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Ľ A Proposal to Change the Death Penalty ę


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A Proposal to Change the Death Penalty

This essay appeared in The Ethical Spectacle in December, 1997. Iíve made a few small changes to reflect the new venue and the time that has past, plus a couple of small additions, but itís mostly as originally written.

I oppose the death penalty. I am by no means an expert on the laws or the detailed history of the death penalty, but this is not an issue where such expertise is necessary. I feel the way I do for what are probably common reasons, but also for reasons that might be less common.

First of all, Iím not a killer. I do not hunt, although Iím not opposed to others hunting to put food on the table. I rescue mice from my cats and donít even kill bugs if they are not actively terrorizing me. And I have no desire to kill anyone, nor to be a party to doing such a thing. That doesnít mean that I am a pacifist, far from it. Anyone who has explored these pages will understand that. I wouldnít hesitate, not even for a moment, to try to defend myself or someone else, even to the point of killing the assailant(s), should that be the only way to stop an assault that could cause death or serious harm. However, that isnít the same as wanting to end someoneís life cold-bloodedly and premeditatedly, as is done in an execution.

Itís not out of feelings of sympathy that I oppose killing people who commit the kinds of crimes that garner a death sentence. Anyone who commits these heinous acts probably deserves to have his or her life taken away. And that leads to the second reason I oppose the death penalty: can we ever be absolutely sure that the person on death row is guilty? Someone is, at least in theory, convicted because a jury is convinced beyond a reasonable doubt that he is guilty, but when a person is executed, it is done with absolutely no doubt at all. Iím uncomfortable with the disparity between the levels of certainty in the two situations. In my way of looking at things, it is as much an unpardonable crime to execute an innocent person as it is to criminally murder someone. The existence of the death penalty in a situation when there isnít absolute certainty of guilt always admits the possibility of executing the wrong individual. It is irremediable; the later discovery that the convicted person did not commit the crime cannot result in freeing and compensating the person after the error is discovered. The grave is permanent.

There is an unfortunate history of racism and other prejudices in the US that has led to the fact that minorities, especially Blacks, are executed out of proportion to their share of the population. Further, for a given crime, a non-white is more likely to be sentenced to death than a white. I find this an intolerable situation. Even if every Black person executed were guilty and deserved it, the fact that it is not done even-handedly, over all racial and ethnic groups, condemns the death penalty process. This is my third reason for opposing the death penalty.

The fourth reason I oppose it is, to me, the most important. I donít want to have government in the death business. I donít want my taxes to go toward creating a class of hooded, anonymous killers. Nor do I want to see medical professionals perverted by involving them in the supposedly more humane execution method of lethal injection. If I were a religious person, it would probably bother me to see members of the clergy involved in state murder, as well. It all reminds me too much of Nazism and Stalinism. Mouthing words about democracy and the Declaration of Independence doesnít make the monstrosities of past death camps qualitatively different from the death-dealing of federal and state governments in this country.

Why was no one from any government agency charged in the deaths of eighty-some Branch Davidian men, women and children in Waco, Texas? Why did the federal government not charge any of its agents for killing members of Randy Weaverís family at Ruby Ridge, Idaho, after the FBI had entrapped Weaver by pressuring him into committing a crime and then arresting him for it? (It was gratifying to hear that an Idaho prosecutor filed manslaughter charges against FBI agent Lon Horiuchi for killing Vicki Weaver, even though the feds later forced the charge to be dropped.) I think itís because there is a public mindset, long inculcated, that if agents representing a democratically elected government kill someone, it is somehow, ipso facto, different from when a criminal kills someone. I disagree. Mightnít situations like these occur less frequently if all levels of government were formally taken out of the death business?

The Other Side

Many people, probably a solid majority, support the death penalty. They are sick of the awful crimes they read about and see on television every day, not to mention what they see in their own neighborhoods. They want such a penalty, I think, not only for a deterrent and a punishment, but also to exact revenge on the perpetrators. Is this wrong? I hesitate to make a negative judgment on this issue lest it prove hypocritical if I should suffer the loss of a loved one to rape-murder-torture-mayhem-crippling, or if I should suffer some of the above myself. I donít know how I would feel under those circumstances. Are you certain how you would react? Should the majority be condemned for feeling this way?

Many are overwhelmed with sympathy (or perhaps some kind of guilt) not just for the victim of a crime, but for the criminal. The reasons given are that he (or she) had a bad childhood, grew up poor, is a member of a discriminated-against minority group, never had a chance in life, is full of ďrage,Ē etc. I, however, am not. However much sympathy I might have for a person, for all of the above reasons, the person removes himself from the sympathy zone by becoming a criminal and hurting others. Feeling otherwise, I think, would be an insult to the great majority of people who come from similar circumstances and do not become criminals. The perpetrator may once have been a victim of society, but by choosing become a brute (and I do think that there is choice here), he or she has been transformed out of the victim category. In short, I think that those who are going around brutalizing others, either deliberately or as an aside to other crimes, have become monsters and ought to be separated from society for as long as they are in that condition.

