Published 01.26.08 at Townhall.com
Published 02.04.08 at Crosswalk.com
In November, the United Nations called for a worldwide moratorium on the death penalty. In December, Gov. John Corzine signed legislation abolishing the death penalty in New Jersey. Now, in January, the Supreme Court has heard arguments on whether lethal injection violates the 8th Amendment’s ban on Cruel and Unusual punishment. So, with New Jersey and the UN on one side and Texas and Iran on the other side, the Supreme Court seems poised to pick for us all between the new morality and the old.
Now, granted, New Jersey hadn’t actually executed anyone in 45 years, so this was a bit like Bill Cosby announcing that he will stop using profanity in his sketches. But the official decision is still noteworthy, as is the fact that New Mexico, Montana, and Nebraska all came close to doing the same thing this year. In the face of the seemingly unstoppable modern sensibility, why would anyone continue to support executing murderers? Well, I’ll tell you, since you asked.
There are five possible objectives of any legal system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. Starting with these values, let’s explore the differences between the two alternatives: capital punishment and life in prison without he possibility of parole.
Incapacitation
Incapacitation is the goal of making it physically impossible for the criminal to commit further crimes against his fellow human beings.
Clearly, both capital punishment and life in prison without the possibility of parole fully incapacitate criminals with respect to the general society. The only exception is if the prisoner escapes, but given that there is such a long delay between conviction and execution that death row becomes a de facto prison sentence until then, there is less distinction here than initially appears. But, for the sake of argument, let’s say that once the two paths diverge, execution is 100% incapacitation and LIPWPP (Pronounced Lip-Whip) is 99+% incapacitation. As an advocate of the death penalty, I’m not interested in quibbling about numbers, so I’ll grant that incapacitation is the same for both alternatives.
Within the prison community, however, things are not so clear. Unless LIPWPP is upgraded to permanent solitary confinement, such prisoners will still be a threat to guards and other prisoners during their confinement. This is no trivial difference given the obligations of prisons to protect prisoners from each other. Nonetheless, as long as such isolation is the form of sentencing advocated, I’m willing to grant that incapacitation is a non-issue in this debate.
Rehabilitation
Rehabilitation is the goal of reforming the criminal so that he can be reintegrated into society as a well-behaved, productive citizen.
Several recent studies have shown that execution is almost completely unsuccessful as a method of rehabilitating the offender. However, given permanent residence in isolation within a prison, LIPWPP isn’t really rehabilitative either. Thus, both alternatives are equal again on this value, at least in the sense of preparing a criminal for re-entry into general society.
However, if one means by rehabilitation the service done to the criminal himself of helping him have a profitable and meaningful life while incarcerated, things are not so clear. On the one hand, it is possible that a murderer would repent and dedicate himself to self-improvement. On the other hand, it is possible that a murderer would go on hating and descend into a spiral of self-destructive seething. Since quantifying these probabilities exceeds my abilities, I’ll optimistically estimate that the net chance of self-development benefits obtained during LIPWPP is offset by the equally small advantage in incapacitation certainty obtained through execution. So, rehabilitation and incapacitation taken together become moot issues.
Retribution
Retribution is the goal of restoring the scales of moral justice to balance as possible.
For instance, when someone thieves, the objective is to restore the victim to his condition prior to the loss. This requires restitution equal to the theft plus a penalty to cover the lost use of that money and the intangible damage to his confidence and security. Civil law is the easiest illustration for understanding retribution. We quantify all sorts of things in civil courts for the sake of saying what the offender owes, and the idea is to restore balance by taking from the criminal and repaying the victim.
But there are always two victims of every crime: the particular person and the moral fabric of the society itself. For every infraction against this fabric, we asses varying degrees of penance including jail time, community service, and fines. These all have their own merits, but the retributive purpose is to make the criminal pay enough to restore balance to the moral universe just as he must to the victim. Not only is this about compensating those who have lost, but it is about allowing the offender the privilege of paying his debt to society so that he may satisfy the demands of just retribution. Once paid, we are no longer owed, and he not longer owes.
What, then is the proper retribution for murder? As death penalty opponents are so fond of saying, “Executing the murderer will not bring his victim back to life.” That, of course, is true. It’s just as true, however, that giving him LIPWTPP will also fail to accomplish a resurrection. And that’s the point. There is simply nothing the murderer can do to truly restore the social fabric to the status quo ante for the obvious reason that there is no way to replace missing people. Nonetheless, as history and the Bible so clearly have held, blood alone can atone for shed blood. By requiring his life of him, we make him pay the only correct price and we also allow him to fully pay it. This balances both the moral fabric as well as the murderer’s personal register.
Once we comprehend this distinction between murder and all other crimes (which can be restituted for), it should be clear that retribution not only justifies execution, it requires it. Execution is the only correct penalty-in-kind for murder, and retribution is the only value so far analyzed which justifies taking this most precious of payments from someone.
In my next column, I will consider the issues of deterrence and symbolism before moving on to discuss the other issues in this complex and often difficult issue.
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3 comments:
The crime is secondary. Crime is secondary. There are no millionaires on death row nor will there ever be. Almost everyone on death row is poor. And do you really think that no millionaire ever committed a capital crime?
There are certain people in our society that we are willing to offer up. And not others. And they're the people who have no power. We're not killing convicted murderers because they committed murder. We're killing convicted murderers because we want to kill somebody.
It's a terrible injustice that people are still being executed.
