What is left of the moral force of abolitionism -- the idea that there is never, ever a case where the jury should be able to impose capital punishment -- in light of the Boston Marathon bombing verdict?
Nothing, as far as I can see.
The major objections to the death penalty were never in the case to begin with: Guilt was certain, race was absent, mental competence not even in question. It had honest and professional prosecutors, top-flight defense counsel, a seasoned and balanced judge, and ample resources for all.
So what's left of the moral case for abolitionism?
Three arguments I'm able to think of. None of them works.
1. "I'm against the death penalty on principle."
This one falls apart as soon as you ask what "on principle" means. It could mean two things.
One is that killing is always wrong. The problem is that virtually no one actually believes this. Every civilization on earth permits its citizens to kill in self defense. There simply is no principle that point-blank forbids killing; there is, instead, a strong presumption against it, and stern but answerable questions about what the justification is.
The second is that state killing is always wrong. But, with the exception of dead-end pacifists -- the kind that were always hard to find and harder still after 9-11 -- no one really believes that either.
The most obvious and sprawling, but not the only, example proving the opposite is war, which kills exponentially more people than our death penalty ever has. Government sponsorship of space flight is another; it was essentially certain that people would die on the way to, and during, the quest to get beyond the earth's atmosphere, but the rewards, even if only in discovery and imagination, were almost universally considered to be worth the candle.
Much the same is true with experimentation to develop new medicines; with government-sponsored and regulated commercial transportation (in the air and on the rails); and even with mundane things like road design and setting high speed limits on the interstate. The government (and the rest of us) knows in advance that all these things will result in the deaths -- deaths of hundreds or more likely thousands of innocent people. We accept it because (a) we understand that all these decisions, though lethal, involve trade-offs rather than absolutes, and (b) we think the trade-offs are worth it for what we get.
Bottom line: The "I'm against it on principle" argument is a high-sounding generalization that falls apart under examination.
2. "The death penalty is barbaric."
This is simply false. It was supported and used by Washington, Lincoln and FDR, among others. It was built into the Constitution by the Framers. Out of 112 Supreme Court justices, exactly 4 (Brennan, Marshall, Blackmun and Stevens) have viewed it as per se cruel and unusual. So far as is known, not a single sitting Justice finds it unacceptable even under "evolving standards of decency." The Court's most recent addition, Justice Kagan, made this clear in her confirmation hearing testimony.
The American people support the death penalty. According to Gallup, capital punishment has had the support of 60% of the people or more for at least the last 40 years. Thus one can view the death penalty as barbaric only if one views the decided majority of the American people as barbarians.
Most of the world has the death penalty, including culturally advanced countries like Japan, India, South Korea and, of course, the United States (for all but four years of its history). Other advanced countries like England and Canada would have it too, if public rather than elitist opinion told the tale.
And by far the most prevalent method of execution, lethal injection -- while hardly flawless -- for the most part kills the inmate with moderate pain to none at all.
3. Religion forbids the death penalty.
This too is false. One may assume arguendo that the Catholic Church at present opposes the death penalty, although that is a matter of considerable debate. But to say that is to begin, not end, the inquiry.
First, the Catholic Church does not represent all or close to all religion, in the United States or throughout the world. In the United States, Catholics are about a quarter of the population, meaning that three-quarters of our people do not follow Catholic teaching. And lay opinion among Catholics concerning the death penalty is split (as it is, for example, concerning birth control).
Second, other Christian religions, plus Islam (which has more adherents world-wide than Catholicism), Oriental faiths, and traditional Judaism all accept the death penalty. Catholics represent only 17% of the world's population.
Third, in the United States, it is universally understood that religious doctrine does not dictate secular law. Religion may counsel against the death penalty, and may even do so strongly (although as noted it actually doesn't). But, in a pluralistic and secular country, religion neither forbids nor commands any formulation of public law (although it may in very limited instances be allowed to carve out exceptions to public law, see Hobby Lobby).
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So what is left today of abolitionism? An impulse, maybe. A view that America for all its sins has it coming, and is thus morally disabled from punishing those, like Tsarnaev, who deliver it.
