Tuesday, September 1, 2009

Killing the Death Penalty

Usually, like most people, I find that things are very clear in theory, but much messier in practice. Clean, orderly theories often become much more, let’s say nuanced, when they’re forced to deal with a complicated reality. But, strangely, I’ve realized that there’s one issue which, for me, is exactly the opposite of this: the death penalty.

In theory, I am against the death penalty, but I am conflicted about that position. At the end of the day, I don’t believe that capital punishment is right – I don’t think that we can build a moral society by killing people (or, to be more precise, that killing people is an effective part of building a larger, moral society). It’s a bit like spanking your kids for fighting – can you really teach them to be non-violent by being violent towards them (most child experts say, “no – you can’t,” for what it’s worth)? I tend to follow the Rabbis of old, who understood the death penalty as an extreme ideal, but one which was never meant to be put to use. “Your crime is so heinous as to deserve death, but it’s not up to us to impose such a terrible punishment,” seems to be the gist of the message our sages try to convey.

But, I really do understand those who support the death penalty. I hear about awful, heinous crimes, and I want someone to die for them. I read about molesters, and mass murderers, and serial rapists, and I have a lot of trouble summoning moral outrage at the idea of their being put to death. So, even though, if were up to me, we wouldn’t impose the death penalty on these awful, evil people, I can admit that I’m not 100% sure that’s the only right approach.

But, in the face of actual reality, my opposition to the death penalty becomes much more strident, and absolute. Today, the New York Times ran an Op Ed by Bob Hebert, talking about what may be the clearest case yet of an innocent being put to death. I’ll warn you, it’s a chilling read. In 2004, a Texas man was executed for the killing, by arson, of his three children. And, it seems that not only is there not a single shred of evidence that he did it, or that it was arson at all, but there never was. The entire case was built on sand.

This man watched as his home burned with his three children inside of it. He was injured trying to get them out, and then had to be restrained, at one point using handcuffs, to keep him from going back in to try to get them again. He lived through the worst horror I can possibly imagine, and then was accused of perpetrating that horror. And then, he was killed for it. All along, knowing that he was innocent.

This was not a 30-year old case, in which we have new evidence that, maybe, something was handled badly. This execution happened in this decade, with all the necessary technology and wisdom available to save his life, and yet the system failed him. Those who support the death penalty must, I believe, face a clear fact: keeping the death penalty legal all but guarantees that, at least some of the time, innocents will be executed. To believe that we can have capital punishment, and not have it sometimes misapplied, seems almost farcical to me. Humans make mistakes. Systems created by humans have flaws. Nothing is perfect. Innocents have been put to death. Innocents will be put to death. That’s the reality of the death penalty.

If there is anyone reading this who does support the death penalty, I would love to hear your counter-argument. In all sincerity, not to attack you – can you please explain how, in the light of this revelation, you can continue to support capital punishment? Are you willing to let some number of innocents die, in the name of greater justice? Or, do you believe that it’s possible to create a perfect system, even if we haven’t done so already? I don’t see any other choices.

Reasonable people can debate the philosophy behind this, and I’m willing to be swayed. Maybe, in a perfect world, the death penalty has a time and a place. But, in our world, the world we actually live in, it’s time to admit that the power over life and death is too great to be wielded imperfectly. Which means it’s too great to be wielded at all.


Andy Cohen said...

I think we have had this discussion before...I am actually pro-death penalty, but only in those extreme circumstances where there is NO shadow of a doubt in any way. Like OJ Simpson for example. Even though I feel he was 100% guilty of committing double murder, there is that chance that he actually didn't do it. I wouldn't give him the death penalty. But that guy who went on the NYC subway (like 15-20 years ago I think...), pulled out a gun and then walked up and down the aisle shooting people, and was then tackled and subdued when he went to reload...Him I would execute. He's arrested at the scene of the crime with NO chance that they arrested the "wrong guy." The guy who killed and beheaded that person on a bus in Canada. Again, no doubt.

So, while it's not something that I sing loudly from the top of the rafters about that, "YEAH!!! I'm all for the death penalty!" It's simply how I feel on a gut level. Is it justice, or revenge? Revenge probably. I'm not sure. I just know how I would feel if I was a victim in one of these cases. Like this guy who kidnapped that girl and kept her in the backyard for 18 years...If that girl had been Allie, they'd have a hard time keeping me from killing him myself with my bare hands, and I definitely wouldn't want to know that my taxes were keeping him alive in jail. Not that money/taxes are the real reason, it's the principle I'm thinking of.

So, as for your question though with the execution of an innocent person, I think nothing is more horrible, which is why (if I was king of the world) I would not make it possible to execute someone unless it was something so completely incontestable like the few examples I mentioned.

Again, this is an incredibly simplistic answer to a very emotional and complicated subject and since I am at work, this is as "deep" as I have time to get...

Liz S said...

I didn't see the Herbert column, but I assume he's reacting to the really riveting David Grann article in the Sept. 7 New Yorker on this case. Apart from the searing moral issues raised by this abuse of the death penalty, this case also makes clear that too often law enforcement relies on "tried and true" methods that actually have little scientific legitimacy.

I have a pretty relativist view of the death penalty. If I thought it were actually a deterrent -- e.g. that putting a murderer to death would dissuade other murderers -- then I'd consider it. But it's not a deterrent AND it's administered imperfectly AND its morally questionable. The trifecta of bad policy.

Incognito said...

It is important that a concept is conveyed to the community that there are some acts so heinous that the only appropriate response is to end the perpetuator’s existence. To deny that there such acts cheapens the value of life. I think that’s why the Talmudic sages did not take the option off the table completely.

