It’s broken and it can’t be fixed

Iwas in Bentonville last weekend, participating in a panel discussion on capital punishment organized by former Benton County judge Jon Comstock. Others on the panel were Michael Radelet, a professor from the University of Colorado at Boulder whose research on the effects of capital punishment on survivors (families of the condemned, corrections workers who carry out executions, etc.) I’ve previously cited in this column; Furonda Brasfield, executive director of the Arkansas Coalition to Abolish the Death Penalty; Don Morrow, a pastor at First Christian Church of Bentonville; Sheila Pursell, director of Northwest Arkansas’ Catholic Respect Life Council, and Jay Saxton, chief public defender of Benton County.

If that sounds like it’s a little one-sided, it was—the death penalty proponents Comstock invited declined to participate. That was too bad, because I don’t know what abolitionists accomplish talking among themselves. There are reasonable arguments to be made for capital punishment and we ought not dismiss the feelings of victims’ families, many of whom believe that a murderer’s death might partially requite their pain.

While I’ve come to the conclusion that capital punishment does immeasurable damage to our society, the most convincing arguments against it are pragmatic and conservative in nature: It costs too much, it doesn’t work as a deterrent, or provide much (if any) comfort to victims. All it does is cause problems.

Just witness the past couple of weeks in Arkansas, and the circus that has attended the dubious plans of the state to execute eight men in 11 days.

A former editor of this newspaper was of the opinion that the press shouldn’t take undue interest in executions because they were a routine if solemn function of the government. They were to be reported on, but not accorded the prominence of genuinely newsworthy events.

This was a kind of wishful fiction. Even if capital punishment worked as it is meant to, if it were a sanction reserved for the worst crimes that was applied fairly and consistently, if it did not disproportionately impact a certain class of defendants, if it was a solemn ritual that inspired respect for the majesty of the law, it would still cause a lot of drama.

There will always be last-second appeals, buzzer beaters and Hail Marys flung up to try to block the premeditated extinction of a human being because there will always be people convinced that it is wrong to kill a person for retributive purposes. There will always be those intent on reminding us that even murderers are people with families and that we can’t extract our pound of flesh without causing collateral damage. Not every murderer is someone’s father, but every one was someone’s baby.

And the idea that capital punishment coarsens our society and makes us crueler, meaner folk ought not be dismissed; cheers go up in parking lots on the nights of executions. Just read the comments on the stories about the appeals and the delays—there are people who admire the Chinese method, especially the urban legend that authorities bill the families of executed for the cost of the bullet. (This might have happened once or twice during the Cultural Revolution, but there’s no evidence to suggest it’s a widespread or ongoing practice.)

There’s no doubt that the framers of the Constitution not only entertained the idea of capital punishment but endorsed it. Still, in order to be constitutional, it has be applied consistently and rationally—and to be consistent, it ought be levied against everyone convicted of similar crimes.

In practice this is impossible because every crime is committed by an individual, each with a unique set of circumstances to consider. In 1994, after more than two decades of trying to reconcile the duty to consider the specific facts and possible mitigating circumstances of every case with the requirement to be consistent in applying the ultimate penalty, Supreme Court Justice Harry Blackmun gave up. He came to the conclusion that these prerequisites were contradictory, and therefore nullified the state’s right to take a felon’s life.

Sure, the majority of the court wasn’t convinced by Blackmun’s reasoning. But I am.

In that same case, Justice Antonin Scalia’s majority opinion suggested that one of the reasons for retaining the death penalty was its overwhelming support by the public. And polls showed that support of the death penalty was at an all-time high in 1994, at around 80 percent. Now it’s at about 62 percent, which is as low as it’s been since 1972, when the Supreme Court ruled that the death penalty, as applied, was an arbitrary punishment unconstitutional under the Eighth and 14th Amendments.

Sure, killing felons is still popular, but “popularity” is a weak reason to continue a policy most civilized nations have abandoned.

One of the costs of democracy is the stray irrational policy, the sop to the yahoo class, and the meaningless feel-good proclamation. Part of what the Supreme Court is for is to restrain the majority’s ability to inflict its will upon the minority. In a world where truth is tailored and retailed and free-floating anger collects in every exposed heart, sometimes it is necessary to perform what Orwell called the “first duty of intelligent men.”

The death penalty does nothing to make us safer. It creates unseemly chaos. It’s ugly and unnecessary, and it needs to go.