Till Death Do Us Part: Arguing About Capital Punishment |
“If we are to abolish the death penalty, let the murderers take the first step.” Les Guepes, Alphonse Karr (1849)
There are few arguments as vitriolic, or recurrent, as capital punishment.
Opponents call supporters barbarians; supporters deem opponents fools. Both agree the opposition promotes murder, either of innocent defendants, or future victims, and therefore can never be respected, or forgiven.
Even if one supports its qualified use, the arguments for its abolition should be carefully examined:
1- “Thou shall not kill” is one of the 10 Commandments. It does not differentiate between individuals and society. If you venerate the Bible, or believe in God, you don’t kill your fellow man.
The Sixth Commandment is not Lo Taharog, Don’t Kill, but Lo TIrtzach, Don’t Murder. Not only does the Bible explicate detailed rules for trial and execution, but it also mandates Earei Miklat, cities of shelter where those who accidentally kill can voluntarily imprison themselves to avoid being avenged by the victims’ families.
Yet, the Talmud [Makkot 7A] characterizes courts executing even once in 70 (or 7) years as “Murderers.”
The divine message appears to be, execution is permitted, but should be sharply circumscribed.
2- The death penalty is not a deterrent.
Of course, it is. No one wants to die, why cops warn “Stop, or I’ll shoot!”, why murderers plead guilty to avoid the death penalty. Its effectiveness however, is proportional to how imminently it will be implemented.
Bear in mind however, a nuclear bomb is also an unquestionable deterrent, but few would advocate its usage.
3- The Constitution forbids “Cruel and unusual punishment.”
It is hardly unusual, transcending all temporal and geographical boundaries. The Constitution’s framers clearly did not mean it to apply to executions, or they would have said so explicitly.
It should never be administered cruelly. If we can put quadrupeds “To sleep” painlessly, we can, and should, do the same for bipeds.
4- Execution is more expensive than lifetime incarceration.
The only expensive component of execution is litigating illimitable procrastinatory lawsuits brought by those who then use the expense they precipitated to justify its elimination.
5- It can be applied in a racist (or biased) fashion.
This is undeniably true. Far beyond To Kill a Mockingbird, White juries occasionally convict innocent Blacks, Black juries have exculpated guilty ones, and vice versa.
If however, we eliminate capital punishment because of that, do we eradicate imprisonment as well for the same reason? With what do we replace them?
We must work incessantly to reduce the scourge of bigotry, but it would be folly to eliminate our legal safeguards because they, like everything else, can be tainted by it.
6- Since the death penalty is irreversible, mistakes can never be rectified.
This is also undeniably true. Law schools teach it is better to acquit 100 murderers than to erroneously execute one innocent individual.
Medical schools however, teach every intervention we undertake, surgery, radiation, medication, will unavoidably kill a certain number of patients. If the percentage of patients whose lives it saves is significantly higher, we continue to utilize that procedure.
Capital punishment can be compared to oncological surgery. We eliminate pathological cancers because they threaten our overall existence. These are painful, debilitating, disfiguring procedures which we deliberate, study and agonize before undertaking. We don’t perform them because we want to; we do it because the alternative is worse.
7- Murderers can’t threaten us if they are imprisoned for life. Execution is unnecessary.
This raises two issues:
A- Are there crimes that deserve the ultimate punishment?
The majority of us feel that way. (If the question is posed as a simple yes or no dichotomy, 80% support it. Predictably, if more options are offered, e.g., life sentence with parole, without parole, etc., each category receives a smaller percentage.)
No matter how compassionate we are, we feel instinctively terrorists who kill innumerable victims, parents who cold-bloodedly murder inconvenient children, pedophiles who fatally rape toddlers don’t deserve to be the government’s guests, consorting with their peers, lifting weights, playing basketball, watching cable TV. They deserve to die.
The head of the Ethics Program at NYU Medical Center, where I served my entire medical career, was my mentor and friend, Dr. Arthur Zitrin. He repeatedly invited me to speak in support of capital punishment to medical ethics colloquia though he (and most of the attendees) opposed it.
On 9/11/2001, standing on line together to donate blood (Gunisht Helfen), with a sigh, he confided, he just changed his mind about the death penalty. Over the next 18 years, he reverted to his original position, but acknowledged “finding myself, increasingly making exceptions to my opposition.”
B- Is life imprisonment an absolute safeguard to prevent future murders?
In reality, even “Life without parole” prisoners are eventually released for diverse reasons (e.g., liberal parole boards, political pardons, overcrowding, “compassionate release” for age, illness, family circumstances.) In some instances, they have murdered again.
In addition, terrorist murderers have been exchanged for hostages in Israel, US, UK, Spain, et al. Many have notoriously murdered again. (See October 7.)
There are also murderers who escape prison, secure in the knowledge any further murders committed in the process can’t be punished any worse.
Finally, there is the ignored issue of murders in prison.
1982, Robert “Mudman” Simon was sentenced 10 to 20 years for murdering his 19-year-old girlfriend for refusing sex with his gang members. Imprisoned, he killed an inmate, spent six years in solitary. He was paroled in 1995. Within months, he murdered a cop innocently stopping him for a traffic violation. 1999, he was beaten to death in prison by another death-row inmate who also had nothing to lose.
Perhaps “Mudman”deserved his fate. Donna Payant did not.
Donna was a 31 year old rookie correction officer supporting three young children, supervising a prison chapel. Her sexually ravaged, strangled, savagely beaten corpse was found in a dumpster. Her murderer, Lemuel Smith, was identified by his tooth-marks on her body. He has brutally murdered at least six people, raped at least four, continues to be imprisoned for life.
Murdering Donna did not change his existence, though it ended hers.
What do death penalty opponents tell Susan Payant who was two years old when her mom was taken from her? The same thing death penalty proponents tell Edward Smith, whose dad, 19 year-old Tommy Lee Walker was attending his birth, with many witnesses, yet was still accused, convicted and executed by a Ku Klux Klan sheriff for murdering a white woman whom he had never met, several miles away.
Why do medical students cover cadavers’ heads dissecting their bodies? Same reason surgeons drape anesthetized patients’ faces. Even facial surgeons operating with local anesthetic cover patients’ features although it makes the patients uncomfortable.
The reason is, it is counter-instinctual, therefore anxiety provoking, to plunge a knife into a fellow human. Obviously, that is even more the case killing a fellow human. That is why, traditionally, both executioners and prisoners cover their faces during the procedure.
Though the sight of blood makes most of us uncomfortable, the loss of life almost everyone, there is still a need for surgery and surgeons, for abortions and gynecologists, for war and soldiers, and, regrettably, for executions and for society to implement them.
There are those who passionately oppose each of the four. (Christian Scientists and Jehovah’s Witnesses reject surgery.) That is their right; they should not be criticized for that.
Neither should those who support them.
In the final analysis, no one should feel comfortable with their position on the death penalty.
Perhaps the most reasonable approach is Dr. Zitrin’s, oppose it in principle, make exceptions in practice, try to preserve the lives of both Tommy Lee Walkers and Donna Payants, while simultaneously terminating the lives of “Mudmans” and Lemuel Smiths before they can murder others.
It would make all of us healthier, happier and holier to realize, no matter what our position is on capital punishment, death need not make us part.
We are all on the same side. Life.