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Pope Francis’s visit to the United States brought a tide of stories not directly associated with his address to Congress, but one matter he did discuss — and subsequently followed-up on — seems to have slipped past with little discussion. To wit, Francis found time between his surreptitious visit with Kim Davis and various other activities to have a curious letter be written on his behalf to a Georgia parole board requesting clemency to one Kelly Gissendaner, who had been sentenced to death for her involvement with the murder of her husband in 1997 by her lover. Regardless, Gissendaner was executed on Wednesday after various appeals were denied.
The pope’s position on the death penalty is, at the very minimum, consistent with his position on abortion. But foolish consistency can be the hobgoblin of small minds. It’s one thing to be consistent, but it’s another thing entirely to be morally consistent. That’s where my position on the death penalty comes in. It seems appropriate to draw distinctions between the taking of innocent versus guilty life.
Our system of criminal justice — and, thus, our use of the death penalty — is based upon retributive justice. This is distinct from “revenge,” which has a connotation of arbitrariness, disproportion, and emotionality. Under retributive justice, we punish wrongdoers in a fashion meant to be in proportion to their offense. In the case of property crime, offenders will frequently be imprisoned for some period of time in proportion to the severity of the damage suffered by their victims and, in some cases, face a financial penalty. In the case of murder, it should be obvious that nothing could replace that which was taken. What financial sum could replace a life? What term in prison could serve as just retribution equal to another person’s value to society? The answer, of course, is none but we attempt to do so by imprisoning people for the remainder of their natural life without the possibility of parole.
There are certain situations where this may be appropriate, but it is morally insufficient, nonetheless. Justice demands that the perpetrator should be made to surrender his life in recompense for his theft of another’s life. This is why we need the death penalty. Not because killing murderers will restore to life those whom they’ve taken, but because it’s the closest we can humanly get to extracting a measure of justice equal to the crime. It is also why we need to reform the death penalty so that it can be applied both with greater frequency and with an eye towards increased justice.
There are varying degrees of murder ranging from those committed in a “heat of passion” all the way up to deeply premeditated, cold-blooded slayings, and mass-murders too heinous for morally normal people to contemplate. The case of Kelly Gissendaner falls neatly into the second category. It’s also a case of where the death penalty is seen as being applied unequally.
The moral case for executing Gissendaner is fairly simple: even though she did not directly carry out the deed of murdering her husband (she left this to her lover; we’ll get to this in a minute) it is arguable that she used another person as the murder weapon. Further, she could have prevented the murder at any time merely by revealing the conspiracy but chose to allow it to be carried out with complete malice aforethought and in full understanding of the penalties that might accrue to her. Compounding the felony is the fact that the victim was her husband, with whom she had several children. This reveals in Gissendaner a sort of moral turpitude, remorselessness, and contempt for society’s standards that should merit death as punishment for her actions on their own.
(The complication in this situation is the fact that Scott Owen, Gissendaner’s lover and accomplice, actually carried out the killing and will be eligible for parole. There are good reasons for this apparent injustice. Prosecutors offered both perpetrators plea bargains that would have spared them the death penalty. Owen accepted the deal, and rolled over on Gissendaner who was subsequently convicted and sentenced to death.)
Critics of the death penalty cite several reasons for wanting to do away with it. None (save one, in my estimation) are sufficient to justify its abolition. The arguments range from the moral (the state shouldn’t kill people) to economic (the death penalty is expensive) to the practical (you can’t un-kill people whom you’ve erroneously put to death.)
The first two arguments are sophistry. The same people who are opposed to the death penalty on so-called moral grounds probably have no issue with police officers carrying guns which they could use to kill people in the process of apprehending them. Barring genuine pacifism — an inherently immoral position that relies upon the assumption of other people doing violence in one’s stead — they likely support state power used to kill people on a scale that eclipses by orders of magnitude potential deaths by execution. Many such deaths are even less justifiable than execution, being as they are frequently the result of accidents. But we live in a world run by flawed human beings and we understand that (lamentable though they are) mistakes are inevitable and we don’t throw up our hands and give up on the whole system as a result.
The second argument, regarding expense, is both laughable in comparison to the gravity of the first objection, and deeply ironic, as the very people calling attention to it are those most responsible for its existence. Their complaints are akin to a child who killed his parents pleading for amnesty on the grounds of his being an orphan. If these people were being honest brokers, they would be looking for ways to streamline capital punishment. Their argument isn’t even effectively against capital punishment, so much as the legal system itself.
That leaves us with the most persuasive argument in my mind: that you can’t unkill people who might later be exonerated. Obviously, the unjust killing of a person by the state — intentional or not — is a grave concern and something that needs to be avoided. Which brings us to how the death penalty ought to be reformed.
There are certain, high profile cases where the use of the death penalty is hard (in my estimation) not to justify. The case of James Holmes — who murdered 12 in Aurora, Colorado in 2012 — bears examination. There was never any doubt as to whether Holmes had committed the murders. Indeed, his defense team never even attempted to assert that he was innocent; their defense rested solely upon the concept that the defendant was so mentally unhinged that he was incapable of telling right from wrong. The prosecutor, District Attorney George Brauchler, had the option of offering Holmes’ defense team a plea bargain involving life without parole in exchange for a guilty plea but, in the interest of justice, he sought capital murder charges.
We all know how this turned out. Holmes was convicted of capital murder on all counts, along with various other assault and weapons charges, but a single juror out of twelve decided against giving Holmes the death penalty. Instead, he will now live out his days as a guest of the Colorado department of corrections.
This situation has the effect of reducing the process of justice to a form of Kabuki theater. How can it be avoided in the future?
I’m not a lawyer, but it seems to me that a legislative remedy might be to create a separate class of crime to cover such cases. Let’s call it “mass murder,” a crime defined as the murder of three or more people simultaneously and set the penalty as being a mandatory death sentence, thereby effectively taking the penalty phase out of such situations. In such cases of obvious guilt, why are we wasting time carrying out a prosecution where we rigorously prove with forensic evidence that the guilty party killed each victim? It seems like an odd thing to do, so perhaps legislators need to be able to grant prosecutors the ability to reach for this arrow in their quiver which would quickly clean up a lot of the legalistic baggage being carried around in such a situation.
How can we lessen the expense of death penalty appeals? Why can’t legislatures create a special court whose sole jurisdiction is the oversight of death penalty appeals? This would have the effect of quickly adjudicating such death penalty cases and exhausting appeals (which are infrequently about the facts of the underlying conviction and are more about problems with the process) much more quickly, which would vastly reduce the amount of time between conviction and execution while maintaining the necessity of due process.
Help me out here, lawyers of Ricochet. How can we better attack this problem so that we can utilize this essential tool of justice in a more fair and frequent fashion?Published in