Wednesday, May 20, 2015
On Capital Punishment
It is probably attributable to mere cultural habit that despite the many conveniences of on-line reading I still prefer to read from an actual printed object held in my hands. But I generally begin my day rather early, quite a while before the arrival of the printed copy of the New York Times, so that I often have a first shot at it sitting in the dark before a flickering screen.
One unique advantage of on-line journalism, from the reader’s point of view, is that one often has access to some sense of the popular reaction to events in the news through the feature of published readers’ comments. Certain stories very quickly attract a large number of them. It was still long before the crack of dawn when I read the Times’s coverage of the outcome of the penalty deliberations of the jury hearing the arguments concerning the convicted Boston Bomber, Dzhokhar Tsarnaev, but even then there were already more than a thousand of them. After reading a certain number, I had the depressing realization that I would feel compelled to add to their number, as I am now doing. My next post cannot fail to be more cheerful and uplifting.
As everyone knows, the jury recommended a capital sentence for this young man who, in concert with his brother, randomly murdered some people and maimed many more in a terrorist bombing. The unpleasant outcome seemed to me quite probable, indeed nearly inevitable, given our legal codes, the unmitigated iniquity of the crime, and the particular instructions given to the jury. My view of the matter, however, was far from being shared by many of my fellow readers who had chosen to leave comments.
Without wanting to suggest that such comments could be easily grouped into categories of opinion, I was nonetheless struck by the large number that seemed to equate judicial execution with murder pure and simple. One of the first I read was “Now we are as bad as they are.” Another sizable group complained that the jury’s opinion violated some specially indulgent and enlightened ambiance peculiar to the city of Boston. Several commentators suggested that determinative weight should have been given to the opinion of the parents of one of the murder victims, a young girl. They had expressed their preference that Tsarnaev be given a sentence of lifetime imprisonment that would preclude the highly likely prospect of many years of irresolution and repeatedly rekindled anguish as the process of legal appeal slowly grinds on. One group of comments seemed to me particularly obtuse concerning legal realities. They complained that the deck has been stacked against Tsarnaev because all those who expressed a categorical opposition to capital punishment had been excluded from the jury pool.
Many comments abused the jurors, attributing to them a want of courage or of intelligence. This I found rather shocking. Serving on a “high profile” jury must surely be among the most grueling and thankless tasks that can fall upon a citizen. I certainly would hope to be spared any such duty, and the apparent ease with which opponents of the death penalty attributed incompetence or base motives to the jurors alarmed me. Especially disturbing were remarks that implied that justice is primarily a matter of private family revenge or compensation—as though we were still operating under the early Germanic system of wergild. The relatives of murder victims must necessarily have a claim on our empathy; but they cannot claim a special status in law.
An important part of the social contract, as I understand it, is that living in community means living according to the laws we have, whether we like them or not. Justice is communal and social, not private and individual. We do not seek justice "for Michael" or "for Lisa" or for any particular private person. We seek justice, period. Actually, even though I am not a Bostonian I am opposed on principle to capital punishment. Like many of my other political and social opinions, this one was highly influenced by “literary” experience, and in particular by reading a nearly forgotten work of Victor Hugo: The Last Days of a Condemned Man. Hugo, a great man condemned to the disappointment of all genuine idealists, could not believe that the guillotine, which had become so prominent in the Revolution of 1789, had survived the corrective Revolution of 1830. It often takes a while for enlightened individual opinion to gain a large social consensus. Hugo died in 1885. Capital punishment was abolished in France only in 1981. Hugo could lament the French law of his time, but he could not simply ignore it.
Though American public opinion concerning capital punishment has not yet arrived at a universal reforming consensus and may still not do so for some years to come, the likely drift of things is clear enough. In many arenas of progressive American thought “diversity” has become a nearly terminal good—except, that is, for the many manifestations of actual cultural diversity that one may find strange, embarrassing, or even threatening from one’s own local perspective. Ours is a vast country, and despite many powerful institutions working toward a cultural homogeneity it is a country of marked regional differences. The number of places in which there is a firm consensus in favor of the death penalty in diminishing, partly on practical grounds. When each capital judgment becomes a marathon of legal appeals, and when the effectiveness of high-tech “humane” ways of killing people has fallen under just suspicion, what might be doctrinally sound is pragmatically dubious. Just at the moment a number of conservative legislators in Nebraska are trying, with good chances of success, to arrange a vote for abolition in that state. In the meantime I greatly admire the Boston jurors and will not second-guess them.