Jane Coaston
Today on “The Argument,” is there a moral argument for the death penalty? ("The Argument" is a podcast of the New York Times.)
On July 1, the Department of Justice halted executions of all federal death row inmates, and just this month, more than 20 Democratic Congress members asked the department to go even further, to stop seeking the death penalty at all. Joe Biden is the first president in American history to openly oppose capital punishment, which is a sharp contrast from his predecessor, who carried out 13 executions in the last six months of his term.
I’m Jane Coaston. And there’s this essay that’s stuck with me through conversations around if and how the death penalty might change under Biden, and what this might mean for the idea of justice in this country. It’s by writer Liz Bruenig, who, in December of 2020, traveled to Terre Haute, Indiana to witness the execution of Alfred Bourgeois, a man who had been found guilty of crimes including the murder of his two-year-old daughter. The piece she wrote for The New York Times is called “The Man I Saw Them Kill.” Liz opposes the death penalty, but sitting next to the family of his victims, she writes, quote, “The impulse to erase from the Earth every trace of a crime as monstrous as Mr. Bourgeois’ still arises in me, pitting my emotions against my intellect.” I know what that feels like. Personally, I was raised in a Catholic tradition, which declared the death penalty inadmissible in all cases three years ago. But I also recognize that there are people from different traditions who believe that the death penalty can be the right form of truly just punishment, like Dispatch senior editor David French. David and Liz, who’s currently a staff writer at the Atlantic, occupy different sides of the death penalty debate, and have each spent years thinking about the morality of this punishment. They both approach the death penalty from a religious standpoint, but even if you’re not religious or spiritual, I think you’ll still find our conversation thought-provoking. I know I did. We started with Liz’s experience attending this execution last December.
Liz Bruenig
I was already against the death penalty, always had principles against it, but emotionally, I was as periodically as motivated as anyone to see someone get it. I mean, there have been many cases that I have read about in my line of work, and also just as a consumer of news, where I’ve thought, yeah, this person doesn’t deserve to live. I didn’t especially walk away with another feeling in place of that one. It isn’t that I became sort of righteously, you know, defensive of the people involved, though I don’t think they should be killed. I just realized that the satisfaction and the sense of rightness that I had always suspected would be there in the wake of an execution was not. There was nothing. There was nothing. So it was replaced with this sense of the just hopelessness and despair of the whole enterprise, and the sense that it should be shut down.
Jane Coaston
Something that’s interesting for me, Liz, is that we both come from the same religious tradition, that opposes executions bar none because it is an attack on the inviolability and dignity of the person. But David, you come from a different religious tradition, and you wrote a piece a couple of years ago for National Review saying that the death penalty preserves the dignity of life. You reference not just the Old Testament, you also reference the New Testament, specifically Romans 13 saying that the power of the sword should rest with the government, and that that should hold terror for those who do wrong. And so I was interested to hear how your faith informed your support for the death penalty in a different way, and how that argument works for you.
David French
I would say this about where I am on the death penalty. I have long believed that the death penalty is not per se unjust. In other words, that the idea that the death penalty is contrary to the will of God as a Christian is not — that the death penalty can be just. There’s a wide variety of belief on the evangelical Protestant side, which I’m an evangelical Protestant. There is a general consensus that the death penalty itself is not unjust, that, in fact, the death penalty can be the only truly just penalty, given the gravity of the crime, given the gravity of what has occurred. That doesn’t mean that mercy shouldn’t intervene. There’s a difference between the concept is the death penalty per se unjust or can the death penalty be just and the application. And this is where I think other biblical principles begin to come into play, biblical principles requiring certain levels of evidence, for example. So even in the Old Testament, Jane, there was a standard of proof, for example two witnesses. Also, there is an abhorrence of sort of unfairness or favoritism or, to use a more modern term, discrimination. The Book of James talks very clearly about how there shouldn’t be favoritism between rich and poor, but here in the United States, in many ways, it’s almost as if there’s a point at which you reach in which you could be too rich to be executed, practically. And also, we have a long history in something that we should talk about of racial disparity in the application of the death penalty. And so my question with the death penalty in the United States has not necessarily been is the death penalty per se unjust, it is do we carry out this penalty in a way that is unjust.
