Do the demands of retribution give us a license to kill?

Content warning: Graphic physical & sexual violence

By the time this column is published, the State of Oklahoma will likely have executed Richard Glossip for the 1977 murder by proxy of Barry Van Treese, his then-employer. This execution, as executions are wont to, has raised considerable acrimony. In the Supreme Court case Glossip v. Gross, Glossip’s attorneys argued unsuccessfully that the administration of the three-drug cocktail that will be used to end his life would be a violation of his Eighth Amendment rights. Since the failure of that constitutional challenge, Glossip has become a minor cause celebre for anti-death penalty activists. One need not look further than one’s Facebook newsfeed to find a legion of articles declaring Glossip an innocent man. The evidence for his guilt, we are told, is flimsy, based on incredible testimony. We face that old, familiar, dire warning: the state is going to murder once again.

I do not intend to make the case here for Glossip’s factual innocence. Frankly, after reviewing material related to the case, I am not convinced of it (though, if I had been a member of the jury, I would not have voted to convict at a reasonable doubt standard). What interests me here is not Glossip’s guilt or innocence, but rather the role that supposed innocence plays in contemporary arguments against the death penalty.

The American justice system is indebted to the English jurist William Blackstone, who bestowed upon us, among other legal bounties, a golden ratio: “It is better that ten guilty persons escape than that one innocent suffer.” We are biased, with good reason, to favor the freedom of the innocent over the punishment of the guilty. The degree to which our legal system puts this principle into actual practice is disturbingly debatable, especially when we look at our nation’s racial history; courts, from 1776 onward, have often convicted people of color, in particular black men, with a weightless ease that belies the heavy nature of a criminal sentence. Our practice aside, I am going to assume, with a perhaps misplaced optimism, that most Americans believe in Blackstone’s principle, at least in theory. This is the same assumption that anti-death penalty activists make every day; it is the basis of their most compelling argument.

The argument goes something like this: the justice system, as a creation of imperfect humans, will never be perfectly accurate; it will always produce a certain number of false positives. These false positives are not mere statistical anomalies. They are real living and breathing human beings who must languish under the weight of unjust punishment. So long as the innocent imprisoned are alive, there is some hope that they will be exonerated and released. But when we execute the innocent, we ensure that our mistake will endure forever. The state will have then perpetrated a crime of which it can never rid itself.

This argument is rather persuasive, but it lacks philosophical depth. Certainly, there are some cases where the facts are so clear-cut that there really can be no reasonable doubt about them. The guilt of people like Gary Gilmour, Jeffrey Dahmer, and, perhaps more outlandishly, Saddam Hussein is about as firmly established as the fact that Neil Armstrong walked on the moon or that William Penn founded Pennsylvania. Perhaps we can accept that there are some capital cases in which guilt is undeniable, while denying that there is any invariant principle that could consistently differentiate these cases from murkier ones. This solution might be enough for a pragmatist, and is probably the most sensible place to end our discussion. But it has never satisfied me. It tells us to oppose the death penalty in general, but not in particular. It does not compel us to oppose the execution of murderers of whose guilt we are certain. We are to spare those people not out of concern for their humanity, but for the humanity of their unlucky, innocent peers. If we are to be a reflective society, we require more than this philosophical half-measure. We need to ask ourselves what it means to condemn the guilty to death.

There are certain crimes that boggle the moral imagination. They can hardly be thought of as having a cause, properly speaking: they are so depraved that we can think of them at first only as a deep evil imposing itself on the world. Justice Scalia, in his concurrence with the majority opinion in Glossip v. Gross, was wise in noting that one of Glossip’s co-petitioners had been convicted of “raping and murdering an 11–month-old baby.” This is the sort of crime for which there can be no real mitigation: no miserable childhood, no troubled adolescence, no shattering trauma can adequately explain why a person would choose to commit such a despicable act. We cannot ignore the sheer monstrosity of certain crimes, nor can we deny our deep intuition that some wrongs can be righted only with the spilling of blood. The thirst for blood in the face of injustice is not universal — there are doubtless those among us with a more enlightened temperament — but it is certainly the norm. A norm we perhaps do not like to acknowledge, but a norm nonetheless. We fight the monstrousness of fact with the monstrousness of our imagination. We contemplate what tortures we could inflict upon torturers, sometimes in what would otherwise be nauseating detail: castrate the rapists, cut off the hands of the murderers, torture the terrorists! After all, they deserve it.

We think that we are justified in all this fantasizing, that the demands of retribution give us a communal license to kill. Perhaps we are; perhaps they do. But this license is not ennobling. It involves us in the same monstrousness that we condemn in the murderer. It does not matter that they deserve it while their victims did not — it makes us more brutish and less thoughtful, more willing to resort to other forms of violence. We know this to some extent, on a societal level if not an individual one. We do not watch the spilling of the blood that we bayed for; our stomachs are too weak for that. Executions are carried out far from the public eye. We, the decent people whom the criminals prey upon, do not have to contemplate the gruesomeness of their deaths. We think ourselves humane for injecting our condemned with Potassium chloride to stop the beating of their hearts: How superior we are to the Saudis, with their gory beheadings. The sort of killing that would be really humane, really painless — shooting the condemned point blank in the head — is not something we are willing to contemplate. We do not want to deal with the mess. We do not anesthetize the condemned for their benefit; we do it to anesthetize ourselves.

By the time you read this, the State of Oklahoma will likely have killed Richard Glossip. I do not know if Richard Glossip deserves death. I do not know if he hired Justin Sneed to bash in Barry Van Treese’s brain with a baseball bat. I suspect that he did, but that is only a suspicion. What I am sure of is that another lifeless body will do nothing to dignify this nation. That body, Richard Glossip’s body, will represent just another chapter in our long, cowardly, brutish history of timid viciousness.

Editor’s note: According to Newsweek, Oklahoma governor Mary Fallin issued a stay of Richard Glossip’s execution on Wednesday afternoon.

 

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