Friday, September 23, 2011

Inaugural Post - On Prison, Life, and Death.

The recent execution of Troy Davis has me thinking about the death penalty and justice. Essentially, Davis was convicted of murdering an off-duty police officer on the testimony of witnesses who later recanted (and in one instance even confessed) and on ballistic evidence later shown to be unreliable. My knowledge of Davis comes entirely from recent news and opinion articles, and having no firsthand knowledge of the case documents and little legal education I can't comment intelligently on the legal wrangling of his failed appeals. Still, the situation drew the interest of civil rights leaders, celebrities, and even the Pope, all of whom argued that standard of evidence was too low, that too much doubt remained to consider killing Davis. In our day of CSI forensics and diligent Law and Order detectives, it seems incredible that we could execute a man without any physical proof of guilt, yet that is exactly what we've done.

Being ignorant of the legal intricacies, my question is more philosophical and historical: Why capital punishment? With some assistance I came up with a few of the basic purposes of the justice system: to prevent criminals of committing further crimes, to deter others, to attempt to rehabilitate them, and finally as punishment. Prevention is the most utilitarian benefit of incarceration or capital punishment: people in prison are unlikely to commit crimes and dead ones even less so. The deterrent effect if capital punishment is questionable but is open to debate by people who know more than me (and based on a quick survey of search results on the topic, quit a few who know less).

Rehabilitation is a wonderfully progressive notion that somehow society can turn bad men good, and is a relatively recent development in criminal justice, a historical novelty. Surely, our ancestors would say, prisons should exist to torment and torture the guilty, not to help them reform. Many societies have found prisons altogether unwieldy, preferring to punish offenders physically and immediately by means of whippings, beatings, choppings, and other unpleasant "ings". Those who escaped death were likely to be sent on their way, punished and perhaps deterred from further mischief. However, the institutionalization of justice and the society's increasing valuation of the human life have displaced those notions, and if inmates don't necessarily deserve to watch TV it's okay to help them obtain a GED. I can't comment on the effectiveness of such efforts, but it seems worthwhile enough to try. However, those sentenced to death are denied rehabilitation: their crimes are deemed heinous enough to make it impossible or not worthwhile. The need for punishment transcends the possibility of reform, which leads me to the final purpose of criminal justice and especially of the death penalty.

As I hinted, punishment and deterrence through fear have been he primary historical motives of justice, and it may remain so to most of us today. When I hear of an awful crime my first thought is "I hope the bastard who did that gets what's coming". Capital punishment provides a finality, a retribution that other forms of punishment cannot. It satisfies a certain primal need, a deep-rooted sense of balance, to know that someone who has committed a terrible crime has been deprived of life. Though we know that the culprit's death cannot return what was taken, and the interminable slowness of our justice system can (and, in fact, is designed to) frustrate our desire for quick retribution, capital punishment for the guilty is rewarding in its own right.

And yet even the most committed capital punishment advocates today are positively liberal compared to our predecessors. We tend to restrict capital crimes to those involving the direct taking of life, but so many past examples of the death penalty have been strictly political. Supporting the wrong politician in the late Roman republic meant swift death when his adversaries took charge, and that has been a historical norm in large societies. In modern times we've seen countries "purge" their ranks of political undesirables with millions of deaths resulting. Even American history is not as spotless as we'd like to like (fortunately we've been mostly free of the worst of humanity's excesses). Not to mention that it was entirely reasonable in the past to punish one's family for any crime, and this remains a wonderful way for totalitarian regimes to maintain control today. Then there are the means of punishment, to which I've already alluded and need not go into any lurid detail. Suffice to say that lethal injection is positively generous compared to what's happened in the past.

So where does this leave me? I am against capital punishment in almost every case. I believe that the standards we use to determine who is executed in America are more just than what has been done in the past, but I subscribe to the modern notion that human life is absolutely sacred. The mere possibility (and in fact, likelihood) that we execute innocent individuals is enough to convince me not to consider it. I would rather a hundred murderers live (ideally behind bars) than an innocent man die. Then there is the disproportionate affect of race and economic class, which should trouble anyone. Conservatives would likely reject my cost-benefit analysis of innocence and human life (for reasons I find difficult to understand), but I hope they would at least admit that lifetime incarceration is as effective and rational (if less satisfying) as a means of crime prevention, and that the staggering cost makes capital punishment bad fiscal policy even where guilt is certain. Libertarians may agree that the risk of letting a guilty man go free is more acceptable than putting our lives in the hand of a fallible, government-run justice system.

