So, I had a discussion about the fine art of lawyering with one of my colleagues yesterday. Now, I should point out that I am not a lawyer. I have never trained as a lawyer, I have never taken law classes beyond basic constitutional law in high school and intro to criminal law in 1st year University. I may or may not have the potential to play a lawyer on t.v. at the same caliber as James Spader in Boston Legal, I don’t know. What I am is a Citizen (that’s right capital C) of what plays at being one of the world’s few, mostly functioning, democracies. What that means is, in addition to having the option of watching large quantities of very questionable pornography on my digital cable box, I have an obligation to be concerned with the actions all the branches of our federal government commit, ostensibly on my behalf.

Which brings me to the question that was posed by my colleague, namely;

“How can you possibly believe in the death penalty?”

 

And it’s a good question. On paper I look very much like the type of liberal whom Bill O’Reilly, Glenn Beck, and Ann Coulter get their sanctimonious balls all twisted up over. I don’t care who you fuck, who you want to marry, what you do with your own body, or what version of Jesus Christ you happen to have a personal relationship with. I do believe that the interests of corporations should always come second place to the wishes of the voting public and I feel very firmly that phrases like “Preemptive Self Defense” belong in the same book of quotes as “hey, what do you think of invading Poland?” or “Let’s sue the Nicaraguans for breaking our tanks on their corpses”. I don’t give money to Greenpeace but the following list of movies did make me mildly upset for a period of 24 hours;

a) Who killed the Electric Car?
b)Bowling for Columbine
c)Fahrenheit 9/11
d)An Inconvenient Truth
e)Torque (This one actually fueled me with rage for weeks. I mean really, dueling cartoon motorcycles? Did we really need to make this one?)

I also think that the term illegal immigration is patently absurd. Helloooo, you didn’t build the fucking continent! Some people, a long time ago, who are probably in no way related to you, showed up, wiped out an entire indigenous people and started singing “this land is my land, this land is your land”. By that logic, I should be able to walk up to my neighbor’s house, shoot him in the face and plant a flag. By comparison, some guy hopping a fence so he can work at McDonald’s for $5.00 an hour doesn’t motivate me to head out to the polls and vote Republican. Please.

So yeah, on the social issues I’m a liberal. When it comes to crime and punishment though, frankly, I wish they’d bring back public hangings in front of town hall. Here’s why.

I live in Canada. And, much like our beloved Joe from the “I am Canadian” commercials, there are several reasons why I’m grateful I’m not an American. Not the least of which is that when our government makes a decision (based, in theory, on the concept that that decision is representative of the will of the people) our Prime Minister doesn’t have the right to step in and scream “Do over!” We do, however, have a common binding philosophy that defines what we consider social order. This is the concept of the social compact.

Every citizen who stays in our respective countries past the age of 18, in doing so, tacitly agrees to participate in a mass consensus that there are certain things that we, as a society, deem either appropriate or inappropriate. This unspoken agreement is designed to ensure that we are all safe from the negative attention we sometimes incur as the result of living our separate lives. The entire span of this compact is defended by the system we refer to as Justice. Justice, we have decided, is a series of contingent checks and balances that metes out fitting punishments for infractions upon our social compact. The idea being that, since a break in the compact throws our collective system out of whack, then it stands to reason that a punitive response will correct the imbalance.

The problem with this system is our application of it.

Justice, to me, is restitution not retribution. The act of correcting the imbalance has to have some meaning directly tied to the criminal act. If a person robs my house while it’s empty we dole out a certain punishment. If the same person robs my house and kills my dog, we give him a stiffer punishment. If this individual kills my dog and pulls a gun on my wife, we give a still harsher punishment. And so on. The issue I have is that the punishment is always the same, jail. And depriving a person of their fundamental freedoms by incarcerating them in what amounts to a new social model, ultimately removing them from the social compact for varying lengths of time, is not justice. It only affects the violator negatively, it doesn’t affect me positively, and ultimately the only way for the wronged party to achieve balance again is to be personally satisfied on some level.

I don’t claim to have an alternative system of punishment worked out but, since we are emotional animals and more litigious than prosecutorial in nature, I imagine some form of tit for tat would suffice. For example, a rapist, by committing his act, deprives his victim of her sense of security, her confidence, her emotional stability and her ability to achieve a state of sexual normalcy, perhaps permanently. Some regions have decided that an effective way to achieve balance in this scenario is to chemically castrate the perpetrator thus exposing him to the exact same challenges his victim now faces. In this case the punishment serves two purposes, it renders the rapist incapable of repeating his crime thus assuring society at large that he no longer poses a risk and it ties his punishment directly to his victim, ultimately giving her a small level of personal satisfaction. Justice is served. Sadly, incarceration is too often the solution, forcing the society as a whole to financially carry the burden of ineffectively and temporarily restoring a semblance of order. In most cases this stop gap measure does work, at least nominally. Not, however, in the case of first degree murder.