Mr. Tallman wrongly concludes that "rehabilitation and incapacitation taken together become moot issues."
Even though executed murderers can never harm or murder again and living murderers can always harm or murder, again, Tallman states:
"I’m willing to grant that incapacitation is a non-issue in this debate. "
Wrong. Incapacitation weighs strongly in favor of the death penalty. It is not even a close call.
Mr. Tallman writes: "Rehabilitation is the goal of reforming the criminal so that he can be reintegrated into society as a well-behaved, productive citizen."
Mr. Tallman overlooks the obvious and the important.
Rehabilitation is an internal mechanism that regards an internal changing of the prisoner's character, and thus will be manifest in prison and/or after release.
This is a particularly useful understanding when we are speaking of life without parole and death sentenced prisoners.
It is instructive to the prisoner, in this regard, that society gives to him/her that sentence which is the most just and represents society's condemnation for the crime. Among many other things, criminals should be able to appreciate the level of their transgression, by society's just condemnation of it. This is the beginning of the rehabilitative process.
Mr. Tallman concludes in his next topic, retribution, that:
" . . retribution not only justifies execution, it requires it. Execution is the only correct penalty-in-kind for murder, and retribution is the only value so far analyzed which justifies taking this most precious of payments from someone. "
I agree. In other words it is not only just and required, it is also the most insructive and thus, the more important in the rehabilitation process.
Rehabilitation and incapacitation, taken together or individually, are important and both weigh in favor of the death penalty over LWOP.
To set the record straight:
Living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
This is a truism.
No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.
Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
That is. logically, conclusive.
16 recent studies, inclusive of their defenses, find for death penalty deterrence.
A surprise? No.
Life is preferred over death. Death is feared more than life.
Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.
What prospect of a negative outcome doesn't deter some? There isn't one . . . although committed anti death penalty folk may say the death penalty is the only one.
However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.
invention of No Possibility of Parole
Mr. Tallman has invented a sentence not in the law - life in prison with no possibility of parole.
We do have life without parole, but no lawmaker, has yet, attempted to be so misleading as to add the "no possibility" part.
For good reason.
There are four absolutes that Mr. Tallman should have looked at.
It is always the province of the executive branch of governement (Governors and Presidents) to grant clemency or commutation, meaning they can change the sentence to a lesser one or just release the criminal.
Such much for "no possibility".
Furthermore, the legislature can always, retroactivly, change the sentencing structure, for example, they can change the death penalty to life without parole, as New Jersey just did, for existing death row inmates (some will not serve a life sentnece) or they could later change life without parole cases, retroactivly, to sentences of less than life, which is an ongoing effort for some.
So much for "no possibility".
There is, however, no possibility that an executed murderer will harm or murder, again.
And it is "always a possibility" that a living murderer will harm or murder, agains, in prison, after escape, or after improper release.
I concede the possibility of executing an innocent, but innocents are more at risk with life without parole than with the death penalty.
Mr. Tallman writes:
"In November, the United Nations called for a worldwide moratorium on the death penalty. In December, Gov. John Corzine signed legislation abolishing the death penalty in New Jersey. Now, in January, the Supreme Court has heard arguments on whether lethal injection violates the 8th Amendment’s ban on Cruel and Unusual punishment. So, with New Jersey and the UN on one side and Texas and Iran on the other side, the Supreme Court seems poised to pick for us all between the new morality and the old."
I would certainly disount New Jersey. See below.
106 countries currently have the death penalty. 91 do not.
This, from the French daily Le Monde, December 2006 (1):
Percentage of respondents in favor of executing Saddam Hussein:
Great Britain: 69%
France: 58%
Germany: 53%
Spain: 51%
Italy: 46%
USA: 82%
We are led to believe there isn't death penalty support in England or Europe. European governments won't allow executions when their populations support it: they're anti democratic. (2)
(1) The recent results of a poll conducted by Novatris/Harris for the French daily Le Monde on the death penalty shocked the editors and writers at Germany's left-leaning SPIEGEL ONLINE (Dec. 22, 2006). When asked whether they favored the death penalty for Saddam Hussein, a majority of respondents in Germany, France and Spain responded in the affirmative.
(2)An excellent article, “Death in Venice: Europe’s Death-penalty Elitism", details this anti democratic position (The New Republic, by Joshua Micah Marshall, 7/31/2000). Another situation reflects this same mentality. "(Pres. Mandela says 'no' to reinstating the death penalty in South Africa - Nelson Mandela against death penalty though 93% of public favors it, according to poll. "(JET, 10/14/96). Pres. Mandela explained that ". . . it was necessary to inform the people about other strategies the government was using to combat crime." As if the people didn't understand. South Africa has had some of the highest crime rates in the world in the ten years, since Mandela's comments. "The number of murders committed each year in the country is as high as 47,000, according to Interpol statistics." As of 2006, 72% of South Africans want the death penalty back. ("South Africans Support Death Penalty", 5/14/2006, Angus Reid Global Monitor : Polls & Research).
Regarding New Jersey:
DEAD WRONG: NJ Death Penalty Study Commission
by Dudley Sharp, Justice Matters, contact info below
Summary
The New Jersey Death Penalty Commission made significant errors within their findings. The evidence, contrary to the Commissions findings, was so easy to obtain that it appears either willful ignorance or deception guided their report.
Full report
http://www.hallnj.org/cm/listing.jsp?cId=3
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