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Duly Noted

Wednesday, Sep 21, 2011, 1:37 pm

Troy Davis and Arguments Against the Death Penalty

By Lindsay Beyerstein

By faul, Creative Commons.

By the time you read this, Troy Davis will probably have been executed for a crime he probably didn't commit. (Update: At 11:08pm, Wednesday, Dahlia Lithwick of Slate reported that the state of Georgia had executed Troy Davis.)

Amanda Marcotte of Pandagon argues that, from here on out, death penalty abolitionists should focus on procedural arguments against the death penalty, as opposed to simply asserting that the death penalty is wrong. To change minds on capital punishment, we should stress that the justice system is fallible, racist, and classist and that it's foolish to give such a system the power of life and death.

Amanda's probably right about how to sway undecided voters on this issue. But I don't think that procedural objections to the death penalty are actually the strongest arguments.

I think the risk of killing an innocent person is a good enough reason to scrap the whole concept of judicial executions, but that probably only seems persuasive to me because I have a strong aversion to the state executing anyone. If I thought that the death penalty was synonymous with justice, I'd wave those concerns away.

The vast majority of people who are executed did all the murdering, raping, and mutilating they were found guilty of. The justice system makes mistakes in sending people to jail, too. That's unfortunate, but it's a cost of doing business. The answer is to make the system fairer, not to embrace across-the-board prison abolitionism. You can't give someone back the years that were wrongly taken from them any more than you can bring the back to life from a wrongful execution. We can commute death sentences, of course. But surely, more innocent people have died in prison than have been wrongly executed.

When I ask myself why I'm really against the death penalty--not just what I think other people will find persuasive--my bottom line is this: The state should only kill when it's absolutely necessary. Amanda's recent essay in The Guardian about Rick Perry and the death penalty points out the connection between gratuitous state-sponsored violence and demagoguery in general.

If police sharpshooters take out a gunman who's spraying a crowd with bullets, that's a necessary use of violence. But making a big show of executing the gunman, years after the fact, when he no longer poses any threat is not necessary. I'm against the death penalty because I don't think the state should be in the business of killing for psychological gratification. That's what executions are, killing to make some people feel better.

Amanda's essay in the Guardian captures the ugly showmanship that keeps executioners in business. This isn't about justice, it's about spectacle:

Once you have the right to kill people, the voters start expecting semi-regular bloodshed as proof that you're doing your job, creating incentives for prosecutors and politicians to cut corners to get those voter-pleasing cadaver numbers up. Each new generation of prosecutors and politicians feels pressure to "best" their predecessor in the number of executions carried out, lest they face accusations of being soft on crime.

We don't need to execute criminals to keep the community safe. We're perfectly capable of locking them up indefinitely. Unfortunately, some people do have to be permanently sequestered from society because they're dangerous. Keeping us safe from those people is one of the most important functions of the state.

Proponents of the death penalty insist executions are retribution, not revenge. Retribution is a fancy word for revenge in proportion to wrongdoing. It's not just making someone else suffer because you're hurting, it's inflicting the precise amount of misery that supposedly restores the moral order.

Even if you're sympathetic to a retributive model of justice, the idea that only death is "enough" retribution for certain kinds of murders is arbitrary. It's not obvious to me that execution is in fact worse than life in a SuperMax prison without the possibility of parole. What's a worse punishment: execution, or torture until natural death? Well, solitary confinement is torture.

What constitutes the correct amount of retribution is impossibly subjective and squishy. There are some goals of state-imposed punishments that everyone can agree on, and we'd do better to stick to those, namely, to deter crimes and to isolate predators from society. We can accomplish those without the death penalty.

Executions don't deter murders any more than the prospect of life without parole. So what's the point?

The irony is that the same logic that drives the death penalty is also behind a large percentage of murders. The idea is that some transgressions are so bad that they can only be settled by blood. Encouraging people to think that their pain isn't honored and avenged unless the perpetrator is killed probably makes our society more violent on the whole, not less.

There's a chicken and egg problem. Do people demand the death penalty because they're steeped in that value system in their personal lives? Or does the state's example shape people's expectations about what constitutes justice? Probably some of both.

I've never seen any evidence that families or communities heal faster or more completely from crimes when the perpetrator is executed than when s/he gets life without parole. The idea that the death penalty provides better "closure" is an untested nostrum.

The actual procedural course of an execution delays closure for years. If someone is sentenced to life in prison, the family can hear the sentence at the end of the trial and go back to their lives. Whereas, it takes years and innumerable appeals to actually execute someone. The appeals process isn't optional. Friends of the death penalty should be grateful for the exhaustive appeals process because nothing delegitimizes the death penalty in the eyes of the public like executing the wrong man.

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The Nation, Ms. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times' City Room. She also blogs at The Hillman Blog (http://www.hillmanfoundation.org/hillmanblog), a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.

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