-propre above all, reminiscent of the Jains of India, who will not kill an insect. Of course they have to hire flunkies of other beliefs to sweep their paths before them, lest they tread on some little creature; but the flunkies' sins are their own, not their master's. Killing an animal is unpleasant; killing a human being, I can only imagine, much more so; but a mad dog must be killed. Is this argument really about the death penalty itself, or about Which Execution Method Causes the Least Discomfort (to the Public)? Leaving out such things as 9/11, unaimed rockets fired into Israel, and bomb attacks on Israeli buses, Balinese nightclubs, Spanish trains, and English pillar-boxes, I would call the killing of Daniel Pearl barbaric. Or that of Nicholas Berg. Or those of Jennifer, Hayley, and Michaela Petit. Or those of Channon Christian and Christopher Newsom. The execution of Nathan Hale: regrettable, for our side; not barbaric. The rules of war were followed; Nathan Hale knew what he risked. The execution of John Wayne Gacy: not regrettable, not barbaric. (Though botched; maybe Dr. Guillotine had the right idea. He invented his device for humane reasons.) Is it too incomprehensible to consider the death penalty as a public safety measure? In this comment thread I argue against it for the mentally incompetent. Now I am starting to wonder if I was right about that.

• "There’s no guarantee you got the right guy." Sometimes you can be sure; Brian Nichols, for instance. Jack Ruby. Otherwise, it varies from case to case. And this bumper sticker just about invalidates the entire justice system, since the same could be said in any criminal case. Juries do the best they can. Cases of corrupt juries and overzealous prosecutors do not make the whole system useless. Such cases, as with the Duke lacrosse players, or the Scottsboro Boys, are horrible examples that should help to wake people up to abuses of a system that is about as good as what we can have, given the human material available. (On the opposite side of this coin are such as O.J. Simpson and the first couple of trials of Byron De La Beckwith.) As modern forensic science improves, especially with DNA testing (exemplified by the great work of the Innocence Project), it is possible to achieve a greater degree of certainty. If we could see more of the kind of thing that Radley Balko writes about in More Prosecutors Like Craig Watkins, Please, that would be a great thing, too.

• "It sends the wrong message: Killing is wrong, and to prove it we’ll kill you." See above about sending messages. This seems to be a misunderstanding of the sixth, or fifth, Commandment, which in the Hebrew, is not "Thou shalt not kill," but "Thou shalt not murder." The distinction between murder and killing is an important one. Is every soldier who has killed an enemy in battle a murderer? Is a person who kills an attacker in self-defense a murderer? For that matter, is an executioner, employed by the state to do justice, a murderer? The answer to each of these must be "No." The alternative is the worst kind of Hobbesian anarchy.

• "Most civilized countries banned capital punishment long ago." Depends on what is meant by "civilized." Most of the "civilized" countries of Europe have been convulsed with violence in the last century: revolutions, the Holocaust, two World Wars, terror gangs like the Red Brigades, "ethnic cleansing," now the rioting youths in the banlieues; the US is far more civilized than those places. If being civilized means to keep on turning the other cheek, for the sake of one's own self-regard, then the civilized will run out of cheeks before the real barbarians run out of knives, bombs, bullets, clubs, and fists.

Those are arguments against the arguments against the death penalty. Do I have arguments in favor of the death penalty? Other than the above, not so much. This is a lesser of two evils decision that someone has to make. In our system, "someone" would be the legislature and governor, in this specific case, of New Jersey. Banning the death penalty means that, in the estimation of those who hold the High Justice, no crime is serious enough to warrant it. Murder, rape, torture, kidnapping, treason, espionage, all of them in combination: nothing. A counsel, literally, of nihilism. A statement that no sins are deadly. A trivialization of human volition. A sloughing of responsibility. Certainly the death penalty should be rarely applied; but to say that it is never warranted is to deny the seriousness of free will, the existence of evil, and the worth of lives and nations.

=======================

There's one more point to address here, having to do with netiquette and politeness in general. The post of mine that has received the most hits in the shortest space of time was the one about trolls. It's ironic, then, that I should be perceived as trolling, when I have expressed my detestation of the creatures. As I said in my apology on the New Jersey thread, "Making Light is a wonderful party." It's not polite to bust into a party where everyone shares the same ideas, and tell them that they are wrong. I was Alice, and got the Hatter's final reply. No-one's ideas are ever changed in Internet comment fora. (What, never? Well, hardly ever.)

=======================

Update, years later: Glenn Reynolds, on Radley Balko (Why Americans still support the death penalty), offers this:

I think it’s because tedious liberals self-righteously oppose it, while showing an appalling insensitivity to the lives (and deaths) of ordinary non-criminal Americans. Though I should note that European citizens also support the death penalty in large numbers — they’re just ignored by their leaders. The best argument against the death penalty, of course, is what Charles Black called “the inevitability of caprice and mistake.” But that argument, taken seriously, is an indictment of the entire criminal-justice system, not just the death penalty. It may be a valid indictment, but few are willing to go that far.

The worst argument against the death penalty, of course, is that it’s somehow awful for the state to kill people. Nation-states are all about killing people. They exist solely because they’re better at that, on a large scale, than any other form of human organization. Everything else is superstructure, and if they lose that edge it will fade away.