Earlier this year, the Oklahoma Death Penalty Review Commission recommended (after a nearly two-year review of Oklahoma’s inmate execution protocols) that a continued moratorium on state executions “until significant reforms are accomplished.” The bi-partisan commission identified several “systemic problems,” from forensics gathering to injection sequencing. Its tacit conclusion: capital punishment is unjust as currently constituted and practiced in the state. This is not an emotive conclusion, you might notice, but an evidence-based conclusion determined from the facts as they stand. And, Oklahoma isn’t the only state questioning capital punishment. Nebraska’s legislature banned the death penalty by supermajority vote, overriding governor veto, in 2015, although Nebraska voters reaffirmed it the following year. National attitudes toward capital punishment are subtly shifting.
It just so happens that the number of executions and public support for executions are both declining in the U.S. Fewer perpetrators are being put to death and fewer want perpetrators put to death. Accounting for this trend is complicated, but perhaps one way to do so is to acknowledge a few of the more glaring problems endemic to the criminal justice system itself. There are lingering questions as to the justice of capital punishment, given the conditions of the criminal justice system today, and it is likewise increasingly difficult to justify on distinctly Christian grounds. Consider the following:
- More than half of all death row inmates are people of color.
- Since 1977, the overwhelming majority of death row inmates (77%) have been executed for killing white victims, even though African Americans make up half of all homicides.
- Since 1973, 140 individuals on death row have been exonerated.
- Almost none on death row could afford their own trial attorney.
- Since 1976, 82% of all executions have taken place in the South.
- Of the 344 exonerates represented by the Innocence Project, 20 served time on death row. Of those 244, 71% involved eye-witness misidentification, 46% involved misapplication of forensic evidence, and 28% involved false or coerced testimony.
- Of those 344, a full two-thirds were people of color.
- The comparative costs of keeping inmates on death row is exorbitant for many states. In Oklahoma, for example, it costs approximately $110,000 more to prosecute a capital case as opposed to non-capital cases, and the relative costs for maintaining a death row unit within maximum security prisons is also expensive. It costs Oklahoma 38m a year to incarcerate just over 1300 prisoners.
- Approximately 2800 inmates currently sit on death row in the United States.
These are but a small sample of the practical problems endemic to the criminal justice system. In particular, I wish to highlight the problems of attorney representation and racial bias. Given the current strain placed on public defenders, both because of case load and prolonged underfunding, it is difficult to see how every violent offender who cannot afford their own counsel could be comparably represented by state appointed counsel, no matter how well-meaning or talented that counsel might be. Likewise, mounting evidence suggests that people of color receive a disproportionate percentage of capital sentences. Together, these are reasons enough to place a temporary national stay on capital punishment.
Evidence also strongly suggests that capital punishment does not serve as an effective deterrent to capital offenses. Some capital crimes are charged as un-premeditated, or in the heat of passion, and so the threat of execution never entered the wrongdoers’ minds before perpetration. Moreover, in fourteen states without the death penalty, homicide rates are at or below the national average. Positive evidence of the death penalty’s effectiveness at dissuading violent crime is not compelling.
The number of executions has declined nationally, but not for reasons you might think. States have not amended their laws, nor have they sought to ban the penalty entirely. Statutes remain largely intact. One reason for the decline is shortages in the substances used for lethal injections; many manufacturers of these substances no longer supply states conducting executions. Another reason is still more plain: death sentences are simply less frequent than they were a decade ago. I’m inclined to think this reduction is attributable in part to society’s slow absorption, however intuitive, that capital punishment should require an incredible level or certitude about the accused’s guilt, coupled with a parallel worry about the possibility of bias or prejudice in the criminal justice system today.
The question before us is not which method of execution is more “humane,” but whether it is necessary for liberal societies to continue executing criminals at all. Upcoming posts from Myles Werntz and Brad Littlejohn will explore points of theological intersection. I wish here to offer a brief philosophical objection related to the meaning and the scope of punishment itself.
Advocates of capital punishment often appeal to the importance of perpetrators receiving what they deserve, or paying the wrongdoer back for their crime. This exchange is believed to follow the traditional legal principle of lex talionis—an eye for an eye—and thus in a sense “settle up” a criminal debt incurred by the wrongdoer. But, thinking of punishment as exchange—as tit for tat—is mistaken. Punishment is better conceived as a symbolic representation. If someone murders another person, killing the wrongdoer does not re-establish the state of affairs that existed before the murder took place. That moment is irrecoverable. Cutting off a thief’s hand for stealing fruit from market stall, the classic illustration of lex talionis, is not actually an example of the principle—the thief should instead be stolen from!
Punishment cannot finally and of itself restore just equilibrium to society. It is a necessary, but not a sufficient, condition for social ordering. The death penalty, as one form of punishment, can only represent the violent crimes. In these cases, it punishes symbolically, bringing the accused to trial and in turn notifying the public of what has happened and what is being done to correct it. Capital punishment isn’t so much re-establishing of justice, as it is a respecting of it.
I suggest it isn’t some past state of affairs that is most desired anyway, but rather a deep-seated feeling that wrongdoers should receive punishment. That is, retribution. For the retributivist, the purpose of punishment is simply to punish. That is literally what the word means, and in many respects retribution occupies an authoritative, rightful place in our penal code. When applied to capital punishment, however, the theory begins to break down.
Retribution can at best form only part of punishment’s purpose. It is equally essential for punishment to tell the truth about the crime, and with pedagogical purpose. That is Augustine’s position. He argues punishment should both tell the truth about the crime and discipline the accused in formative, proportionate ways. The death penalty is unique among punishments in that it is incapable of exactly this pedagogical purpose. The dead do not learn from their mistakes or from the discipline imposed. Suggesting that capital punishment somehow expresses our sincere respect for human life—the image of God—is, on its face, far too paradoxical to accept.
If capital punishment is no longer practically necessary as a way of reducing or controlling prison populations, is an unreliable deterrent, and inflects certain biases and prejudices (of various kinds), then why would any society continue to support capital punishment? That is a rhetorical question, obviously, but one with which our society must in fact reckon. It often does not serve the purposes we think it serves. At the very least, states are right to re-evaluate its continued legitimacy within their respective penal codes.
Perhaps like Oliver O’Donovan, from whom the latter half of this analysis draws significantly, professor Arbo rejects the penal-satisfaction account of Christ’s atonement. If, however, one is persuaded by the biblical text (and the Reformed confessions) that retribution is one aspect of the atonement, then one cannot so easily eliminate retribution from human justice. To be sure, Arbo refers to retribution (“Retribution can at best [?] form only part of punishment’s purpose.”) but he then removes it from the practical equation of humanly-administered justice by yoking it to pedagogy for the offender. Turning to O’Donovan at this point is instructive: “[Legal] judgment, by pronouncing on the past, establishes a new public context.” Re-framing punishment’s pedagogy from the offender [only] to the public not only undercuts Arbo’s philosophical objection, it explains why the practice of state-sanctioned “disappearing” of criminals in certain countries and any other form of public justice that is not administered in public view is fundamentally unjust.
(In case it needs to be said, nothing I wrote above should be taken to indicate support for the actual administration of capital punishment in the U.S.)