Five guiding principles with which to erect a just regime for capital punishment

Are you asking if I support the death penalty, or if I believe in the sovereign state’s right to kill?  Those questions operate in altogether different universes, and I counsel caution in conflating philosophy with procedure.

But you’re right to ask, now that the federal government has resumed executions of federal death row inmates (three last month) previously suspended since 2003. So far this year, the United States and its component states have put 10 people to death; another five will be executed by the end of 2020.

I support state-sanctioned slaying — it’s the foundational premise of my job. Be it the clandestine raid on bin Laden’s compound or the righteous annihilation of those who opposed America’s unyielding advance up Normandy’s banks in 1944, I accept our government’s inherent right to employ deadly force as among the most justifiably self-evident of all societal truths.

But every right is wedded to its own abuse, and eventually breeds excess. That’s why any defense of state lethality is fundamentally tested when applied to the mode of American capital punishment. And since my dad has cornered the market on debating America’s post-Vietnam foreign policy, I’ll focus this discussion on the domestic context, and explain why I don’t support the death penalty — yet.

What proceeds is the perspective of a veterinarian’s son, who was raised vegetarian because “it’s wrong to take innocent life” but who simultaneously learned that there was no injustice in “putting to sleep” a German shepherd after she ripped apart the family goat a second time. (Of the German shepherd, ’twas said: “This world is inconsistent with her nature.”)

And the thesis of this column is that those who seek to abolish the death penalty are as misguided as those who support its current form.

First, on “justification”:  Our essential imperative must be a shared philosophical agreement that, if done justly, the state should have (and reserve unto itself) the right to kill. If you don’t agree with that, then here we must part ways — for my acceptance of state legitimacy requires that it function as an adequate arbiter of justice, and satisfactory dispute resolution necessitates the full array of options.

Because, if the menu of equitable recourses is lacking, vigilantes will just handle it themselves.  Illustrated: It’s not hard to imagine aggrieved parents resorting to their own ingenuity and enterprise to rectify a perceived deficit in justice if a court’s post-conviction treatment of their child’s murderer is too soft.

(Let’s pause to offer the sanctimonious a chance to pronounce that “an eye for an eye leaves the whole world blind.” Now let’s together note the wholesale failing of that cliché’s basic arithmetic, since “an eye for an eye” leads not to blindness, but rather just to poor depth perception.)

Second, on “rationales”: Capital punishment is generally rationalized pursuant to theories of public security and deterrence, punishment and retribution, or — to a tragically lesser extent — “utilitarian mercy.”

My dad likes to say that the death penalty isn’t a deterrent unless applied to jaywalking. What he means is that the threat of execution won’t dissuade someone from committing a violent crime out of passion, despair, callous disregard, fury, or evil. But, if crossing the street could fetch a death sentence, you’d likely be a tad more conscientious about where you stepped off the curb.

Meanwhile, I’ve always been troubled by vengeance as a rationale, as I presume there’s something intrinsically wrong with people who perpetrate wanton violence. Whether it’s rage or hate or desperation or run-of-the-mill-sociopathy, only the maladjusted, abused, or insane generally act on the capacity to commit violent crime — and something about wreaking fatal revenge on such innately broken people seems unsavory.

That discomfort with revenge informs my adherence to the final theory: utilitarian mercy.  Remind me to tell you about the time I contracted COVID-19 in a war zone. For six dreadful days, the coronavirus ravaged my fever-wracked body, yet it was the resulting mandatory quarantine in a tiny windowless room that truly sucked.

By day nine, I was firm in my belief that life in a barren cage with no hope of escape is a greater violation of the Eighth Amendment’s prohibition of cruel and unusual punishment than a swift and painless execution. So, while I sympathize with those who oppose the death penalty because “rotting in prison is worse,” there’s likely a better use of limited state resources than accommodating retributive sadism. To my mind, utilitarian mercy is the only moral and practical rationale for the death penalty.

But if that’s the death penalty’s ethical framework, is there an ethical defense of the alternative, i.e., forever imprisoning a German shepherd who’s exposed her nature as inconsistent with this world, when “elimination” would serve a just punishment while also freeing up cage space? I’ll give you two.

