Stuart Banner, the newest Volokh Conspirator, wants to know why the death penalty gets so much more attention than other flaws in our criminal justice system that work terrible suffering and injustice on much larger numbers of people. [This assumes what I’m not willing to concede without an argument: that capital punishment is unjust. Some thoughts on that issue here.]
Banner asks a reasonable question. I think I have part of the answer.
In the story of the Spanish conquest of the New World I was taught in school, the practice of human sacrifice by the Incas (and the Maya?) was taken as evidence that the New World peoples were in some sense less civilized than their conquerors. Yet at the very same time, the Spanish Inquisition was burning people at the stake, which might reasonably be thought of as a version of the same thing: ritualized killing for religious reasons. Reflecting on that history, it occurred to me that from one perspective the execution of criminals is simply another version of the same thing. That would account for the utter horror with which many people seem to regard the practice. I don’t share their view, if I’m right about what it is, but it does make sense of their fixation on the problem.
It’s a little like the abortion question: I think there are good reasons to reject the proposition “Abortion is murder,” but it’s not a silly thing to say, and if it were true then very strong opposition to abortion would follow as a matter of course.
If real human sacrifice were somehow incorporated into our public practices, even very rarely — if a virgin selected by lot were thrown from the top of the Capitol at every Presidential inauguration, say — I would regard opposition to that practice as virtually an absolute litmus test of fitness for office, and would put energy into abolishing it all out of proportion to its contribution to the homicide rate. To my eyes, executing a murderer after a full trial doesn’t look even vaguely similar, but if it did I’d be writing checks to the Death Penalty Information Center.