DEATH PENALTY A MESS IN AMER­ICA

The Fresno Bee (Sunday) - - Front Page - BY AN­DREW FIALA Spe­cial to The Bee An­drew Fiala is a pro­fes­sor of phi­los­o­phy and di­rec­tor of The Ethics Cen­ter at Fresno State: @Phi­los­o­phyFiala

The cur­rent de­bate over the death penalty re­flects a con­flict be­tween mercy and jus­tice and other fun­da­men­tal val­ues.

The de­bate about the death penalty re­flects our deeply di­vided cul­ture. Gov. New­som an­nounced a mo­ra­to­rium on the death penalty in Cal­i­for­nia, de­spite the fact that Cal­i­for­ni­ans voted to sup­port it in 2016. Last year the Catholic Church called for the abo­li­tion of the death penalty world­wide. But Pres­i­dent Trump has called for ex­panded use of the death penalty for drug traf­fick­ers. There are fun­da­men­tal val­ues in con­flict here. If jus­tice re­quires ret­ri­bu­tion, then mur­der­ers de­serve death. But as the Catholic Church has said, even mur­der­ers are hu­man be­ings with in­her­ent dig­nity and worth. And other val­ues are on the ta­ble, such as love, mercy, and for­give­ness— as well as the ba­sic goal of pre­vent­ing crime and in­sur­ing public safety.

The the­ory of re­tribu­tive jus­tice has an­cient roots in the lex tal­io­nis, the law of re­tal­i­a­tion. This rests upon a sys­tem of equiv­a­lences: eye for eye, and life for life. This sys­tem lim­its the ex­ces­sive vi­o­lence of re­venge. Ret­ri­bu­tion says that you can only take an eye for an eye—and no more than that.

Thomas Jef­fer­son con­sid­ered the lex tal­io­nis, as he drafted a sys­tem of pun­ish­ment for the state of Vir­ginia that in­cluded cas­tra­tion as a pun­ish­ment for rape, polygamy and sodomy. But we no longer cas­trate rapists. And sodomy is no longer a crime. The demise of cap­i­tal pun­ish­ment seems to be a fur­ther step on this path of evo­lu­tion.

In the old days, cor­po­ral pun­ish­ment was of­ten done in public. It thus had a strong de­ter­rent ef­fect. But these days, the few crim­i­nals we do ex­e­cute are killed in se­cluded places out of the public eye. Any de­ter­rent ef­fect of cap­i­tal pun­ish­ment is thus un­der­mined. And since we no longer use cor­po­ral pun­ish­ment, time served in prison is the univer­sal cur­rency of pun­ish­ment.

Prisons evolved out of the idea of the “pen­i­ten­tiary” as a place to be­come pen­i­tent. A crim­i­nal alone in a cell with a Bi­ble might re­pent. But re­li­gious trans­for­ma­tion is not a fo­cus of mod­ern prisons. And the ra­tio­nale be­hind prison sen­tences is con­vo­luted. The way we con­vert crime into pris­on­time has lit­tle to do with the lex tal­io­nis.

For ex­am­ple, when Trump crony Paul Manafort was sen­tenced to prison, crit­ics noted that his sen­tence was lighter than what less af­flu­ent crim­i­nals get. Wealth and race un­der­mine the ideal equal jus­tice. Such dis­par­i­ties also hold with re­gard to death sen­tences.

We also trade pun­ish­ment for co­op­er­a­tion. The tri­als emerg­ing out of the Washington swamp in­clude of­fers of le­niency. But plea bar­gain­ing vi­o­lates the idea of lex tal­io­nis, since it gives the crook less than what he de­serves.

So maybe re­tribu­tive jus­tice is less im­por­tant than the over­all goal of crime preven­tion. Plea bar­gains get crooks off the street, even if peo­ple plea to crimes they did not com­mit. But if crime preven­tion is our goal, we should also con­sider restora­tive jus­tice, re­ha­bil­i­ta­tion, and other ef­forts to trans­form com­mu­ni­ties. Al­ter­na­tives to in­car­cer­a­tion put peo­ple back to work and keep them with their fam­i­lies.

An­other com­pli­ca­tion is the idea that re­tribu­tive jus­tice should give way to more hu­mane val­ues such as mercy, love, and for­give­ness. It was Je­sus who said that “eye for an eye” should give way to turn­ing the other cheek (Matthew 5:38-39). But for­give­ness and mercy fail to give peo­ple what they de­serve.

So where does this leave us? Well, our sys­tem of pun­ish­ment is a tan­gled mess. The U.S. has the world’s largest prison pop­u­la­tion. Racial and eco­nomic dis­par­i­ties are wo­ven through­out the sys­tem. Cal­i­for­nia has the largest death row pop­u­la­tion in the coun­try. But now the 737 peo­ple on death row will not be killed.

The good news is that crime rates have fallen over the past decades. The bad news is that our moral and cul­tural dif­fer­ences make it un­likely that we would ever achieve con­sen­sus about crim­i­nal jus­tice. Some may want us to go back to the era of Thomas Jef­fer­son and re-in­state cas­tra­tion for rapists and other forms of cor­po­ral pun­ish­ment. Oth­ers will ar­gue that the death penalty is just and nec­es­sary. But some will cheer on the demise of the death penalty as the dawn­ing of a more hu­mane and en­light­ened era.

Cal­i­for­nia Depart­ment of Cor­rec­tions and Re­ha­bil­i­ta­tion via AP

A chair is re­moved from the death penalty cham­ber at San Quentin State Prison on Wed­nes­day af­ter Gov. Gavin New­som signed an ex­ec­u­tive or­der plac­ing a mo­ra­to­rium on the death penalty.

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