But if that's what abolitionism has come to, it's as dead as Tsarnaev's young victims.
How about the arguments sometimes stated by conservative opponents of the death penalty that citizens should not generally trust government agents to pick winners and losers as to who is to live and die --- especially when the process is very expensive and given a general commitment to a culture of life which views every human life as precious and sees every soul as having a chance at redemption through God's grace and salvation no matter how great the sins?
I bring this up because I agree 100% that many of the modern liberal abolitionist against the death penalty do not work in this case --- indeed, I have made this very point to a number of reporters in the last 24 hours. But I wonder if you are saying here, Bill, that you also think the traditional conservative arguments against the death penalty (and other government programs?) are also "as dead as Tsarnaev's young victims."
Here are some examples of how some traditional conservatives articulate these points from this site: http://conservativesconcerned.org/what-conservatives-are-saying/
“Conservatives have every reason to believe the death penalty system is no different from any politicized, costly, inefficient, bureaucratic, government-run operation, which we conservatives know are rife with injustice. But here the end result is the end of someone’s life. In other words, it’s a government system that kills people.”
Richard Viguerie
“I’m opposed to the death penalty not because I think it’s unconstitutional per se—although I think it’s been applied in ways that are unconstitutional—but it really is a moral view, and that is that the taking of life is not the way to handle even the most significant of crimes…Who amongst anyone is not above redemption? I think we have to be careful in executing final judgment. The one thing my faith teaches me—I don’t get to play God. I think you are short-cutting the whole process of redemption…I don’t want to be the person that stops that process from taking place”
Jay Sekulow, Chief Counsel for the American Center for Law and Justice
As I note in my opening sentence, I'm talking about the MORAL force of the argument that we can NEVER, EVER impose the death penalty.
Supposedly "conservative" ideas about cost and the unreliability of government mechanisms are practical in nature, and thus no answer to the moral arguments in favor of the DP.
For example, it's just silly for conservatives to say (quoting you now), "citizens should not generally trust government agents to pick winners and losers as to who is to live and die..."
The death penalty is hardly "generally." It is an infinitesimal portion of what government does, and is surrounded with more safeguards than any governmental act, ever, including the decision to go to war.
Speaking of which........are these "conservatives" you note against declaring war, too? Should we have let the Nazis conquer the world because, ya know, it was REALLY, REALLY expensive to oppose them, and mistaken military (i.e., government) judgments cost, not a few lives, but thousands?
So do "conservatives" say would should NEVER, EVER go to war, too? Could you name some who say that? Really, I like to see some names and quotes.
"I wonder if you are saying here, Bill, that you also think the traditional conservative arguments against the death penalty (and other government programs?) are also "as dead as Tsarnaev's young victims."
For the reasons noted, it's beyond silly to lump the death penalty with "other government programs." Or does the DP have some secret resemblance to Oceans and Fisheries? I'm getting old, so I might be missing something.
As to conservative arguments against the death penalty in particular -- no, I don't think they're as dead as Tsarnaev's young victims. I think they're deader.
P.S. If you're interested in what mainstream conservatives actually think about the DP, I invite your attention to this morning's Wall Street Journal editorial -- the subject of my most recent post.
Decency evolves: Here is a rationale you don't agree with, but it supports refraining from the use of the death penalty in the Tsarnaev case: As a moral matter, the State should not kill people in cases where it is not demonstrably necessary to prevent serious physical injury or death to others. Tsarnaev is incapacitated and with a life sentence would likely remain so at Florence ADX for the rest of his natural life.
Just curious, Bill: do you think what Sekulow and Viguere are saying are not truly "conservative" positions? (I ask because you put the term "conservative in quotes.) Or do you acknowledge that Sekulow and Viguere are articulating a "conservative" view, just not conservative views that you find compelling in this setting.
Because I am more libertarian than conservative, I am not in a good position to assess what is truly a conservative claim or really just another kind of claim dressed up in conservative clothing.
