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The death penalty and vengeance: A reply to William Voegeli

I woke up this morning to discover William Voegeli talking about me at National Review:
After Jonah Goldberg applied the case for capital punishment to the Aurora shootings, the liberal blogger Joel Mathis argued that executing James Holmes would serve no purpose other than retribution. Mathis implied that 1) deterrence can’t be part of the death-penalty debate in a case like the movie-theater atrocity, since people wicked or unhinged enough to contemplate perpetrating an unprovoked massacre of random strangers are unlikely to work through any cost-benefit analysis; and 2) there are people who think retribution is “justification enough” for capital punishment, but Mathis isn’t one of them and has a low opinion of those who are.
I think Voegeli inferred just a bit too much here: After all, he's clearly in favor of retributive capital punishment and I think highly enough of him—even if we disagree about many, many things. And more precisely, I wasn't arguing that you couldn't make the deterrence argument in the Aurora massacre—only that nobody, including Goldberg—had made the argument. Colorado does have a death penalty law on the books, after all, even if the punishment itself is rarely used. I can see that rare use being part of a deterrence argument for the death penalty (if only Colorado were more like Texas, maybe this wouldn't have happened?) but as Voegeli suggests, Holmes is apparently unhinged enough that it seems likely he would have killed with or without the threat of being executed as punishment.

In any case, his argument for the death penalty seems to boil down to this:

• Killers who are killed cannot kill again.

• Removing the death penalty from the spectrum of punishment makes it much more difficult to properly end effectively punish crimes of all varieties.

• Murder victims and their families deserve justice that can only be satisfied with a blood-for-blood penalty.

Underlying his argument is the explicit suggestion that without the death penalty, America will become the kind of namby-pamby European state where murderers will be free to walk the streets because we're too squeamish to do the right thing.

Let's take all of this one point at a time.

Killers who are killed cannot kill again. Voegeli doesn't try to argue that the death penalty deters murderers, but that it will deter recidivism. "Thwarting careers in crime is a big part of the criminal-justice system’s mission, and studies consistently show that executed murderers have lower recidivism rates than incarcerated ones," he writes. (I assume there's some tongue-in-cheek here; executed murderers are incapable of any activity, much less committing new crimes.) Voegeli continues: "However, if — a big if, but a theoretical possibility — we can imprison people in ways that guarantee they will pose no threat to anyone inside the penitentiary (or outside in the case of an escape), then every justification for capital punishment has been discarded."

It appears Voegeli's effort here is to place the burden of perfection on death penalty opponents: If you can guarantee that a murderer will commit no harm, inside or outside of prison, then maybe we don't need a death penalty at all—but of course, no such guarantee can ever be made, and I won't try to make it.

This argument also implicitly flips one of the central critiques of the death penalty system as it exists in the United States today. (Or, one could say, systems, since each state with a death penalty has its own, possibly unique, version of the process.) The critique says that the death system is wildly imperfect, to the point that it produces wildly unjust results: You're more likely to be executed if you're black, or poor, and so on. And we've seen that the sentence of death--if not the execution itself--is often applied against people who turned out to be entirely innocent of their crimes.

If we're pitting imperfection against imperfection, then, my bottom line is this: It's much easier to isolate convicted murderers both from society and from general prison populations—maybe a death row without the death?—than it is to construct a death penalty system that is fairly applied and which does not pose the likelihood of itself killing innocent people.

Removing the death penalty from the spectrum of punishment makes it much more difficult to properly end effectively punish crimes of all varieties.  This argument takes several forms in Voegeli's piece. He suggests the existence of a death penalty makes it easier for prosecutors to have leverage to get convictions and pleas from murderers. More expansively, he suggests a slippery slope, where ending the death penalty here will lead to scenes like the one in Belgium, where a woman recently exited prison after just 16 years. Her crime: Starving two young girls to death; those girls had been sexually molested by her husband. It's ghastly.