Death penalty supporters would want to execute such people when they are convicted of severe crimes against innocent people. Are they wrong? I donít know, but I donít want my tax dollars to make me a party to killing them.

Whatís the solution?

Trying to get rid of the death penalty when it has such social support is like building sand castles to stop the rising tide. Itís a waste of effort. So how can those who want the death penalty be satisfied and those who oppose it, at least any who feel that way for the reasons I do, also have some satisfaction?

I would propose that when a person is convicted of a crime that would legally qualify for the death penalty, that executing the person by any level of government be abandoned. In its place, the personís life should be awarded to the victim, or to a survivor of the victim, or another aggrieved individual. That person must then either personally execute the convict or remand him or her to the penal system to serve a sentence of life without the possibility of parole. Of course, the aggrieved person would have to do the deed in a manner that excludes torture. There would undoubtedly be other safeguards to work out, as well.

Some would say that this proposal is barbaric. I might agree, but I find it less barbaric than state murder. Further, it satisfies certain other criteria which make it superior to existing death penalty laws.

  • The responsibility for the death of the convicted criminal is totally that of the individual executioner; the rest of us are out of the loop.
  • The actual execution involves a true moral choice on the part of the executioner. It would not be done by some secret, sterile governmental process, by people hidden from the light. The person either would or would not do it and would have to live with the consequences.
  • The desire for revenge upon the criminal, both by the aggrieved person and by larger elements of society, would be satisfied. I think this would be the case whatever the decision the person to whom the criminalís life was awarded. Once the decision was made personally by someone who had suffered at the hands of the criminal, it is probable that even those others who support the death penalty and the idea of revenge would feel that justice had been served.
  • The social dilemma of society having killed an innocent person would be resolved, because society as a whole would not be executing anyone. More on this later.
  • The deterrent effect of severe punishment would still exist. A criminal would know that a person whom he had harmed would have the last word, and that he might have to look into the eyes of that person as he or she pulled the trigger.
  • Either outcome would result in the criminal being permanently separated from society and not allowed to make any more victims.

Why did I emphasize the word personally above? It wasnít just to get the act removed from the government and relieve us from the burden of being silent participants. There is another reason. The size and complexity of society today, after the history we have had, has resulted in too many things being done in a faceless, bureaucratic manner, by people involved only by virtue of the fact that they are paid a salary for doing them. Individuals might or might not care about what they do, but that has become incidental to the machinery of society. It is time to start making things more personal again. There is a need to put a brake on the growing alienation of people today, to end the feelings that they are not really involved in society, not really in control in their so-called democracy, that nothing really matters anymore.

Even if this kind of justice is barbaric, it would be no more barbaric than what we have now, and at least it would be a real, human kind of justice. Today, there is little justice for victims and the survivors of victims; everything is out of their hands. Nothing, outside of perhaps a rare little bit of monetary compensation, is ever done for them. In the area of justice, as well as other areas of life and government, it is all done in the name of society. This must change, and my proposal is one small step in that direction. It is putting an element of humanity and control back into the hands of the citizens, where the moral choices of the individual can matter, even if that moral choice is for revenge.

Loose Ends

There are, indeed, some loose ends. Foremost among them is one of the major objections to the death penalty I raised at the beginning of this essay Ė what about killing a person who turns out to be innocent? Nothing in my proposal cures that problem. True, society as a whole would not be doing it, but it could still happen. The only true cure for this is to abolish death as a punishment entirely and thatís not going to happen soon.

Short of complete abolition, the next best thing is to create a disincentive to executing innocent people, those about whom there is any doubt whatsoever of their guilt. That disincentive is to make executing an innocent person, even by the person to whom the criminalís life was awarded, a crime of premeditated murder, with mechanisms in place to be certain that new evidence of innocence gets presented. This would assure that such decisions would not be taken lightly. You can have your revenge, but youíd better be right. Revenge can have its cost, also.

Other loose ends are:

  • How would the whole business would be carried out? Since the idea is to get government out of the killing business, having the physical apparatus of execution set up somewhere, where the executioner need only throw a switch, is out of the question. The person doing the killing would have to supply the means.
  • What means would be allowed? Guns? Swords? Guillotine? Ropes for hanging? Poison? Syringes for lethal injections? There is room for discussion.
  • Where would it be done? Or, more broadly, would the fact that it would be a personal event mean that it would be a private event, out of the public eye? Should it be done in the personís back yard? in a prison? in the town square? on television?
  • Who would supervise to prevent wrongdoing, such as torture?
  • Is it to be a social event, to help involve people in the process of criminal justice?
  • What if the victim or most aggrieved survivor is not physically able to execute someone, even though he or she wishes to do so? May that person appoint, or even hire, a substitute?
  • What if there are multiple survivors? Who gets to execute the criminal? Who chooses? May they do it collectively, à la Murder on the Orient Express?

There would be many things to be worked out, but it could be done, and would be a step forward, if a modest one.

September 4, 2007

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