Ruminations on the death penalty

Seth Finkelstein sethf@mit.edu

The death penalty can be one of the most contentious topic to debate. The following describes my assessment and dissatisfaction of some frequently-seen points (not meant to be exhaustive, merely representative), and goes one to dissect what I find the most notable about the subject.

Part 1: Some personal short takes on a few assorted death penalty topics

This argument is perhaps the most common one heard in conversation about the death penalty, virtually certain to come up in any long exchange. It's short, appealing, and seductive, a great sound-bite. From the way it's often said, it's clearly a passionate statement of the opponent's deep-seated beliefs.

Unfortunately for all that, as stated it fundamentally makes no sense. Due to the superficial symmetry set up, it can be hard to see exactly what's wrong with the argument, because to articulate the problem here requires some depth of political theory. But if the sentence for a crime of theft or embezzlement involves a hefty fine, no-one opposes this by saying "Taking money is wrong. The government takes money from a thief to prove this". Kidnapping typically carries at least a heavy prison term, but this is not described as "Removing people's freedom is wrong. The government removes the criminal's freedom to enforce this".

Essentially, the argument slips in an implicit assumption that the State and the individual have identical moral restrictions on all categories of actions they may perform. But a fundamental idea of government in the first place is that the State may do certain things in a judicial capacity that are not generally permitted to individuals, such as deprivation of life, liberty, or property. This must of course be done under due process of law, by no means do I wish to imply any court action must be correct. But as a moral principle, judicial actions are simply accorded a different status, and even people trying for the above equivalence recognize this difference in other areas where one could attempt similarly facile comparisons. Murder is an unlawful taking of a human life, execution a lawful one. They are as similar and different as a theft and a fine, or kidnapping and prison terms.

A great deal has been written on this subject. I want to step back a bit from the minutiae. I think it safe to point out that, given the complexity of studies that must be mustered by proponents in favor of the point, that if there is any such deterrent effect to be found, it is so small that extensive statistical analysis is necessary to detect it at all. Proponents sometimes talk as if the conjectured deterrence were a weighty factor, instead of a highly theoretical effect of miniscule influence if it even exists in the first place. In the United States, death penalty opponents sometimes point to the US Constitution's Eight Amendment which forbids "cruel and unusual punishment". But on textual grounds it's a difficult argument to maintain, as the Fifth Amendment clearly refers to such punishment "No person shall be ... deprived of life, liberty, or property, without due process of law ..." (also repeated for the states in the Fourteenth Amendment).

I believe one can argue out of this by contending that while execution is not per se cruel and unusual punishment, the extent of due process of law required to underpin such a drastic step as deprivation of life is far greater than is likely to be present in too many of these cases. In effect, the principle is conceded in theory, but the imperfections bar the implementation. The interesting part of this approach is that it turns the textualists around from arguing that the US Constitution contemplates the death penalty into a much weaker position of arguing that the Fifth Amendment somehow mandates that the standard must be set so as to permit some deaths.

Unfortunately, the above approach seems to be in exactly the opposite direction of current Constitution jurisprudence, nowadays hell-bent on removing reviews of conviction and raising barriers for appeals. It's almost as if the weak idea above, that some amount of execution is Constitutionally mandated, is being seriously put in place.

While it's rather difficult to refute this in the abstract, it would be hard to imagine a more expensive and inefficient way of lowering the murder rate in practice.

Part 2: The ambiguous relationship of US culture and the death penalty

Going through the above topics and similar ones, I find little in most arguments pro or con that moves me deeply to one side or the other. Instead, what strikes me most forcefully about the issue is the profound unease that attaches to the mechanics of the execution itself. It's as if culturally, deep down, virtually everyone carrying out the procedure feels they are involved in something illegitimate and have to obscure it somehow. Here I'm referring to the rigamarole often found in the actual killing. For example, consider firing squads, where several shooters are used and one gun is loaded with a blank:
One of the sharpshooters fired a blank, leaving each of the five the chance to believe he was not the executioner.
(from a news report)

That such a metaphorical fig-leaf is thought necessary speaks volumes about the ambivalence hanging over the execution. This goes way back in Anglo-American tradition, from blindfolding the condemned to the hooded hangman. Although there are undoubtably people who would proudly proclaim their participation, overall there seems to a distinct lack of institutional ability to face up to what's being done.

Sometimes the goings-on descend into a kind of low comedy, as in botched attempts in giving lethal injections:

"One Texas inmate said he was an addict since he was 11. When we tried to get an IV going we couldn't find a vein. We looked everywhere and he was helping us," McCotter said.

The condemned man's veins were so riddled with syringes during his years of intravenous drug use, they had sunk beneath the folds of flesh covering his legs and arms.

After an hour and 20 minutes, the executioners secured the needle into a vein running along the back of the inmate's hand. The execution proceeded without the backup IV required under Texas's execution policy.

(from an article entitled CORRECTIONS BOSS: LETHAL INJECTION FAR FROM PERFECT)

Now compare to say, China, where they don't go through anything like the above, and simply and directly shoot the condemned prisoner in the back of their head (as well as making the families pay the cost of the bullet and allegedly recycling the organs of the corpse for transplants).

This dichotomy is the deepest argument I see the death penalty: That on a basic level, the parts of the judicial system closest to the implementation and charged with carrying it out simply are not comfortable with it, reflecting a fundamental aversion.

Seth Finkelstein is a Boston-based software developer.