Voegeli writes: "The court’s decision effectively tells Belgians — including the murdered girls’ families — to get over it: Yes, what happened to those poor girls was dreadful, we’re terribly sorry and all that, but it was a long time ago, and since nothing will bring them back we should all get on with our lives. The continued punishment of people who, in the experts’ opinion, pose no further threat amounts to nothing more than retribution — in this view, an unacceptably primitive motivation."

Well. I'm against the death penalty, and I'm against this woman being free on the streets of Belgium. Maybe this is the place to explain that I'm not against retribution as a component of all punishment; I can't speak for other death penalty opponents, perhaps, but I'm a firm believer in "you do the crime, you do the time." I suspect that a lot, probably most Americans, are the same way. It's just that I believe that retribution that kills people is a bridge too far; I'm simply  not inclined to grant government the power to kill its citizens with premeditation. But I believe that a death-penalty-free penal system in America would probably have an American flavor, one that still believes in making people suffer and pay for their sins. And I'm OK with that.

Voegeli elaborates on this theme: "Before America decides to emulate the enlightened nations that have abolished capital punishment, we should ponder the fact that such enlightenment culminates in the aversion to any punishment. Saw off the top rung of the penal ladder and there’s no good reason not to remove the one below it, and then the next."

While repeating that I'm OK with punishment-as-retribution, I also can't help but look at this suggestion and think it a good thing. America houses nearly one-fourth of the entire world's prison population; that's a statistic that, to me, suggests we're wildly over-incarcerating people. I don't think that ending the death penalty implies an overall rethinking of our punishment structure, but if it does, well, maybe that's a feature instead of a bug. I can believe in punishment and still believe we're doing too much of it; they're not mutually exclusive ideas.

• Murder victims and their families deserve justice that can only be satisfied with a blood-for-blood penalty. Voegeli writes that without the death penalty, "government echoes and validates, rather than drowns out, criminals’ assertions about the irrelevancy of their victims’ rights, and the concomitant derision of the survivors’ grief. 'I believed this would not happen,' said the father of one of the girls Michelle Martin’s husband murdered. 'If Martin gets an early release, then who will they keep in prison?'"

To be honest, though, this is the toughest argument of all to answer, because it gets at something more visceral than any bullet-pointed blog can affirm or refute. If the father of a dead little girl needs to see the murderer killed in order to feel that justice has been done, how can I persuade him otherwise? I'm not sure I should even try. I can't imagine that loss; I can't imagine how I'd react. I won't be the person to tell this or any such man that his reaction is "wrong."

As Voegeli notes, however, it is not the girl's father who imposes the death penalty, but "the people" acting through the government. That's a structure that, among other things, makes our judicial system something both more and different from a lynch mob or an aggrieved family. There's deliberation involved; the rights of the victims and (yes) the perpetrators are taken into account, but also the good of the broader society; the end result tells us not just about the crime, then, but about society itself and what it values. You'll never do away with the state's capacity for violence--you probably shouldn't, at least entirely--but my own preference is that that capacity be as constrained as is possible. In my ideal world, the death penalty would fall outside those constraints.

Voegeli concludes: "If opponents of capital punishment want America to join in rejecting retribution, they should make something clear: Does their campaign stop once the death penalty is abolished — and, if so, on what basis can wringing every trace of retribution out of the criminal-justice system be limited to abandoning executions? Or is the goal to follow such moral sensibilities to their logical conclusion, rendering American justice indistinguishable from the kind provided in Belgium, Scotland, and Norway?"

As I say, I'm not against retribution as such--only capital retribution. And I reject Voegeli's slippery slope argument of Europe being the likely end-state of a death-penalty-free America; the character of Americans and Europeans is simply different in this regard.

With all of that said, Jonah Goldberg's original column purported to make a case for the death penalty, but really made more of an un-case: "Why not kill this guy, James Holmes?" My response boiled down to: "Well, you can, but that doesn't make the death penalty system itself right or just." Voegeli makes a much stronger philosophical case for the idea of the death penalty system; my ultimate problem is that in the real world it isn't--and probably can't be--so well applied.

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