Don’t kill him

The words don’t come so easily to me this time, but they are still true. Sparing the life of a sick person who committed an atrocity is the most worthy thing we can do.

Today’s New York Times reports that San Diego federal judge Larry Alan Burns was appointed to oversee the Tucson murder case. Apparently, one factor in his selection was Burns’s experience in federal death penalty cases.

Until I read that, I hadn’t thought much about what would happen to Jared Loughner, who committed this atrocity. I don’t oppose the death penalty in all cases, certainly not in all cases of mass murder. I don’t know very much about Loughner’s many victims, either, whose ranks include Christina Taylor Green, a wonderful nine-year-old girl. President Obama noted in his very moving memorial:

Christina was given to us on September 11th, 2001, one of 50 babies born that day to be pictured in a book called “Faces of Hope.” On either side of her photo in that book were simple wishes for a child’s life. “I hope you help those in need,” read one. “I hope you know all of the words to the National Anthem and sing it with your hand over your heart. I hope you jump in rain puddles.”

As the father of two wonderful daughters, I can’t say that I would sleep less soundly if her killer was banished from this earth. Some of the usual arguments against execution don’t apply here. There is no doubt about Loughner’s guilt, or about the depravity of his actions. If I believed that executing him served some useful purpose, I would pull the lever myself.

But what good would be served through the ritual sacrifice of this sick and disturbed young man? How would that help us to create a safer, more worthy society? How would taking the life of a schizophrenic maniac heal his victims or console the survivors? I just don’t see it.

The statistical case for the death penalty is–to be polite–inconclusive. I’m ready to be convinced that we should execute specific perpetrators of calculated crimes: people who get paid to kill of federal witnesses, for example. I would consider the death penalty for specific terrorists, organizers of deadly conspiracies, perpetrators of genocide. Not for this. Not for simply meting out vengeance on a small person who committed a large crime.

President Obama suggested: “If there are rain puddles in heaven, Christina is jumping in them today.” I don’t believe in heaven. Still, these words brought me to tears because they conveyed the individual humanity of a precious little girl who is with us no more. They made me want to lash out, to kill the person who killed this little girl.

Yet that very image reminded me of a George Orwell essay I read in college. In “A Hanging,” George Orwell writes:

It is curious, but till that moment I had never realised what it means to destroy a healthy, conscious man. When I saw the prisoner step aside to avoid the puddle I saw the mystery, the unspeakable wrongness, of cutting a life short when it is in full tide…. His eyes saw the yellow gravel and the grey walls, and his brain still remembered, foresaw, reasoned – even about puddles. He and we were a party of men walking together, seeing, hearing, feeling, understanding the same world; and in two minutes, with a sudden snap, one of us would be gone – one mind less, one world less.

In his madness, Jared Loughner seems not to comprehend the unspeakable wrongness of destroying human life. The rest of us can see more. President Obama noted that we “commit ourselves as Americans to forging a country that is forever worthy of her gentle, happy spirit.”

The words doesn’t come easily to me here, but they are true. Sparing the life of this sick person who murdered a gentle, happy little girl is the most worthy thing we can do. There’s enough death and killing in the world.

Author: Harold Pollack

Harold Pollack is Helen Ross Professor of Social Service Administration at the University of Chicago. He has served on three expert committees of the National Academies of Science. His recent research appears in such journals as Addiction, Journal of the American Medical Association, and American Journal of Public Health. He writes regularly on HIV prevention, crime and drug policy, health reform, and disability policy for American Prospect, tnr.com, and other news outlets. His essay, "Lessons from an Emergency Room Nightmare" was selected for the collection The Best American Medical Writing, 2009. He recently participated, with zero critical acclaim, in the University of Chicago's annual Latke-Hamentaschen debate.

26 thoughts on “Don’t kill him”

  1. Put it in your will, or last directives.

    "If I am murdered, do not seek the death penalty."

  2. Albert Camus wrote "Reflections on the Guillotine" which also begins with an actual execution, and with the sense of degradation that follows it. One of his finest essays.

  3. If you don't oppose the death penalty in all cases, then one type of case in which you are willing to have it imposed is the case in which the defendant is innocent. You cannot avoid that, so you ought to have a pretty good reason to impose it on anyone — a reason that is worth killing innocent people for.