However, like many I am not consistent in my beliefs. While I believe Troy Davis should not have been executed, I shed no tears over Osama Bin Laden's death-without-trial. Nor will I lose sleep over Timothy McVeigh. Those who know me know that I only half-jokingly favor very "creative" punishments for certain sexual offenders. I'm sure that many people feel similarly conflicted or ambivalent. The death penalty has been used and misused throughout history enough for me to form a very logical and emotional argument against it, but it is an issue that must occupy the uncomfortable space between my ideals and the real world.


  1. The interesting question for me is, Why? Why do we still have executions? There's an interesting article in the March 2000 Journal of the American Academy of Religion called "Capital Punishment and Human Sacrifice" (by Brian K. Smith) that, as the title hints at, compares state-sponsored executions to ritual sacrifice. It takes a bit of poetic license in so doing, but it raises some very interesting points about the nature of executions. Historically, of course, executions were open affairs meant to "remind" the viewing public that the sovereign was in control and that there were repercussions to violating the laws of the State. That's where your hangings and crucifixions come into play. Then there are the modern affairs, where the emphasis is on making the ordeal private, clinical, and humane--to the point where the inmate is placed on suicide watch the week prior to the execution, his or her arm is swabbed with alcohol before the needle is injected, and both a priest and a physician are present. This poses the question, of course, of what the role of modern executions is. Is it to underscore to the people at large that old cliche that "crime doesn't pay?" If so, why are modern executions exclusively private affairs? Is it to demand punishment for an individual's misdeed? If so, why do we worry so much about their health and well-being leading up to their death? Even in states where death by firing squad is still an option (read: Utah and Idaho), the inmate is placed in a chair with a white target covering their chest and a metal pan to collect any trickles of blood. It's like this bizarre amalgamation of modern sensibilities attached to an archaic process.

  2. Sorry this is a bit late. It's been a few days since I read the post, but I remember thinking that it never really occurred to me how 'progressive' capital punishment is in America, at least in its . . . well . . . (truly not intended as a pun) execution. That it fits within a system of social justice is fairly remarkable. I might disagree with the argument that others make for the necessity or benefits of capital punishment, and yet I do have to say that I have neglected to appreciate that the debate and disagreement can exist and play out within a larger system of ideas.

    One thought connected to the humaneness of the American penal system was that that was the reason Alexis de Tocqueville came to America in his first travels--to study our prison systems. Compared to what happened to France after its revolution, America looked a bit different after their own. It's intriguing that it was sparked by an interest in and fascination with how a new country confronted individuals who behaved outside of social norms. It doesn't get to Foucauldian levels of critical analysis, but "Democracy in America" is quite the work inspired by the American criminal justice system--and that was way before the people were represented by two separate yet equally important groups.

    This doesn't speak at all to the question you're having, and the argument Brett brings up I (not too surprisingly) find very insightful and would tend to agree with. Also I heard once that Utah and Idaho's death penalty executions were firing squads because they're leftovers of Blood Atonement doctrine days. I'm not sure if that's true or if that's a folk etymology of the practice. Obviously the practice can speak both to the time it was created and each subsequent time period that maintained the practiced, which would include our own. So while blood atonement may not specifically be taught, it could still echo through particular legislation which then reverberates the belief back onto the community upholding that law. It is weird that it is not public though. There are plenty of instances where demonstration is made public in its invisibility, though there is usually some public iconography that acts as representation for the event or act as a testament or simulacrum. I'm not sure what that is in current cases. It's hard for me to believe the deterrent argument to begin with, but without the signification of consequence (which I'm fine that they don't distribute or televise), it just seems that argument loses its largest evidence. Can we have it both ways? Have a law instituting a weighty consequence and yet shield society from viewing the weighty consequence? Is this not like always moving the parts of ourselves that we don't like outside of our vision and perception--like prisons, Guantanamo Bay, or Auschwitz? Baudrillard argued that prisons create the illusion that those exist in the prison do not exist in society but of course they do. And contemporary theorists discuss how civilized nations put their para-legal activities that do and do not define who they are as a people outside their own national borders, like Guantanamo and Auschwitz. It's some interesting stuff.