When someone commits an act of premeditated murder they are effectively and with forethought choosing to impose their own will upon another citizen by depriving them of their life. This crime is ultimate, they are choosing to remove another person entirely from the fabric of our society and by doing so are negatively impacting every other person who lives in that society. (“ask not for whom the bell tolls, it tolls for thee” one of my all time favorite quotes and wildly relevant here) The only way for a society to recover from this imbalance is for the person who created it to be removed from the social compact permanently. Absent, the victim hurts us by the loss of their potential contributions, the removal of the criminal heals us by giving us closure.

The common arguments against this idea are many and varied, ranging from the sophomoric “two wrongs don’t make a right” to the more esoteric concept that both deaths diminish us, one from loss and one from uncertainty. I reject all the arguments against capital punishment with the simple logic that allowing the murderer to live forces all of us to endure his continued presence amongst us. It is a constant reminder that we have failed to fix a drastic problem and that we lacked the courage to enforce social order effectively.

I am not arguing for this solution to be used in any case other than 1st degree murder. Crimes of passion are so called  because we empathize and can relate on some level to the course of action that resulted in another persons death. Manslaughter completely lacks the element of intent and if there is no conscious choice then there is no real evil; it’s as random as severe weather. Minors and the mentally infirm are exempt on the grounds that we deem them ineligible to participate in the social compact and therefore have a separate standard for enforcing it’s rules. Only in the case of premeditated murder are we justified in administering so severe a reprisal.

There is one argument that has to be addressed and that is the issue of wrongful conviction. My answer to that is unfortunately pragmatic. Everyone dies at some point and all deaths are fundamentally innocent. Cancer, tornadoes, AIDS, car crashes, bullets or the simple failing of organs are all unfair and not asked for by their victims. I don’t have tremendous faith in the intelligence of most people, especially those that can’t figure out how to avoid jury duty, however we have an adversarial system of criminal prosecution for a reason. Both sides should be able to mount as vigorous a case as possible and when the chips fall it should be reasonably apparent if guilt has been proven. In those cases where someone is convicted wrongfully and sentenced to death, well, it’s just one of many possible ends for that person, none of them asked for. This one has the advantage of allowing the victim to provide one last valuable service to their society.

Tell me your thoughts.

 

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Comments
  1. Sean says:

    I have a few reasons why I’m fundamentally against the death penalty, even if it’s a tempting thing to wish for in some cases.

    1) When we give the state the power to end the life of a citizen, there is a very dangerous precedent being set in which we accept the right of the state to have the power of life and death over us.

    2) Are you really sure you’re killing the right person? With DNA evidence becoming available in ~1992, the rate of exoneration and pardon from death row has increased substantially; how many innocent people have been murdered, then, for lack of evidence? To quote The Lord of the Rings: “Many that live deserve death. Some that die deserve life. Can you give it to them, Frodo? Do not be too eager to deal out death in judgment. Even the very wise cannot see all ends.”

    3) What about people who are beyond rehabilitation because they’re sick, or simply evil? If you really want to punish them, truly, for what they have done, what fate is worse than being locked in a small room for the rest of your natural life?

    • The Walrus says:

      All valid and great points…but no solution will be all things to all people. I don’t know what the answer is, ultimately, but it’s not incarceration.

      Perhaps waterboarding, now that it’s legal and ethically sanctioned? (Whistles innocently)

  2. Those are great quotes both, especially the Morey one.

  3. Every post of yours I read, I like you more. I’m in complete agreement, and not because I happen to live in the most killingest state in the states. For your masterful assessment of the term “illegal alien” alone this post was well worth reading. But, although liberal myself, I also agree with you on this topic for one reason and one reason only. Someone who has committed a crime this heinous should never have the chance to do so again. Death is the only measure that is 100% effective in precluding more crime from THIS criminal. The criminal justice system is already at a disadvantage. To ensure that someone isn’t punished without committing a crime, we cannot prevent the first crime. However, in my opinion, a criminal justice system MUST be devoted to precluding future crimes from those who have already committed some. The more extreme the crime, the stronger the methods to preclude recurrence. I feel for those wrongly convicted. But I feel no less wrongly for those murdered in their homes by people with police records a mile long, often including murder previously. (That’s what kills me, if reading up on serial killers, how most have records that include sexual violence and/or murder multiple times only to be set free to do so again). I have two more apropos quotes for you: I don’t think we should give free room and board to criminals. I think they should have to run twelve hours a day on a treadmill and generate electricity. And if they don’t want to run, they can rest in the chair that’s hooked up to the generator. –Sean Morey Hanging one scoundrel, it appears, does not deter the next. Well, what of it? The first one is at least disposed of. –H.L. Mencken

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