  4. I'm not sure I agree with Henry. I'd reserve the death penalty for truly horrific crimes, with not a shadow of a doubt as to culpability, and only after a lengthy and well-funded appeals process. But I do feel there are some crimes so truly awful that a societal verdict that the perpetrator has forfeited their right to continued existence is the answer. I concede that even my "not a shadow of a doubt" standard could fail – maybe there was an extremely well-done frame-up, for example – but I'm not sure it's a likely scenario, especially when only a small number of inconceivably awful crimes qualify.

    In a sense, maybe the right answer is Israel's: the country doesn't have a death penalty, but nonetheless when they've got custody of a world-historic monster like Eichmann the only answer is to give him a fair trial and then execute him. Looking it up, I see that this story is incorrect – Israel did and does have the Death Penalty for a small number of extreme crimes, including Genocide and Crimes Against Humanity (and, less dramatically, Treason). I like the version I first told better, though – it has more poetry. And Eichmann is the only person they've executed in a judicial process, and I really hope no-one sidetracks this with a discussion of Targeted Killings, which is an interesting topic but isn't this one.

    In a sense, the truly frightening thing about criminal justice in the US isn't even the injustices meted out to some of the people on Death Row, it's the rest. Yes, we have denied some of the people on Death Row any semblance of true justice, and we have executed the innocent. Yes, attempts to reduce the legal recourse afforded to those who might be wrongly sentenced to Death are appalling. But aren't there actual cases of defendants trying to get charged with the death penalty, because without the attention and the pro-bono lawyers the death penalty attracts they have no chance of receiving a competent defense? I would hope anyone would read some of the stories about the phenomenal degree to which public defenders are underfunded and overstretched; this has long been especially true in the South, but it's becoming ever more of a problem elsewhere, especially with the states facing big budget troubles.

  5. Warren,

    You concede that your "not a shadow of a doubt" standard could fail and that an innocent person could be executed, yet you offer no justification for taking that risk, except that some crimes are "truly awful." No one denies that some crimes are "truly awful," but that's not a reason for the death penalty, let alone a reason that can override even a minute possibility of executing an innocent person.

    Since human beings cannot judge guilt beyond the shadow of a doubt, I suggest that imposing the death penalty on the basis of a conviction by proof of guilt beyond the shadow of a doubt (and ipso facto by proof of guilt beyond a reasonable doubt) violates due process.

  6. Henry, I did concede that even when we try our very hardest and only apply it to the most extreme of crimes, we may still get it wrong, although our getting it wrong may require the existence of so powerful a conspiracy as to make our application of an unjust death penalty the least of our worries. But there are some crimes for which I can nonetheless see no other answer. I'd argue that genocide – full-on responsibility, leadership role and everything – is such a case. Do you really disagree?

  7. Warren, Hitler might have "deserved" the death penalty, although the death penalty might be viewed as a relatively easy way out, because, once you're dead, you cannot suffer. But what do you mean, you "see no other answer"? You don't mean that literally, because surely you're aware of life in a maximum security prison. You are responding to "truly awful" crimes emotionally, and such a response has little place in making good policy judgments, such as whether there are any benefits to the death penalty that outweigh the risk of executing innocent people. You say that you'd argue that genocide should get the death penalty, but you do not argue it. You just tell us how you feel.

    I placed "deserved" in scare quotes because that too is an emotional word — which you do not use but that I think fair to impute to you. We have no way to measure deserts, other than an eye for an eye.

  8. To be clear, I should have added that I assume that you to not subscribe to "an eye for an eye," because you do not favor the death penalty in the case of every murder.

  9. I see no good reason for executing anyone, ever. There seems to be no good utilitarian argument. And I can't figure out the difference between retribution and self-satisfying (at least in theory) vengeance.

    But what can I say – I'm a materialist. We are all caused, and as such, we aren't ultimately "responsible" for our actions. So once utility is satisfied, compassion seems the only serious option.

  10. Rather in line with Harold's comments, I came to a realization about the death penalty some years ago that seems to be the crux of the matter for me. All of us death penalty opponents, we can have pragmatic arguments about the effects, which is dicey, or moral arguments that end up feeling very chilly and absolute.

    What I realized was that the *purpose* of the death penalty in the eyes of many people is to make human life precious, dear. But the thing is that the death penalty invariably cheapens life.

    If a mere judge and jury and a few other institutional players can take a life so easily and, er, bloodlessly, then life isn't really worth anything, is it. It's a classic case of the ends and the means totally not matching up.