Tales of injustice within the criminal court system have been used to support a great many things, from getting people to oppose the death penalty to getting them to drag criminals out of jails to hang them.

There is no doubt that Cameron Willingham found no justice in our court system and ultimately paid with his life. Part of the problem is that some people in power acted with near malice, knowingly misconstruing evidence. It seems, if the worst happens, they can look forward to administrative punishments and perhaps losing their job. A truer expression of justice would demand they be charged with non-negligent manslaughter and face a criminal trial, one that could end up delivering a death penalty itself.

The problem is not with the death penalty but with the justice system. No system will ever be perfect (and I believe the American criminal court system is one of the best the world). Even if we inarguably had the best criminal justice system we would still have an obligation to improve its accuracy.

I would like to point out that sentencing people to life without parole doesn’t remove the possibility that an innocent will die. Prisons are violent places and people, perhaps some of those railroaded by the system like Mr. Willingham, are killed. Life without parole in the current system is not a more humane option; it simply shifts the responsibility for deciding who dies from twelve citizens on a jury to someone with violent tendencies and access to a makeshift weapon.

To take away the death penalty in clear cut cases because of mistakes made in less than clear cut cases is also an injustice.

The responsible thing to do is to demand accuracy in convictions and radically changing the prison environment to protect the prisoners from each other (and to make jail less like a vocational school for criminals).

Rabbi Jason Rosenberg said...

Incognito - I'm sorry, but I have to disagree with much of your analysis.

Firstly, about "taking the option off the table." Our sages had an option which we don't, practically speaking, have - keeping a law on the books, but rendering it totally meaningless. They restrict the application of the Death Penalty so severely as to make it impossible to apply, but they could still (and, indeed, had to) leave it as formal legislation. But, so long as the law is on the books in America, it can and will be applied. So, we have to ask ourselves which part of the equation is more important (to our sages, and to us): the message inherent in having a legal Death Penalty, or the drive to never apply that punishment. I'd argue that we, unlike them, can't have both.

And, I think that your "prisons are dangerous, too" argument is deeply flawed. Prisons are very dangerous, and people do die there. But, not everyone. Not even the majority of people. You make it sound like sending someone to prison is a death sentence by proxy, but I don't believe that is the case. There is a huge moral difference between willfully killing someone, and locking them up, knowing that their deaths are still possible (while still doing what we can to keep them safe, as we should be).

And, not to pile it on, but I also disagree with the statement, "To take away the death penalty in clear cut cases because of mistakes made in less than clear cut cases is also an injustice." I would still disagree, but less vehemently, if we knew which were which - when we should take away the death penalty, and when we shouldn't. But, the whole point is that we don't know. Taking away the death penalty in all cases is the only way to make sure that we also take it away when it might be inappropriately applied, and that makes it an extremely just thing to do. Our society holds that it's better for a hundred guilty people to go free than for one innocent to be wrongly convicted. How much the more so do we need to believe this, when we're talking about Capital Punishment.

I may disagree most strongly with the idea (which, reading your comment again, I'm not 100% sure you intended) that the real solution is to be more accurate. The death penalty would be acceptable, this argument goes, if only we can apply it correctly. Well, that may or may not be true, hypothetically speaking. But, that's so far from our reality that it's barely worth discussing. Human beings are flawed. Everything created by humans is flawed. It is borderline inconceivable to imagine a justice system which is perfect enough to guarantee proper application of the death penalty. Of course, we need to strive to be as perfect as possible. But, striving or not, I don't believe that we'll ever be perfect enough to apply such a terrible punishment.

Incognito said...

Reading your last paragraph you seem to be suggesting that perfection is the standard to apply when the loss of life is involved and it's the community making the policy. Would that be a fair assessment of where you've drawn the line?

Incognito said...

On a completely different line of thought, what happens to your doubts if the murderer confesses?

Rabbi Jason Rosenberg said...

Yes - I'd say that's the standard. If we're going to be taking a life, then we have to be perfect in our system. The smallest imperfection leaves open the very real possibility of taking an innocent life, and that simply can't be acceptable.

I think that the Rabbis would agree. The restrictions that they placed on capital punishment essentially said that "beyond reasonable doubt" or even "near absolute certainty" weren't enough. The Talmud imagines this scene: two witnesses see me chasing someone with a knife, screaming, "I'm going to kill you. My victim and I enter a building, and the witnesses follow. As they enter, they see my victim, on the floor, blood pouring out of a fresh wound and their life expiring, and I'm standing over them, with blood dripping from my knife. In this case, I am still not liable for the death penalty, because there is the faintest, theoretical possibility that I didn't kill them - no one saw it. Clearly, this case is meant to say that the standard for the death penalty is "100%, absolute, beyond a scintilla of a doubt."

As for the case of a confession, I'm still opposed. First of all, I said in my initial posting that I'm opposed to the death penalty in theory, even though I think that the practical arguments against it are stronger. But, aside from that - even confessions aren't iron-clad. There have been false confessions. There have been coerced confessions.

So long as there is a death penalty, there is a chance that an innocent will be executed. And, that's wrong, plain and simple.

msands said...

As a concession to the shortness of life (no pun intended), I'll keep this brief: I agree entirely with the Rabbi's conclusions for the very reasons he provides. And I will confess that it has taken me a very long time, nearly 20 years, in fact, 15 of which I've spent as a practicing lawyer in California, to get there. The idea of placing the power of life and death in the hands of a law court (even one in which a jury sits as the finder of fact) is madness in my mind.