Death Penalty Opponents Must Stake Out the Moral High Ground in All Capital Cases

Image credit to National Review Online

On Friday in the National Review, editor-at-large Jonah Goldberg threw down the gauntlet for opponents of the death penalty, suggesting that the strategic tendency to cherry-pick sympathetic death row inmates undermines the legitimacy of the anti-death penalty message. That is to say, in order to oppose the death penalty in the United States with moral coherence there not only needed to be picketing for Troy Davis, but also for Timothy McVeigh and the other certainly guilty people that have been put to death. In short, he writes that “until [death penalty opponents] can explain why we shouldn’t have a death penalty when uncertainty isn’t an issue…they’ll never win the real argument.”

Goldberg makes a fairly reasonable case; he writes that he is “100 percent opposed to killing people who do not deserve it,” and that executions should only be carried out in cases where the degree of certainty approaches 100 percent. Therefore, the death penalty is morally permissible in cases such as McVeigh’s, where he confessed to the murder of 168 people. The Troy Davis case is troubling primarily because his guilt was uncertain. However, Goldberg argues that the use of the death penalty on Troy Davis has no real bearing on whether or not an admitted murderer can be legitimately executed. Furthermore, Goldberg cites C.S. Lewis, and admits that the deterrent effect of the death penalty ought to be discarded, as killing a man to teach society a lesson is clearly morally bankrupt.

Cameron Todd Willingham

However, here is why Goldberg is wrong. The issue is not that there are isolated cases where the death penalty may have been improperly applied; it is that there are cases where it is certain that the State has wrongfully executed an innocent man. In Texas, Cameron Todd Willingham was executed on February 17, 2004 for an arson that killed his family. Willingham was almost certainly innocent, vindicated by the work of journalists and experts who reevaluated forensic testimony given during his trial. In a 2009 piece in the New Yorker David Grann presented many of the flaws in the Willingham case, leaving one with little doubt that a serious misapplication of justice had occurred.

Clearly ignorant of this case, Jonah Goldberg writes that to discover that an innocent man had been executed would be a “heart-wrenching revelation,” that would cast a pall over the American justice system.

Goldberg’s emoting is entirely inappropriate, especially given that he doesn’t seem particularly broken up about innocents already executed. Besides, a car accident is heart wrenching. The death of a dear friend is heart wrenching. The execution of an innocent person by the State is cause not for sadness, but for serious outrage. Even one innocent death means that the government is demonstrably unable to apply justice consistently, and cannot be trusted with the power over the life and death of its citizens.

The simple fact of the matter is that there have been significant failures on the part of state governments, and this revelation ought to throw the entire system of legalized death in the United States into question. And it isn’t just the level of certainty with which the executed are believed to be guilty. In the case of Willingham, Governor of Texas Rick Perry has been arguably complicit in impeding inquiry into whether or not there was a miscarriage of justice. In California, rapist and murderer Albert Greenwood Brown was sentenced to death, only to have his execution stayed as the courts considered deficiencies in the lethal injection process. However, California’s supply of sodium thiopental was set to expire, and officials attempted to rush the execution before they ran out, and had to purchase more (a difficult task as there is only a single manufacturer in the United States). The Ninth Circuit Court of Appeals noticed, writing that it is “incredible to think the deliberative process might be driven by the expiration date of the execution drug.” I would think so. This is clearly indicative of a systemic problem that is endemic to the capital punishment mechanism in the United States.

To uncover such flaws in the system is merely the first riposte to Goldberg’s argument; the larger point is that inmates currently on death row deserve a reevaluation of their positions, based on the continuously forthcoming DNA evidence that has played a role in so many exonerations. Admittedly, it has also affirmed the guilt of many offenders, but this is not particularly problematic and even strengthens the legitimacy of the State in continuing to hold them.

Once it can be safely asserted that there are no guilty persons on death row, we can confront the main thesis of Goldberg’s piece, which is that the guilty people are still deserving of execution. After dismissing the deterrence factor, Goldberg asserts that the purpose of the death penalty “is just to execute a person who deserves to be executed.” Rephrased, this basically means it is “eye for an eye” style justice, and state-sanctioned revenge. The question in this case is whether or not this is an acceptable role for the state to fulfill.

On the question of revenge, it seems to me as though watching a doctor depress the plunger through the glass to the viewing chamber isn’t really revenge. It’s a dilution of revenge; if the whole procedure were about revenge, the families of McVeigh’s 168 victims would each get to press the plunger down a little bit. If Goldberg truly believes that the system of capital punishment in the United States is about settling a score, then he should be advocating for extensive reforms to the entire system so that those who are searching for closure are the ones that draw the curtain at the end of the trial.

But, since that is unlikely to be the case anytime soon, we are left with the fact that the State is carrying out retributive justice in the name of the victims. However, to say that it is simply about closure for victims is disingenuous, because it is the American taxpayer who is footing the bill. Victims did not solely finance the prosecution; they did not pay for the last meal, and they certainly are not purchasing the lethal dose of the chosen barbiturate that is injected. The revenge enacted by the State is one that necessarily taints the entire taxpaying population, and every American is complicit in each execution, whether the deceased is innocent or guilty.

Finally, the use of capital punishment ought to call into question the very role that government ought to play in society, and to what extent Americans are willing to give the State a monopoly over life and death. There are clear compromises made on this question; police officers necessarily carry deadly weapons because they are essential to their work in the protection of a free society. However, the execution of a criminal who is already contained in a high level of security poses no real threat to society is a perverse distortion of this bargain between state and citizen. This passive action by the State is a watered down incarnation of the monopoly on violence held by government, and it is extensively tainted by the pseudo-medicalization of death contained within the sterile walls of the execution chamber.

The association between medicine and death, specifically through its perversion when utilized as a mechanism of punishment or eradication, has worrying implications that exist separate from capital punishment. The relationship between medicine, the state, and death is exemplified by the actions of the Third Reich. The medicalization of death as a justification for it is a very clear step in the progression towards genocide. This line of argument puts us very much at risk of violating Godwin’s Law, but the point stands that there are concerning intellectual trends deeply entangled with the execution process when medicine becomes involved.

Roy Willard Blankenship

As a response to Jonah Goldberg, the arguments against capital punishment in the United States hinge on whether or not the State has a justifiable role in revoking life. The answer, for a multitude of reasons, is clearly no. The State is demonstrably unable to consistently attain an acceptable level of certainty of guilt, and has been complicit in clear miscarriages of justice. Not only that, but a decent list of executions exist that have been so badly botched that they border on the cruel and unusual. After switching to pentobarbital as sodium thiopental became scarce, Georgia executed Roy Willard Blankenship on June 23, 2011. Blankenship’s attorneys argued that the new drug was untested, and would likely lead to pain and suffering during the execution. Indeed, for the first three minutes of his execution Blankenship spoke inaudibly, moved around and twitched against his restraints. All total, it took him nine minutes to die on the bed.

These arguments are, frankly, clear-cut. Goldberg’s insistence that capital punishment is simply about revenge is limpid, as the effect is diluted through the state’s mechanisms and the decades spent on death row. Not to mention that the State should have no place in the revenge business. It’s a barely civilized reaction to brutal crime, and is one that belongs with Hammurabi, and not modern America.


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