  11. human beings cannot judge guilt beyond the shadow of a doubt

    Oh, really? You think there's a shadow of doubt as to whether Jared Loughner really killed those six people?

    How can there not be any cases where we know beyond the shadow of a doubt that the accused is guilty?

  12. There's no question Loughner shot many people and killed six of them. There's no question, either, that he's insane. Whatever the LEGAL definition of "insanity" may be, shooting a bunch of random people is not "sanity" in any real sense. He may be so sick in the head that putting him down like a rabid dog is the merciful thing to do, but I'd see that more as euthanasia than as a "penalty".

    I feel compelled to add that buying a couple of 30-round clips for a Glock is an early warning sign of insanity in the first place. But I know that's just crazy talk.

  13. "Oh, really? You think there’s a shadow of doubt as to whether Jared Loughner really killed those six people?"

    I do not think that there is a shadow of a doubt, but I'm human, so I could be wrong. As Warren Terra said, there could have been an extremely well-done frame-up. Perhaps they have substituted a look-alike for the real killer.

    The point is that, no matter how certain we are in Loughner's case, there will be other cases in which the a jury will find guilt beyond a shadow of a doubt even though the defendant is innocent. If the law is on the books, it will inevitably be misapplied on occasion.

    The other point is that the law does not require guilt beyond a shadow of a doubt. It requires guilt beyond a reasonable doubt, and, under that standard, 138 people have been freed from death row on the grounds of innocence since 1973. (Google "innocence list.") It is impossible that we have caught all our mistakes.

  14. Eli asked for a utilitarian argument. Sirhan Sirhan has been in the slammer for, what? 43 years. And the cost of his jailing is not too far off the cost of an extra class room in a school for that time. 60 kids in two class rooms of 30 rather than in three class rooms of 20 for all that time. There's the China practice of harvesting organs from the condemned – Haley Barbour gave us our own version in allowing two sisters out of jail if one would give an organ to the other. So it's not true that there is no utilitarian argument.

  15. Funny that you should use Sirhan Sirhan as an example of someone on whom we could have saved money by executing, because there is a serious question as to his guilt.

    Also, it is well-established that the death penalty costs more than life imprisonment.

  16. Henry,

    What are you talking about? According to Wikipedia:

    The guy who shot Kennedy was subdued at the scene by at least four witnesses, none of whom ever claimed it wasn't Sirhan Sirhan. Other witnesses testified that Sirhan had practiced with his gun and explored the ambush site in the days before the attack; one witness even claimed Sirhan said a month before the attack that he intended to shoot Kennedy. His defense at trial – apparently one of several strategies attempted, including an attempt at a guilty plea – was an insanity plea, not a claim that he didn't shoot Kennedy. Even his own most recent appeal, which alleges some sweeping governmental conspiracy, admits he shot Kennedy but claims he must have been hypnotized to do so. Either a patsy was framed with the connivance of dozens of people, including close friends of Kennedy, who've kept mum for forty years — or there aren't serious questions as to his guilt. There may be questions about his mental state and capacity for responsibility, perhaps – but questions about his guilt?

    dave,

    I know you're discussing a possible utilitarian argument, and with your mention of organ harvesting I think you're satirizing it, but I hope it isn't your position that we should kill prisoners to save money on imprisoning them. For one thing, as Henry points out, the death penalty is actually more expensive, because of all the legal battles over each one – leaving us with the options either of abandoning the idea of cost savings or of reducing the possibilities for appeals below a level that's already demonstrably failed to protect innocent convicts.

  17. Warren, questions about mental state and capacity for responsibility can foreclose legal guilt. You are using "guilt" to mean "pulled the trigger," whereas I am using it to refer to legal guilt.

  18. Capital punishment should be banished from our society without qualification and consigned to the trash heap of history, like chattel slavery. (Ten years ago I would have offered torture as a second example; I would have been wrong.) Most nations whose history and values resemble ours have in fact come to that conclusion. They are right, we are wrong; and they tend strongly to have lower homicide and other crime rates. (I do not argue causation there, but the correlation itself is relevant.) I am pleased that my home state of Wisconsin abolished capital punishment in the 1850's, one of the first jurisdictions in the world to do so. That makes me more safe, not less so.

  19. I can understand arguments against the death penalty based on the lack of reliability in the system, disproportionate impact in minorities, etc., but you make an argument from pure sentimentality, and I don't buy it.