Jane Coaston
There is a Christian understanding of what justice means and there is a secular American understanding of what justice means. Sometimes, after a conviction in a case, and you hear from the victim’s family saying that justice was done. But with what Liz was saying is that after the execution, there was no sense of this is finished, that there has been something sought. Nothing changed. There wasn’t the return of a life, there was a loss of another.
David French
Yeah, I thought that was incredibly powerful. I mean, the entire — Liz, your entire piece was incredibly powerful, but that part at the end, I think, was very powerful. And to me, it illuminates a difference between justice and vengeance. So justice, to me, is something that does the penalty fit the magnitude of the crime. Vengeance is something that is much more aimed at creating a sort of sense of emotional satisfaction in punishing another person for their role in a crime. And so vengeance is what leads to excessive punishment. Vengeance is what leads, often, to cruelty, because you’re seeking, in many ways, that satisfaction, that sort of sense of emotional closure that is often completely elusive and often completely impossible to attain, whereas justice is something that should be disconnected from the sense of emotional satisfaction, which is an incredibly subjective thing. The question with justice is what punishment fits the crime, what punishment conveys the gravity of the crime, for example, regardless of whether it makes us feel satisfied or vindicated in its imposition, because if we condition punishment on that subjective sense of vindication, especially when that is often filtered through things like racism, it’s often filtered through classism, it’s often filtered through all of the kinds of the national and ethnic hatreds that have so distorted life in the United States and across the world, then that’s when you begin to get into that vengeance and that punitive spirit that can be so destructive. Justice, to me, is different. Justice is something that should be, as much as possible, disconnected from the emotion surrounding the incident.
Liz Bruenig
So I think that’s true. I think justice and vengeance are distinct things. The question is, is it possible for humanity to practice them as separate principles? I sincerely doubt it because we are guided much, much, much more by our emotions than our rational minds. So if you look at, for instance, the idea that the death penalty is the only fitting punishment for certain crimes, this immediately seems to produce a logical problem, which is we put Alfred Bourgeois to death, for instance, for killing a single person, so a death for a death. We also put Timothy McVeigh to death for killing 168 people, and injuring more. So was it the case that Tim McVeigh wasn’t punished? How was that just? Or if the proportionate punishment for killing 1,000, a million, 6 million people, like Eichmann got — if that is the only proportionate punishment, and it’s also the only proportionate punishment for killing a rival drug dealer in a gunfight, it seems to suggest that maybe there just isn’t any proportional punishment or any way to draw proportion with certain types of evil, and that trying to figure out a way to approximate the level of evil in our response is just kind of leading us further down a path of degradation and madness.
David French
You raise some very good points. And I don’t, in any way, believe that the death penalty is the just response to any killing. I do believe that there is a combination of premeditation plus any number of aggravating factors is sufficient to render a death penalty just, provided there’s sufficient evidence. But you’re right, I mean, there is an enormous range of evil that can occur beyond killing one person or two people or, in Timothy McVeigh’s circumstance, more than 100 people or, in Hitler, 6 million, but when you’re focusing justice on one person, there is only their one life. There is no way to really exact upon a person the full toll of 6 million lives or 200 lives.
Jane Coaston
Especially because I think that, at some level, the death penalty has been positioned in a lot of different ways. We see it positioned, as David has noticed, as an idea of seeking justice, as seeking justice for the murder of an innocent person. That’s how you put it in National Review article. But we also see it positioned as a deterrent to future crimes. One, does the death penalty act to deter people from committing violent crimes, and two, is it worth it, even if it did?
David French
I’ll say I am very much opposed to the use of criminal law as a deterrent. Criminal law should be an instrument of justice, not deterrence.
Jane Coaston
So it should not be to ensure that other people don’t do the crime.
David French
For example, if you want to look at one of the worst legal developments of the last 30, 40 years, it would be the three strikes and you’re out law, which contributed to mass incarceration. That was essentially saying, we’re going to try to deter crime by increasing the penalty for the particular crime that we are adjudicating, but we’re going to make an example of you so that others do not follow your example. Justice is not the punishment is the crime. Justice is the punishment should fit the crime. And the deterrence function there, I think, is a very dangerous road to go down on, and it is one reason why we have mass incarceration, which is criminal law as social engineering, rather than adjudication of justice. And that took us into some very bad places.