For the record, as a libertarian, I am generally suspicious of any and all forms of government power, but in this setting the sensible punishment choices appear to be between death and LWOP and, with all the process given here, I am satisfied with either option (especially since a neutral jury with sentencing discretion rather than a partisan prosecutor made the ultimate sentencing choice informed by strong arguments on both sides).
1. I have no particular opinion of how I would label Sekulow or Viguere, nor do I think it matters. I tend to be interested in arguments, not the people or characterizations of the people making them.
2. "I am satisfied with either option (especially since a neutral jury with sentencing discretion rather than a partisan prosecutor made the ultimate sentencing choice informed by strong arguments on both sides)."
Actually, this was a clear-cut case of a prosecutor's "choosing" a MM, and the harshest MM available in American law -- LWOP.
At least, that is how you would have analyzed it up to now.
My view, on the other hand, is and has been that the defendant's provable conduct controls the charge (and the sentence).
If Tsarnaev didn't want a mandatory minimum of LWOP, he could have troubled himself not to shred little boys in a politically-motivated terrorist attack. Having made that decision, the prosecutor merely selected the charge that best fit the behavior.
3. The death penalty existed at the Founding. Washington himself used it. It is not part of Big Government. It's part of the original, very small government.
Decency evolves: the argument I made above is consistent with traditional philosophical and religious arguments against the death penalty, which are not undermined by the Marathon Bombing verdict. One of the twentieth centuries leading anti capital punishment philosophers, Hugo Adam Bedau, expressed this sentiment this way:
"If, as I believe, liberals and conservatives alike accept the principle that government must not use more force than necessary to achieve society's legitimate objectives, then abolishing the death penalty for all crimes ought to have strong appeal. It is impossible to teach respect for human life by acts of unnecessary and to that extent unjustifiable lethal violence."
Hugi Adam Bedau, Abolishing the Death Penalty for Even the Worst Murderers in The Killing State: Capital Punishment in Law, Politics and Culture, at 53
The Catholic Church has echoed this sentiment. Continuing with Paragraph No. 2267 Catechism of the Catholic Church:
“. . . the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor. If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person. Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm – without definitely taking away from him the possibility of redeeming himself – the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically nonexistent.”
For the record, Bill, I am not keen on the mandatory LWOP in this or any other case, nor do I think the Founders would have been. They had death penalty indeed, in part because they likely thought execution was more humane form of incapacitation than LWOP. Even today, I tend to agree.
I am not asking you to characterize the speakers but their contentions. Are they making conservative arguments against the death penalty in the passages quoted above?
1. "For the record, Bill, I am not keen on the mandatory LWOP in this or any other case, nor do I think the Founders would have been. They had death penalty indeed, in part because they likely thought execution was more humane form of incapacitation than LWOP."
Could you provide documentation for that view of what the Founders thought about LWOP? I'm not aware of any. Indeed, I'm not sure LWOP even existed.
But for however that may be, it remains the case, as I said, that the death penalty was within the power of government at the Founding -- the smallest government we have ever had. So I'm just not buying the picture of the death penalty as a creature of Big Government.
2. "I am not asking you to characterize the speakers but their contentions. Are they making conservative arguments against the death penalty in the passages quoted above?"
I have no opinion on that question, and if I did, it would not affect the merits of the argument, which is what I'm going to discuss.
I would be curious, however, what those men would say if asked directly whether the death penalty was just for Tsarnaev. Not whether it was needed, costly or efficient. Whether it was just.
In my opinion, as a conservative and an attorney, the purpose of law and litigation is to give the parties what they deserve. Tsarnaev got what he deserved, so I am perfectly satisfied with the outcome.
In addition, I'm nowhere near naïve enough to fall for the line that paying for this death penalty case is more expensive that paying for about 55 years of Tsarnaev's ultra-high security incarceration would have been, or the line that LWOP would have ended the case and that Tsarnaev would have disappeared from view. As Kent pointed out, that is simply false.
It's not decisive for me whether the death penalty is needed. The decisive question is whether it's just. For Tsarnaev, it is. He is, largely by his own account, a man who hates the United States and is willing to take out that hate on eight year-old's. That the government could get all 12 in Boston, no less, should tell you something.