    "Sparing the life of this sick person who murdered a gentle, happy little girl is the most worthy thing we can do." I very much disagree. We could start a fund for the treatment of the mentally ill. We could start a fund to support medical research. We could use this tragedy as an opportunity to raise money and/or awareness for any one of a worthy causes. Sparing Loughner's life seems to me to be far down on the list of "worthy" things we can do.

    I have no special animus towards Loughner; he is obviously sick and, on some level, probably not fully responsible for his actions. Although this may well be true of most murders, I don't know that he should be a candidate for the death penalty. But I think it fair to say that there are some murderers who have forfeited their right to live, and I wouldn't lose sleep over the imposition of the death penalty in these cases. Governments have been executing murderers probably since the origin of government, and I don't believe that the imposition of the death penalty in appropriate circumstances and subject to appropriate due process is in any way corrupting.

    Let's remove sentimentality from the debate over capital punishment and instead focus on the fairness and accuracy questions.

  20. "some murderers who have forfeited their right to live, and I wouldn’t lose sleep over the imposition of the death penalty in these cases."

    DRF, what is that but sentimentality (or reverse sentimentality, if you prefer)? It merely expresses your feelings. You're entitled to your feelings, and so is the person who would lose sleep over any imposition of the death penalty, because he or she feels that all murderers are human beings who have the potential to change and do good.

    Thus, I agree with you: "Let’s remove sentimentality from the debate over capital punishment and instead focus on the fairness and accuracy questions." Our only difference is that I believe that those questions have been settled. As for fairness, the Supreme Court acknowledged that a black defendant who kills a white person stands a far greater chance of getting the death penalty than with any other combination of defendant and victim, but the Court had no problem with that. As for accuracy, 138 people have been released from death row since 1973 because they were innocent.

  21. I think that once you have someone in your power and they are no longer a danger, to kill them is murder whether done by an individual or the state.

  22. The problem with the death penalty in a democracy is not that, as the facile phrase goes, "that we kill people to show that killing is wrong," but this: the death penalty shows that, as is obvious from our obscene "defense" budget, we think killing is a-ok, the more the better, when the proper WE get to decide which of THEY get the needle or the Predator drone attack. But a democracy can't kill the way the old church-states and tyrannies did … In a democracy, everybody's equal, and so the UNauthorized killing that separates murder from a day at the office for so many Americans is exactly the weak spot, because once we admit that we like killing and that killing people is a good idea if it furthers your goals, well then, what really happens is most predictable: some people remember the part they like … The killing … And forget that you have to be on the approved list of Poobahs authorized to make the call.

    America, a country founded in the spirit of "who the he'll are you to tell me what I can and cant do" is the country most likely to have people who see the warts and pettiness of elected officials and to know in their hearts that they could do a better job in their sleep —so we should expect to see and we do see plenty of people who take the clear message of our policy and our national love of violence, and they simply apply themselves as Americans,using that good old American belief that they are just as good as anyone in government, and that any decision anyone in government can make is the is to make as all.

    If I were a politician in the US, I would make abolition of the death penalty a priority if only out of self preservation. Between the internees and TV, there's simply no less majesty left to protect the politicians from the well-armed but disgruntled. Deep down, Americans believe in fairness, and they'd kill a lot fewer people if the government would as well.

  23. Dave Schultz, saving money is a utilitarian argument, but I think not a very good one. Risking harming more people by allowing one free is a good argument for incarceration. The possibility of one reforming is a good argument for for leniency. But saving money seems less an argument for killing someone than for well, saving money. We make calculations everyday in which we spend incredible sums of money just to save a life.

    Again, I point to my materialist perspective: even assuming we *could* save money, he is not ultimately responsible. In which case it seems unjust for us to kill another human being. That, I realize is not a utilitarian argument. It goes to the squishy concept of "decency". Which in the end is more an expression of humility on our own part than anything else.

  24. Ken, the Great Lakes obviously make one smarter, especially Lake Michigan … Michigan abolished DP in 1837 if I recall right, and is unique in never having since changed. Right now, abolition is even in the state constitution, thanks to some courageous and far-sighted Republicans at the Con. Convention that produced the 1964 state constitution.

  25. I'm not 100% against the DP, but based on what we've heard thus far, any system that executes this Loughner guy is seriously screwed up. He seems like a poster child for schizophrenia, and I don't see any point in executing psychotics.

  26. the Great Lakes obviously make one smarter

    At the cost of a corresponding decline in professional-football talent.

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