Ross Douthat's confounding argument against banning the death penalty

Ross Douthat's column in today's New York Times—when did he get moved to Sundays?—attempts, I think, a form of moral sophistication but instead falls prey to silliness. His argument (I think) is that banning the death penalty would be really bad—because life in prison is really bad, maybe even worse than being executed, and in any case might cause prison reformers to take their eye off the ball.

But there’s a danger here for advocates of criminal justice reform. After all, in a world without the death penalty, Davis probably wouldn’t have been retried or exonerated. His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.

Well, maybe. But ... he'd still be alive.


Ah, Ross argues, but life in prison would be a fate worse than death.

This point was made well last week by Pascal-Emmanuel Gobry, writing for The American Scene. In any penal system, he pointed out, but especially in our own — which can be brutal, overcrowded, rife with rape and other forms of violence — a lifelong prison sentence can prove more cruel and unusual than a speedy execution. And a society that supposedly values liberty as much or more than life itself hasn’t necessarily become more civilized if it preserves its convicts’ lives while consistently violating their rights and dignity. It’s just become better at self-deception about what’s really going on.

We can't ask Troy Davis if he'd rather be dead or alive and in prison, but I suspect he'd prefer the former. I imagine his family would prefer him living, as well. And we wouldn't be wondering right now if the State of Georgia and the Supreme Court of the United States were essentially indifferent to questions of innocence when it comes to the rights of death row prisoners.

But Ross is correct, from what I can tell: Prison is hell. Is it worse than death? At the risk of being glib, an awful lot of prisoners aren't committing suicide, so I'll presume that the vast majority of them think that living is preferable.

Let's put aside Ross's obtuseness regarding the execution of potentially innocent life—I don't think he brooks many excuses when it comes to abortion—the real fundamental problem here is his assumption that we can't walk and chew gum at the same time. Hey: We can work to ban the death penalty because it's an unreliable yet irrevocable form of justice and work to reform prisons and our sentencing culture at the same time. There's no reason we can't do both! And indeed, justice may demand that we do so. Ross Douthat's position is that we have to choose which injustice to correct. We should try to have it all.