One more word on need: We don't NEED imprisonment, either. The sky will not fall if we let every single inmate out tomorrow. But it would be shockingly unjust.
Could you honestly say that Tsarnaev doesn't deserve what the jury gave him?
Decency evolves: If we let every prisoner out of prison tomorrow we would be face a great upsurge in crime. Some people cannot exist outside of institutions without wreaking havoc on society. Any lawyer who has participated in the criminal justice system for a considerable period of time can say that with confidence based on multiple personal examples.
As for what Tsarnaev deserves, if all we care about is that, perhaps he should be first maimed, then left to suffer in a hospital, and then blown apart. Perhaps a serial rapist who kills should be raped over and over again before he is killed. If anprisoner puts another inmates' eye out, perhaps we should pluck out his eye in return.
I wouldn't feel comfortable with such a scheme. I'm looking for safety, not payback and I want the State to behave with more compassion than the criminals it punishes. Norway's prison system has been described as radically humane:
http://www.nytimes.com/2015/03/29/magazine/the-radical-humaneness-of-norways-halden-prison.html?_r=0
If it is radically successful, that satisfies me far more than a system that is far more punitive but less successful. For me, doing what is necessary to protect society is sufficient. Retribution holds no allure for me.
You avoid a direct answer to the question whether Tsarnaev deserves what the jury gave him by an overwrought fantasy that does not resemble any sentence that exists in the United States. It makes stirring reading, I guess, but evasion is still evasion.
So I will ask again: Does Tsarnaev deserve the penalty (death by lethal injection) the jury gave him?
P.S. There has never been a "botched" lethal injection in the history of federal capital punishment.
P.P.S. Retribution might hold "no allure" for you, but it is a legitimate goal of sentencing according to every relevant Supreme Court case I have ever read.
Decency evolves: Don't we deserve to have done to us what we do to others? Isn't that the simple principle behind the Code of Hammurabi? The notion of just desserts tells us that if I injure another, I deserve to be injured myself. By that logic, if I hit someone with a car and that person dies--whether I did so accidentally, negligently or intentionally--I should be run over and killed by the victim's closest family members myself. So if all we are asking is what Djokar Tsarnaev deserves, he deserves to have the relatives of his victims blow his leg off in an a explosion, then recover and then be blown to smithereens himself.
For me, what Tsarnaev deserves doesn't answer the question of what the United States government should do to him, for all the reasons I've stated. I haven't said anything about lethal injection on this or any other site--it's not an area with which I have expertise, at least not yet, thankfully. I am familiar with the Supreme Court's jurisprudence on retribution and the death penalty.
LWOP is a modern creation, Bill, so I suspect the framers did not have reason to think much about the prospect of caging offenders like animals but keeping them alive and caged as long as possible. But Patrick Henry motivated a lot of Founding era folks with his stirring assertion ""Give me liberty, or give me death!" That leads me to believe the framers likely would have viewed LWOP to be a punishment worse than death.
In addition, the framers put the 8th Amendment into the Constitution and they surely were not trying to outlaw the death penalty nor even painful execution methods, so I suspect extreme long terms of incarceration might well have been a kind of "Cruel and Unusual" punishment the framers would have frowned upon.
1. "For me, what Tsarnaev deserves doesn't answer the question of what the United States government should do to him, for all the reasons I've stated."
Yes, I understand that, but humor me and tell me what you think he deserves.
2. Do you believe in punishment? That is not a smartass question. From what you've been writing, my guess is that the answer, at least as respects the criminal justice system, is "not so much." But I'd be interested in knowing.
When someone does something horrifying and the same horrifying thing is done to them a rational person says, "he deserved that." Tsarnaev's actions where horrifying and they produced death. If the very same thing we're done to him, including not simply his death but the lingering pain and disability he inflicted on others, I would say "he deserved that." For me, that doesn't answer the question of what the Government should do to him.
