Andrew Cohen on Capital Punishment

Duane Buck

I’ve been considering capital punishment, due to the recent case of Duane Buck. Andrew Cohen has written an important essay in The Atlantic. Well-written, it also cuts through obvious partisan lines to state upfront various positions on state-sanctioned killing, as well as the inadequacies of each. However, importantly, Cohen responds to a practical and common response from many people, when they let their emotional reactions become entangled in policies.Says Cohen:

Last week, when Duane Buck’s case was on America’s docket, the most-asked questions (of me, anyway) were (to paraphrase): Why should I care about the procedural technicalities of this guy’s sentencing case when his guilt is not in doubt? Since he’s guilty of murder, how fair does his legal treatment really need to be? People of all political stripes asked the same questions. For them, Buck’s guilt evidently vitiated any need for an honest evaluation of the manner in which he was sentenced to death. Texas in 2000 conceded that Buck’s trial was impermissibly unfair? The other men similarly situated got their new trials? Who cares. The guy did it. He is getting more justice than he gave to his victims.

That last part is true. Of course, defendants like Duane Buck get more justice than their victims. That’s the whole point of our criminal justice system — and of the rule of law. That’s why we outlaw lynching, why angry mobs can’t storm jailhouses, and why we have judges. It’s why we have a Constitution. In America, we aim to give the guilty more justice than they deserve. We do so because of how that reflects upon us, not upon how it reflects upon the guilty. And when we fail to do so it says more about us than it does about the condemned.

The idea of what the law is for is difficult enough; however, it seems one thing it ought to primarily be about is protecting those considered citizens (and even those who are not). The bold part indicates what it means: Should capital punishment always be banned, everywhere, forever? I’m not sure, but I tend to side with those who say we ought NOT to have capital punishment. As the wonderful Christopher Hitchens has said about America’s continued use of capital punishment (in some states): “[It] is possible to eliminate the execution of the innocent, simply by joining the association of countries that have dispensed with the death penalty.”

Yet, we have all sorts of understanding surrounding the idea that if we must kill one to save many, then we will do so. This is the idea behind the trolley problem or trolleyology. Most people, when asked about a scenario in which they must kill one innocent person to save many innocent persons, will do so. The choice is not so horrific as, say, not having children –  people are not today offended by it. Indeed, online respondents and data seem to indicate a consistent choice, in specific setups, which indicates that people, of different countries, cultures and age-groups, will choose to kill one person to save many.

If we consider that a few innocent people will die when using capital punishment, then we can formulate it in this way. If capital punishment did significantly lower crime, through mainly deterrence, then it would be difficult to say it should be completely ceased. The scenario here though is no different, for many, to human sacrifices of the past: We lay the innocent on an altar of safety and offer him to the gods of justice. It matters not that he is innocent, but that, by his slaughter, his death, this scape-goat will more than likely keep you and your family and friends safe. Would you want to live in a society that had low crime but was only so because they occasionally sacrificed innocent people? Remember, too, that innocent person might not just end up being you, but your lover or best friend.

I’m unsure. Furthermore, we would be missing the overarching point, if we only left it there: If the main idea is about lowering crime, is capital punishment the only way? We would be terribly naive to think it is or that it has proved efficient. This does not mean it cannot be or that there is no possible way of it actually turning out to be an effective measure. The point is that we would limit our vision to lower crime if we resorted first to capital punishment – or human sacrifice. Anyway, I’m uncertain about a lot of it but, if pushed, I would more than likely fall into the bracket of people unconvinced by the arguments for capital punishment, strongly opposed to regular innocents being sacrificed, and – equally important – frustrated that other options are not being investigated (legalising narcotics, prostitution, euthanasia, etc.) which has a heavy hand in leading to crimes like murder that are worthy of capital punishment in the first place.

A popular idea, too, is that if capital punishment really is an effective deterrent of violent crime, you wouldn’t need it at all.


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