This week I began my second year at law school. My enrollment in the Capital Punishment Clinic and corresponding Capital Punishment class are likely to provide quite a bit of fodder for discussion. My political leanings and background fairly guarantee I will occupy the position of lone dissenter among my peers, but should also provide me with ample opportunity to thoroughly talk through my ideas. My hope is that this results in some closer examination of my own beliefs that I can then articulate here.
The U.S. is the only Western, developed nation that still executes its criminals. We occupy that position alongside such beacons of progress and human rights as Afghanistan, Yemen, China, North Korea, and Yemen. And yet support for the death penalty in America remains the majority view, with somewhere between 55% and 63% of all Americans supporting the death penalty for murderers. While the growing prevalence of life without parole seems to be tipping the scales of public opinion away from the death penalty, approximately half of all Americans believe the death penalty still has a place in American jurisprudence.
Justifications for the death penalty center primarily on deterrence, incapacitation, and retribution (rehabilitation is not at issue, for obvious reasons). A strong justification requires a careful balance of all three. However, deterrence and incapacitation are topics for another day. This leaves retribution, perhaps the most morally provocative of the three. In line with the Old Testament, an eye for an eye, many societies and peoples throughout history have believed or continue to believe that the appropriate response to any wrong is for that wrong to be done to the original perpetrator in return. Lex talionis stands for the proposition that the offender should suffer an equivalent injury to that he inflicted.
Lex talionis has particular appeal when justifying capital punishment. Murderers take lives. It seems fair and just that theirs would be forfeit in return (assuming capacity, competence, and lack of mitigating circumstances). This facially reasonable proposition has an attractive simplicity. However, it begins to fall apart quickly when we consider retribution in the context of the criminal justice system as a whole.
To illustrate: we do not use in-kind punishment for most crimes. Indeed, for some, it would be difficult to even identify what in-kind punishment would be. For example, how do you punish a drug user? Or someone who possesses child pornography? A counterfeiter or identity theft? In these instances, perhaps some nebulous approximation of harm suffered, quantified in years or months, is the best we can do for crimes that cannot be committed against the perpetrator in return.
But even when we have the chance to punish in kind, we do not. Historically, capital punishment was not only reserved for murderers—it was the default punishment for all felonies, including kidnapping, theft, assault, treason, or rape. Even in old England, in kind punishment was not the norm. Today, rapists are not punished by being raped, though it would not be difficult to theoretically justify such a practice. Kidnappers are not kept in confinement commensurate with the time their captives were help. We do not torture the torturers. Rather, we approximate the harm suffered into a range of years of confinement. We find it abhorrent, and perhaps we have for a long time, to commit the same heinous crimes we so zealously prosecute, even though it may be easy to reason that such treatment would be just under traditional eye for an eye logic. We cannot stomach being the torturer, but we can stomach becoming the murderer, though even then, we do not kill the murder in the same manner suffered by the victim. All the beautiful simplicity of the principal of retribution falls away when applied to any other crime in our system. And while the principal does not disappear, it becomes much more difficult to defend absent other justifications.
*For more on this topic, see Jeffrey Reiman, Justice, Civilization, and the Death Penalty: Answering van den Haag, Philosophy and Public Affairs, Vol. 14, No. 2 (Spring 1985), pp. 115-140.