The Paradoxes of Capital Punishment

Ironically, the controversy surrounding the death penalty seems destined to live forever.  Like Proteus, the issue seems to change its shape as you consider it from different points of view – justice, deterrence, closure, the safety of society, the pain of executions, or the danger of mistaken convictions.  And any attempt to simplify the matter by focusing on a single aspect usually leads to a paradoxical conclusion.

Consider, for example, the moral confusion of Martin O’Malley, the departing governor of Maryland, who has just commuted the death sentences for all four of the state’s death row inmates.  O’Malley, who led the successful fight to abolish the state’s death penalty in 2012, claims that executions “make every citizen a party to a legalized killing as punishment.”  But this pious view seems inconsistent with his avowed support for abortion.  A conscience that flinches from the killing of murderers but condones the killing of unborn babies is beyond comprehension. And yet it is fairly common among die-hard liberals and pseudo-Catholic politicians.

Or consider the claim that the growing public aversion to capital punishment derives from the agony inflicted during the process of execution, as exemplified by recent botched attempts at lethal injection.  This claim is inconsistent with the fact that, in contrast to the methods in current use, the most painless and reliable mode of execution – asphyxiation by vacuum or inert gas – is not being used anywhere in the world and was actually rejected by one U.S. state as being “not painful enough.”

Moreover, the minimal-pain criterion is inconsistent with the motive of deterrence.  As dramatist-fabulist Oscar Mandel has pointed out in his incomparable Book of Elaborations, any effective use of execution as a means of discouraging criminals from committing crimes would require that the process be horrific, painful, and humiliating.  And yet Mandel admits that he would be loath to impose such a fate on even the worst of criminals.

The question of the interval between sentence and execution entails similar paradoxes.  Although Canus inveighed against the mental torture of delay, others have pointed out that unjustly convicted prisoners have been saved by this same delay.  Moreover, the fact that delay is often imposed by appeals indicates that prisoners under sentence of death prefer the delay and that the death sentence is, at least in principle, a deterrent to crime.

But perhaps the most paradoxical viewpoint is that of Sister Helen Prejean, author of Dead Man Walking and crusader against the death penalty.  Sister Helen holds that our primary concern must be for the murderer's soul – that killing does no real good for the victim, his family, or society.  The murderer is still a human being capable of redemption, and this redemption should be our primary goal, as well as the most effective way of healing the victim's family.

Let us assume that she is right.  Forget, for the moment, the possible deterrent effect of public executions and the need, often expressed by the victims’ families, for justice.  Focus entirely on the redemption of the murderer as our goal in deciding his fate.  The problem is that, considering that goal practically, Sister Helen’s crusade is inherently self-defeating.

Bear in mind that convicted murderers have very few options.  The enormity of their crime, and the possibility of repetition, makes term imprisonment or the possibility of parole untenable.  A life sentence in solitary confinement is unconstitutional.  So the only feasible alternative to execution is a life sentence in a conventional prison.  And unfortunately, this is not a very morally uplifting environment.  Prison is a separate world, with its own elite and its own desiderata, such as sodomy and drugs.  And for lifers in prison, death seems just as far away and unreal is it does to us on the outside, so well-intentioned nuns are seldom listened to.

But, as Dr. Samuel Johnson pointed out, "when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully."  If you take a man from the courtroom and kill him immediately, he is too dazed to appreciate death's awesome finality.  But if you put him in a cell in a long dark hallway lined with other cells, containing men who are condemned to die, and if, as the tedious months pass, these men are led out, one by one, to be killed, the nature of his predicament gradually begins to sink in.

He eventually realizes that he is actually going to die soon, and he may even think about the state of his soul.  If some nice nun, also concerned about the state of his soul, is his principal visitor, he begins to look forward to her visits as a break from his loneliness and his preoccupation with impending death, and he may even begin to listen to her.  And thus, at least sometimes, the good work as described in Dead Men Walking is finally done.

Thus, if our primary concern is really the moral conversion of the criminal, then revolted as we may be by the heavy-handed theatricality of executions and the excruciatingly drawn-out process of delays and appeals, this slow and seemingly sadistic process is exactly the right way to persuade convicted murderers to face their situation.

All of these contradictions suggest that there is something intrinsically paradoxical about capital punishment.  However philosophically and emotionally balanced it may seem, and whatever practical value it may have, the imposition of a legal death to atone for a wrongful death falls far short of the only true justice: the restoration of what was originally taken.  And that we cannot effect.