The first acknowledges that the racial inequality of America’s death penalty is so unacceptably heinous that it fails outright the “this is why we can’t have nice things” test.  Roughly 42 percent of the faces on America’s death row are Black — more than three times their proportion of the U.S. population.

The disproportionate tendency of prosecutors to seek — and of juries to impose — the death penalty against black defendants for comparable criminality smacks of ethnic cleansing. (Yeah, I said it.)

What right have we to remove imperfect people from an imperfect world? If you want an impartial capital-punishment regime, roll up your sleeves and fix every other social ill first, starting with socioeconomic and environmental disparities as well as biases in law enforcement. 

The second ethical defense of a life sentence over a death sentence is that forever caging a dangerous German shepherd equips that veterinarian to rectify her mistake if forensic testing later reveals Lily Goat to have been viciously attacked by a different dog.

Earlier, I noted as self-evident that the state should have the right to kill if doing so could be done justly. But putting into practice that abstract philosophical precept is a complex proposition. 

This is where things break down. Because since 1973, 170 prisoners have been fully exonerated of the wrongful convictions that landed them on death row. For perspective, that’s one person spared the ultimate miscarriage of justice for every 10 people who have been executed (1,522 in total) since America’s death penalty was reinstated in 1976. Are you kidding me?

“Existential Proposition 1” must surely be that state execution of the innocent is humankind’s most egregious social sin. “Existential Proposition 2” follows that a single such instance is worse in moral magnitude than a thousand acquittals of the guilty.

Armed with these companion propositions, I thus bequeath unto tomorrow’s legislators five guiding principles with which to erect a just regime for capital punishment:  

— FIRST, none shall be executed for nonviolent crimes.

There’s a lot of socially destabilizing behavior out there, but a con man who preys on old women’s bank accounts is best imprisoned, not destroyed. This principle ensures that the (capital) punishment fits the crime, i.e., that one should be denied life only where it intentionally operated to deny another’s.

(Is a co-conspirator who helps devise the fatal plan but doesn’t actually pull the trigger nonetheless guilty of a violent crime? In the interest of time and limited column space: sure.)
 

— SECOND, none shall be executed for crimes absent a genuine and knowing admission of guilt — one freely made and restated in court, free from coercion or duress, upon advice by legal counsel.

Whether it’s the notoriety-seeking serial killer who wants attribution for his misdeeds or the genuinely remorseful boyfriend who allowed his murderous jealousy to consume him, this principle is a safeguard guarantee that a perpetrator rationally acknowledges why he’s to be subjected to that most extreme application of state power.

Lacking this awareness or acceptance, the alternative of a (life)long prison sentence will afford plenty of time to come to terms with what’s been done. 
 

— THIRD, none shall be executed for crimes absent corroboration by deoxyribonucleic acid AND the existence of sight-based indicia of unassailable reliability.

This “poison pill” insists on an evidentiary threshold which is, by design, nearly unattainable. If the justice system is to put a dude to death, his culpability must be assured to a mathematical 100 percent.

Fortunately, few violent crimes leave no DNA behind, and much of the recent high-profile violence has been accompanied by that requisite “sight-based indicia or reliability” (e.g., unbiased eyewitness accounts, high-resolution surveillance footage, the first-person camera-phone video with which the perpetrator live-streams his rampage).

If prosecutors can meet this most implausible of evidentiary burdens, perhaps capital punishment is the only proper recourse.
 

— FOURTH, none shall be executed for a crime where there exists a credible rationale for its perpetration.

The wife who kills her husband to spare herself another 15 years of horrific physical abuse, the father who kills his pre-adolescent daughter’s rapist, the sister who kills her brother’s murderer — I mean, there’s murder and then there’s murder, am I right? 

“A Time to Kill” wouldn’t have made the bestseller lists as “A Time to Await Judicial Determination on Defendant’s Third Appeal of the Motion to Stay Proceedings in the Matter of Defendant’s Plea for Rehearing of the Sentencing Case.” 
 

