Heat v. Light

This actually almost makes sense, if you think about this first:

Indeed, to be against the death penalty is to be against all such executions, whether the prisoner is innocent or guilty. Raising doubts about individual guilt, as effective as it may be in individual cases, will not stop the death penalty, but at most multiply procedures instituted to give a greater and falser assurance that the executed must be guilty.

I remember, while in law school, in the late 1970's,it was assumed that the death penalty had been effectively nullified by the Supreme Court because of the concern that discretionary procedures led to discrimination against the poor and racial minorities. The result was an abandonment of discretionary procedures, and a resumption of execution--and, strangely, it was still the poor and racial minorities who disproportionately suffered.

Douthat's argument is generating a great deal more heat than light, but then, it's not a terribly coherent argument. The heart of it seems to be this:

Simply throwing up our hands and eliminating executions entirely ... could prove to be a form of moral evasion -- a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked....

This point was made well last week by Pascal-Emmanuel Gobry, writing for The American Scene. In any penal system, he pointed out, but especially in our own -- which can be brutal, overcrowded, rife with rape and other forms of violence -- a lifelong prison sentence can prove more cruel and unusual than a speedy execution. And a society that supposedly values liberty as much or more than life itself hasn't necessarily become more civilized if it preserves its convicts' lives while consistently violating their rights and dignity.

Which rightly draws derisive questions about why we can't do both, but I think Douthat has inadvertently touched on the question of how we do both, and that's where the context provided by Rick's comment comes in.

At one time we depended on the evil of discretionary procedures to flush out the death penalty; we even declared it dead ("Death, thou shalt die!"). Not so fast, of course; and now the Troy Davis case seems to mean the death penalty shall die again because the system cannot tolerate the death of the innocent.

Well, of course it can. It tolerates the incarceration of the innocent. Just ask the Innocence Project. Now, should it do so? No. But the system is not established to do justice; it is actually established to get convictions. The fact that our prisons are crowded "can be brutal, overcrowded, right with rape and other forms of violence," is a consequence of this efficiency, as much as it is a result of our neglect of prisoners (out of sight, out of mind). Douthat actually makes this point, although most of his harsher critics seem to have overlooked it:

Instead of dismissing this point of view as backward and barbaric, criminal justice reformers should try to harness it, by pointing out that too often our punishments don’t fit the crime — that sentences for many drug crimes are disproportionate to the offenses, for instance, or that rape and sexual assault have become an implicit part of many prison terms. Americans should be urged to support penal reform not in spite of their belief that some murderers deserve execution, in other words, but because of it — because both are attempts to ensure that accused criminals receive their just deserts.

What's to disagree with here? Well, maybe this, the first two sentences of the next paragraph:

Abolishing capital punishment in a kind of despair over its fallibility would send a very different message. It would tell the public that our laws and courts and juries are fundamentally incapable of delivering what most Americans consider genuine justice.

Douthat is jumping off a moral cliff there, and trying to take us with him. He has a point: if we can't reform the system, then the alternative seems to be to declare the system broken and irreparable, but be fair: how far has reform of Washington gotten? And how many people don't think it is broken beyond repair, and the only solution is to start over again with new political parties, or even new, and even more ideological, politics? Douthat has thrown up his hands and declared this state of affairs the norm for public policy and the discussion of public issues. But does it need to be?

Interestingly, Douthat has implicitly put the death penalty at the heart of the criminal justice system. I agree with him on that. And yet we don't have to simply throw up our hands and toss out all claims to the death penalty.

First, this isn't an issue as fundamental to the republic as federalism or states rights. No one complains today of the heavy hand of the Supreme Court in this arena (for better or worse).

Second, the issue is a question of justice, not just of punishment: it's high time we had a public discussion about the distinction between those two.

Third: we cannot rely on any system to do this work for us: the death penalty will not fall of its own weight, it must be actively and openly rejected, and rejected on the grounds of an understanding of justice that doesn't allow a death penalty to be available, not a vague idea that it is just too unfair or personally debilitating in its execution (i.e., either that it is a discretionary procedure that results in unfairness, or that it is pre-meditated murder which takes a toll on the executioners. Society will always be unfair and will always find willing executioners.).

The latter is the discussion even Douthat doesn't want to have, and is the weak reed on which his argument rests: that any such outcome will itself depend again upon the system to do the work for us. In that he is right: so long as we expect someone else to do something good, nothing good will ever happen.

And probably, the situation will even get worse.