Home > law & justice > On Capital Punishment: Feeling AND Thinking (as Opposed to Feeling OR Thinking)

On Capital Punishment: Feeling AND Thinking (as Opposed to Feeling OR Thinking)

Monday, September 26, 2011, 22:38 EDT Leave a comment Go to comments

nooseBlogger Ann Althouse posted yesterday about a New York Times op-ed discussing issues raised by the recent execution of Troy Davis. Althouse added her own provocative comment wondering “why people who don’t trust convictions agonize over the death penalty but blandly accept life imprisonment.” I responded to her in the comments, talking about fallibility and irreversibility and the need to always leave ourselves the opportunity to correct our mistakes. Check out the comments to see that discussion from both sides.

But that isn’t what I came here to talk about. What I came here to talk about relates to a response I wrote to another commenter who raised a different issue. What I said to that person was, “Those are emotional arguments that are no more sound than the emotional arguments used in favor of capital punishment. Ultimately, I believe, we’ll only prevail with reason.”

Folks who remember the presidential debates of 1988 know the danger in such an approach, at least all by itself. In the second debate between Democrat Michael Dukakis and Republican George H.W. Bush, moderator Bernard Shaw asked Dukakis, a death penalty opponent, if he would favor the death penalty “if Kitty Dukakis [the nominee’s wife] were raped and murdered.”

In what is widely acknowledged to be the nail in the coffin of Dukakis’ dying presidential aspirations, the nominee replied:

No, I don’t, Bernard. And I think you know that I’ve opposed the death penalty during all of my life. I don’t see any evidence that it’s a deterrent, and I think there are better and more effective ways to deal with violent crime. We’ve done so in my own state. And it’s one of the reasons why we have had the biggest drop in crime of any industrial state in America; why we have the lowest murder rate of any industrial state in America. But we have work to do in this nation. We have work to do to fight a real war, not a phony war, against drugs. And that’s something I want to lead, something we haven’t had over the course of the past many years, even though the Vice President has been at least allegedly in charge of that war. We have much to do to step up that war, to double the number of drug enforcement agents, to fight both here and abroad, to work with our neighbors in this hemisphere. And I want to call a hemispheric summit just as soon after the 20th of January as possible to fight that war. But we also have to deal with drug education prevention here at home. And that’s one of the things that I hope I can lead personally as the President of the United States. We’ve had great success in my own state. And we’ve reached out to young people and their families and been able to help them by beginning drug education and prevention in the early elementary grades. So we can fight this war, and we can win this war. And we can do so in a way that marshals our forces, that provides real support for state and local law enforcement officers who have not been getting that support, and do it in a way which will bring down violence in this nation, will help our youngsters to stay away from drugs, will stop this avalanche of drugs that’s pouring into the country, and will make it possible for our kids and our families to grow up in safe and secure and decent neighborhoods.

The question was lousy. It was designed to ensnare the candidate in emotions. It had nothing to do with whether the candidate was qualified to be President; in fact, we hope our elected leaders govern with a focus not on what’s best for their spouses but on what’s best for the country.

The answer was worse. Not only did it meander off into topics that have nothing to do with capital punishment (yes, I realize that’s a tried and true technique of political debates, to steer the conversation in a direction that helps you), but it ignored the fact that for most people, capital punishment is an emotional question. And it completely ignored Mrs. Dukakis. We may not want a President who makes decisions based on raw emotion, but we also don’t want a President who isn’t a real human being. What Dukakis should have done was acknowledge the emotions and then point out the problem with reacting emotionally. That’s the tactic I believe any death penalty opponent should use.

Here’s the answer I would have given in Dukakis’ place, and it’s an answer I’ve given to people who have posed a similar question to me, with my son or my mother taking the place of Mrs. Dukakis:

I’d want to kill the son of a bitch with my bare hands and I’d want to make it hurt, a lot and for a long time, and to hell with a trial or civil rights or due process.

But our laws wouldn’t allow me to do that. And they shouldn’t. We aren’t supposed to dispense justice emotionally. We’re supposed to look at all the evidence and the applicable laws and make a decision according to those, rendering a verdict of guilty only if we believe the prosecution has established guilt beyond a reasonable doubt. A system that does what a murder victim’s spouse or parent or child would do in the depths of anger and grief and despair would produce a society in which we wouldn’t want to live.

We also aren’t supposed to dispense justice individually, vigilante style, based on what will make us feel better. There is a reason why the plaintiff in a criminal case is “the people” (e.g. “Commonwealth of Massachusetts” or “United States”) rather than the victim. Despite what we might think and want, our criminal laws and the punitive aspect thereof are designed to promote public safety and defend society, not to exact revenge on behalf of crime victims. And let’s face it, we get much more worked up over someone who kills a cute child, an intelligent young person with his or her whole life to live, or a great philanthropist than we do about a drug dealer or the neighborhood letch. Likewise, we tend to cut some slack to a defendant who presents a polished and professional demeanor rather than to someone who looks the part of the violent thug. Going on gut reactions seldom makes for real justice.

Ultimately, what distinguishes humans from other animals is our ability to civilize ourselves, both individually and collectively. We aren’t supposed to act purely on instinct or emotion; we’re supposed to temper it with thought and reason. Those ruled by purely emotional reaction in their support of the death penalty do us all a grave disservice. We shouldn’t emulate them, but we also shouldn’t let their emotional arguments go unchallenged.

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