The profile of Judith Clark from last month has me worried:
We are more willing to impose death when the killer is painted in monochrome—if we can define him or her by the horror of the crime. Many think this is just; that is what blame and punishment are about. But in rare public comments to the magazine of Washington and Lee University’s law school, where she has taught, Clarke argued that no person should be defined “by the worst moment, or worst day” of his life. She laboriously constructs a complex and sympathetic portrait of the accused, working with a far more varied palette, sketching out the good and the bad, unearthing the forces that drove a killer to the terrible moment, and insisting that judges and juries and prosecutors see the larger picture, weighing not just the crime but the whole person. She seeks not forgiveness but understanding. It takes only a small spark of it to decide against sentencing someone to death.
It seems like such a laudable goal: to demonstrate that since even the worst criminals are ultimately unworthy of the death penalty, lesser criminals ought not to receive it either. Yet I see the appeal in the death penalty, too. As Arendt puts it in Eichmann in Jerusalem:
And just as you [Eichmann] supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations…we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.
I’m sympathetic to Arendt here, but I worry that the great mass murders and our outsized vengeance justifies a whole system of lesser punitiveness (like the supermax) that we ought to rein in. Maybe we can’t.
And to a large extent that paragraph is self-refuting: “as though you and your superiors had any right to determine who should and who should not inhabit the world.” On Arendt’s view, that kind of authority could never exist (what theory of political authority or consent would justify it? how could it be epistemically reliable? who would hold it in check? what does the claimed authority do to the regime that claims it?) and yet our courts regularly assert it. And, yes, this is the same boring claim made by opponents of capital punishment everywhere, an argument that Arendt acknowledges was just as valid in Eichmann’s case as in any other but “this was not a very promising case on which to fight.” Clark disagrees, of course: while hard cases make bad law, they do make good tests of general principles.
I think it’s notable how simple and straightforward the arguments against the death penalty are, and how convoluted and twisted the arguments in favor of it are. It seems we must go to considerable cognitive trouble to justify what we know is wrong (and we know it is wrong because murder is so often what we are punishing in the first place.)
So a life sentence is more humane. It’s the most ethical of the punishments, right? My friend Sarah Shugars challenges this humanism, again in the context of Tsarnaev:
a life sentence allows us to pat ourselves on the back for a job well done: our judgement was harsh but humane. Our prisoner will get no appeals while he lives in extreme isolation – cramped in a 7 x 9 cell and fed through a slot in the solid steel door. But at least he will have his life. We are progressive after all.
There is something wrong with this dynamic.
I’m not sure what to recommend in the Tsarnaev trial – whether life or death is ultimately a worse fate. But more broadly we need to rethink our options. We need to recognize the deep, systemic failures of our prison system and identify new strategies and options for reparation and justice. If we want to be harsh, we can be harsh, but let’s be honest about what we are and what we want from our punishments.
After all, if we’re quibbling over whether someone should die slowly or die quickly – we’re hardly arguing about anything at all.
Life without parole (LWOP) is a weird kind of humanitarianism. It’s often defended by reference to how easy death is in comparison, which hints at how little there is of humanitarianism in our drive to sentence wrongdoers to life rather than death… to make them live rather than make them die.
Perhaps thinking similar thoughts, Corey Robin shares this poem from Primo Levi, “For Adolph Eichmann”:
O son of death, we do not wish you death.
May you live long as no one has ever lived:
May you live sleepless for five million nights,
And every night may you be visited by the grief of everyone who saw
The door that closed off the way of return click shut,
the dark around him rise, the air crowd with death.
For Primo Levi, a life sentence is not about mercy: it’s the ultimate punishment, or it is supposed to be. It’s the only way to make the harms received equal to the harms perpetrated.
We see this same conflict in the work of the ACLU. They call LWOP both “a living death” and “swift, severe, cheap, and fair,” depending on whether they’re criticizing its use for nonviolent offenders or offering it as an alternative to the death penalty. It’s torture unless it’s justified; or, it’s torture, but some people deserve torture. That can’t be right.
LWOP seems to exist only to make sense of our greater economy of punishments, not because in itself it’s recognizably fair.
This idea–that there’s something like an order or an economy to all the bad things people can do–strikes me as pernicious and nonsensical. Arguably, it’s that first effort to rationalize our revenge that makes room for mass incarceration: it’s only when we try to make all this resentment and anger sensible and procedural that we end up with the highest incarceration rate in the world.
Can we imagine a real alternative to the death penalty, though? And if we can’t, is there much point in pushing the issue? What about life with parole? Is this imaginable?
Anders Breivik got 21 years, so clearly it’s possible, though even in Norway he can be imprisoned indefinitely if he’s still considered a threat.