Liz Bruenig
Yeah, I would agree that the deterrence angle has been extensively studied, as well, and the findings are inconclusive. Part of the problem is that the death penalty is so arbitrary, right? About half of states have it, and we have it federally, and then the others don’t. And then you have prosecutorial discretion, and prosecutors can just decline to seek it. Even if it’s a capital qualified case and you’re in a state that has capital punishment, prosecutors can just decide not to. And there are all kinds of items of random chance that factor into death penalty sentencing. So for instance, a majority female jury is much less likely to hand down capital punishment than a male/female equal death qualified jury. And there’s just no telling if you’re going to get that draw or not. And then you look at all the people remaining on federal death row after what Barr and Trump did, the 13 who were chosen were not first in line. They were not executed because they had been there the longest and their number was up. They were handpicked according to a criteria we don’t understand. And so when you’re thinking of putting yourself in the shoes of someone who’s going to commit a crime, A, most people who commit crimes don’t think they’re going to get caught. And then even if you think I’m going to get caught, there’s just so much uncertainty.
Jane Coaston
The involvement here, whether it’s former Attorney General Barr, whether it’s judges sentencing people to death, whether it’s juries sentencing people to death, the involvement here is all people, people who are fallible. I think about this a lot because one of the strange instances that happened during the trial of serial killer Ted Bundy is that Ted Bundy defended himself in court. And he had gone to law school, and the judge seemed to be pretty supportive of him, said that I don’t feel any animosity towards you, I want you to know that, I wish we could have met under different circumstances. But that same judge could have sentenced any number of less likable, less charming people. We are all, again, fallible beings. People are involved in this decision. How can we make this decision as people?
David French
Let’s attack this from two angles, one sort of a biblical angle, one from an American constitutional angle. So on the biblical angle, I mean, frankly, I find that a very compelling argument, except that the one thing that I would note is that when God implemented the death penalty in the levitical and mosaic law, and then sanctioned it, arguably, in the New Testament, we’re talking about still systems that had human beings in them, so that the very presence of the human system doesn’t invalidate the possibility of death penalty as a just system. But that’s an abstract point. Here’s a concrete point. There’s an American justice system that we’re talking about. The American justice system is not the same as all other justice systems in the world. I think there are some that perform better than ours and there are some that perform worse than ours. And the way in which our system performs poorly is it becomes most obvious and stark when we pull out and we talk about the death penalty. So we have dramatic racial disparities. We have dramatic class disparities. We have a situation, and you will have a trial counsel, for example, that’s an under-resourced public defender, and an enormous amount of the record of the case and the record of the entire litigation is set at a time where an under-resourced, maybe under-experienced person is defending before groups like, say, the Innocence Project, or more, better-resourced public defenders, or non-profits get involved. And so you have a system in the United States that, on multiple fronts, is very, very troubling in its application. And so I think that that’s where, if you’re talking about both biblical and a constitutional concept, the death penalty is permitted. It is a just punishment. However, the death penalty as performed in the United States of America begins to violate other biblical and other constitutional concepts. And so everything that you just said, Jane, and everything that Elizabeth said earlier about the randomness here is what is so deeply troubling to me about the death penalty as applied in the United States. And I think that those people who are like me, who believe that the death penalty can be just in specific circumstances, that’s not the end of the inquiry. And that’s where you’ve seen a lot of conservatives, myself included, have real conflict.
Liz Bruenig
Right. To the degree that you can see biblically God sanctioning or even commanding the death penalty, the laws in those circumstances are laid by God himself. And that’s not the case in the United States of America. We actually make our own laws, and we decide what particular crimes and what aggravating circumstances, and then we add a whole other layer of bureaucratic randomness. And then we choose based on our moral intuitions because we’re a liberal democracy. And the way we should feel about it, there is so much fallibility, as Jane said, that’s involved in settling that question. I just turn it over to god. He’ll decide. We can protect our societies. We can attempt to rehabilitate. We can attempt to teach using our criminal justice system. I think those are both appropriate uses. And I think those are provisional measures that are fitting in terms of what we actually have the capacity to know and do as humanity. There are two trees in the Garden of Eden. There’s the knowledge of good and evil, and there’s the tree of life. And we don’t have perfect knowledge of good and evil, nor do we have perfect knowledge of life. So those, to me, are just areas where we just have to cede the ground to the Lord.