I have mixed feelings on the issue of punishment. Unlike Professor Berman, I'm not opposed to sentences of Life Without Possibility of Parole for all adults who crimes that are sufficiently egregious to merit it. Having the government commit homicides to vindicate principles of retribution doesn't make sense to me, but I understand why someone decides that people who cause sufficient damage should never be at liberty again.
I'm open to the possibility that this could be lousy public policy though, and that exalting punishment over other values could have social costs that may dictate other choices.
Does Norway have a better balance than we do? It may, and while punishment is an understandable and permissible value, it may not be the best one.
Douglas,
Wow, what a HUGE leap of logic to go from "Give me liberty or give me death" to " the framers likely would have viewed LWOP to be a punishment worse than death."
It is also historically inaccurate to see the founders as anti-prison. In fact, America was moving in that direction (towards prisons and away from shaming and the DP for offenses less than the most serious) for most of the previous 100 years. Groups like the Quakers had been pushing incarceration instead of the DP since the late SEVENTEENTH century, a full 100 years before the constitution. In the late 18th century, there were pushes for workhouses (called "bridewells") such as they had in England for centuries. There were numerous examples of jury nullification because people could be executed for minor crimes that jurors saw as overly harsh. Shaming, your other favorite, had fallen out of favor by 1700, as the rise of large cities made it mostly ineffective.
In the years following the Revolution, states were reducing the number of DP eligible crimes and substituting with prison and hard labor. For example, Pennsylvania did so in 1786 and in a few years only murder was left as a DP offense. In 1776, Jefferson tried to revise Virginia law to do the same but failed by one vote.
In short, your premise that the founders were anti-prison is an absurdity and a molestation of history. They were moving from virtually no prisons TOWARDS the prison system, not away from it.
"The design of punishment is said to be,—1st, to reform the person who suffers it,—2dly, to prevent the perpetration of crimes, by exciting terror in the minds of spectators; and,—3dly, to remove those persons from society, who have manifested, by their tempers and crimes, that they are unfit to live in it." -Benjamin Rush, signer of DoI
Does not sound anti-prison to me...
I agree that desert is not the only thing that should count in sentencing. Other goals (incapacitation, deterrence, rehab (if realistically possible)) also count. But desert is Number One.
I'd be interested in whether you think Tsarnaev should drop his appeals in order to save the victims years of having to have this man in their thoughts. I don't know a single person who thinks he has a realistic shot, and it would be the one thing decent thing he could do.
Decencyevolves: His venue claim may go somewhere. The citizens of Boston were affected by his actions in ways that were substantially beyond the ordinary--arguably as serious as the citizens of Oklahoma City in the McVeigh case, where Judge Matsch wisely wisely moved the trial to Denver. I don't second guess defendants who exercise their constitutional and statutory rights to review of the legality of their trials, any more than I begrudge defendants who insist that the State prove their guilt beyond a reasonable doubt. It isn't indecent, in my mind, for defendants, guilty or innocent, to pursue their rights in either fashion and I wouldn't say that they should do so. In short, my answer is no.
He would have been convicted if the trial had been held on Mars. Thus only the question of sentencing venue counts.
There, possible community impact is subsumed in the larger question whether he would have had a better chance to escape the death penalty somewhere else (not that he has any right to the most favorable venue).
The answer to that is "no." Virtually everything I've seen has been to the effect that Massachusetts, and Boston in particular, are as anti-death penalty as anywhere in the country, and in particular favored the DP for Tsarnaev far, far less than the rest of the country.
That, and venue claims essentially get nowhere. If it was OK to try the Watergate defendants in Washington, DC, it's OK to try anyone anywhere. In my 18 years as an AUSA, not once did a venue claim prevail.
I am so sure of this that I'll make you my (now standard) bet of $100 to $1 that, if he makes a venue claim, it loses.
P.S. I think it almost certain that he'll appeal to the hilt. He wants to hurt Amerika, and one more way to do that is put the taxpayers on the hook for the costs of a thumb-in-your-eye appeal. A man who will intentionally shred to death an eight year-old simply lacks anything a normal person could recognize as decency.