— FIFTH, none shall be put to death except for by well-oiled and industrial-scale guillotine. 

That’s right.  If our society can’t come to grips with the appallingly gruesome messiness of capital execution, then we have no business being in the business. The gas chamber, the electric chair, lethal injection — these are modernity’s innovations to sanitize the experience of punitive state killing, leaving serenely intact the body from which the state has just separated a soul.

And each of these methods has at one time or another gone horrifically awry, presenting a traumatizing spectacle of nightmarishly unconstitutional torment as the dead-man-walked convulses in pain because the toxins missed the vein, or the voltage was wrong, or the nervous system only partially responded to the gas. 

The 21st Century guillotine permits no such mistakes. Advances in machining can independently assemble a self-piloting tractor-trailer without even a millimeter’s deviation in how tightly a rivet is screwed on; if the same technical efficiency is applied to a technologically-perfected guillotine with a blade crafted of the finest Tungsten-Titanium alloy, then the only drawback to this executionary method is society’s “pleasant company” hang-ups.

Quick. Painless. Guaranteed. Theatrical. Certainly, your jaywalking epidemic would be solved.

For the death penalty’s die-hard (pun) supporters, this five-prong approach affords a just and certain resolution to the most egregious violations. And its restrictions don’t limit the broader application of justice; where the death penalty is unavailable because these criteria aren’t met, there still exists a whole slew of draconian measures by which to punish offenders (e.g., life imprisonment). 

For capital punishment’s bleeding-heart (pun) opponents, my approach resolves the core concerns of systemic failure and irreversible mistake; capital punishment would be applied sparingly, rarely, and only when guilt was corroborated, acknowledged, and indefensible.

True: faulty science, biased testimony, false accusations, and — that most monstrous of sins — prosecutorial misconduct will always present the peril of a wrongful conviction, but a death sentence for a crime “beyond all doubt” won’t be an option for convictions attained merely “beyond all reasonable doubt”.

Yes: There are scores of moving accounts of redemption, where the embittered and testosterone-fueled former victim of child abuse kills in his 20s, only to embark post-conviction on a journey of self-discovery through the prison library, emerging as a remorseful pacifist who even obtained his law degree.

So? A silenced victim deserves better than to serve as her killer’s ticket to enlightenment; her life was worth more than that anecdotal reference in the feel-good Dateline special on her murderer’s rehabilitation.

I don’t care what wisdom Nidal Hasan learns behind bars, or what penitence Timothy McVeigh might’ve shown had that meal not been his last. Neither Dylan Roof’s nor Dzhokhar Tsarnaev’s guilt is in doubt.

I’m unpersuaded that the Golden State Killer is too old for death (like, what?). When it comes to avowed monsters like these, I’m less Samuel Jackson’s “yes they deserve to die and I hope they burn in hell,” and more “you don’t have to go home, but you can’t stay here.”

Except that: My philosophical commitment to capital punishment withers before ever-present societal injustice and the inescapable Truth that every one of us is complicit if the state takes an innocent life. Ergo, I ferociously oppose the death penalty until we as a species are mature enough to handle it. 

But someday, those Five Principles could sustain a system where the death penalty isn’t a recourse at all unless it’s the first recourse. And in that far away future, where an accused (1) acknowledges his guilt of (2) a violent crime that’s (3) beyond any doubt by virtue of irrefutably corroborative evidence and (4) for which there’s no reasonable justification, I’ll support the (5) expedient option that delivers both justice and the mercy of instantaneous escape from a world inconsistent with his nature. 

For a capital punishment that spares the wrongfully accused while delivering the quick and painless passing of the rightfully accused, let’s turn for inspiration to that other lady of justice — the Queen of Hearts — as she triumphantly bellows “off with his” etc. etc. and all that.

Does that answer your question? 
****

Captain Jesse Sommer is a lifelong resident of Albany County, currently deployed to Afghanistan with the U.S. Army’s 7th Special Forces Group (Airborne).  He welcomes your thoughts at .