---------------------------------------------------------- Death Penalty: Why Killing the Killer is Wrong Fleshing Out the Rule of Minimum Proportionate Force ---------------------------------------------------------- by Margo Schulter ---------------------------------------------------------- In a recent article, "Killing the Death Penalty" (April 11, 2012), Elliott Watkins nicely presents one of the central issues relating to the rhetoric and substance of the death penalty debate, challenging those of us who are morally opposed to delve more deeply into one of our favorite arguments going back at least to Cesare Beccaria in 1764. First, here's a link to the complete article. I'm especially indebted to Watkins because his admirably concise and forceful statement provides me an opportunity to consider more carefully an abolitionist slogan maybe not quite so self-evident as it sounds, especially to those who happen to be on the other side of this debate! A familiar version of the abolitionist slogan, which I very much like, is: "Why do we kill people who kill people to show that killing people is wrong?" As Watkins paraphrases this: "Killing is wrong! It doesn't make sense to punish killing by killing! You're sending the wrong lesson to people! If killing is wrong, then it's WRONG, even if `we' do it!" Having presented our abolitionist argument, he then succinctly asks if our reasoning may not prove too much: Let's say I take a human being, and I force them to live in a room. I offer them little to no freedom, treat them relatively harshly, apprehend them physically (or worse) if they try to escape me, feed them with lousy food of an inferior quality, and force them to wear an ugly uniform. Would you say that I am treating them immorally? OF COURSE! Watkins then pointedly observes, with some rhetorical and typographical flourishes cleverly underscoring the punchline, that anyone treating another human being in this manner deserves to be tried, convicted, and, yes, imprisoned under more or less similar conditions! In short, if we legally imprison people for the crime of false imprisonment, or for that matter punish thieves by fines or orders for fourfold restitution (an illegal taking punished by a legal one), why not likewise "kill people who kill people"? Thus Watkins challenges abolitionists to explain in some coherent way why turnabout is sometimes, but not always, fair play. Before offering an answer to this challenge, I'd like to note a bit of history. ------------------------------ 1. The Beccaria-Mill exchange ------------------------------ As a veteran abolitionist, I have well and often learned the lesson that few arguments on the death penalty are totally new. In his landmark book _On Crimes and Punishments_ (1764), the Italian philosopher and reformer Cesare Beccaria sets forth the argument we are exploring in a form quite close to the current "Why do we kill people who kill people...?" The punishment of death is pernicious to society, from the example of barbarity it affords.... Is it not absurd, that the laws, which detest and punish homicide, should, in order to prevent murder, commit premeditated homicide themselves? Please let me make it very clear that, in my view, Beccaria is absolutely right: a legal execution is a brutalizing thing, a cruel and unusual punishment not only for the offender, but for those who must carry out the killing. No one can testify to this more eloquently than our public servants with first-hand experience at this lethal duty. Generations of prison wardens such as Lewis Lawes, Clinton Duffy, Don Cabana, and more recently Jeanne Woodford and Allen Ault, have borne witness to this in their pleas for abolition. And let us not forget correctional officers such as Fred Allen in Texas, whose scores of executions in which he served as a member of what is called the "tie-down team" eventually inflicted more post-traumatic stress than he could bear. However, for we who are abolitionists and wish not only to feel but to _understand_ the force of Beccaria's classic argument, John Stuart Mill's famous riposte of 1868, delivered in a speech he gave as a Member of Parliament, demands our attention. Much has been made of the sanctity of human life, and the absurdity of supposing that we can teach respect for human life by ourselves destroying it.... Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life. Mill, a fearless progressive who championed personal liberty and women's rights, spoke at a critical hour in the history of the English criminal law. In 1868, Parliament weighed a momentous question: should it bring decades of slowly advancing penal reform to a climax by abolishing the death penalty? Or should it instead strike a compromise by retaining capital punishment for murder, but moving the execution out of the public square with its curious and often unruly madding crowds, and into a more private setting decently concealed behind prison walls? While it may be hard to assess exactly how much weight Mill's speech exerted in this great contest, we can say that he was an influential as well as highly controversial figure, and that private executions rather than outright abolition won the day. Only in 1965 did the United Kingdom abolish the death penalty for murder (actually enacting a moratorium that became final in 1969), with abolition for a few remaining "extraordinary" crimes such as treason and certain military offenses achieved by 1998. Having surveyed the Beccaria-Mill exchange as the historical backdrop for this ongoing dialogue, let us focus on the issue at hand more closely. ------------------------------------------------------- 2. The Crux of the Matter: When is turnabout fair play? ------------------------------------------------------- Mill ably states his objection to Beccaria: if we are to prohibit the legal deprivation of life (execution), why not also the legal deprivation of liberty (imprisonment) or of property (fines)? Watkins and others have amplified this point by positing, in each case, a likeness or apparent symmetry between crime and punishment. If it is right to fine a thief or imprison a kidnapper or other perpetrator of false imprisonment, why not, with due process of law, execute a murderer? The point here, which I will borrow from Watkins and somewhat modify (see Section 4 below), is that often we "punish people" in ways that would be morally objectionable, or indeed criminal, "if one private citizen did it to another." Thus he concludes, along with many other death penalty retentionists, that killing the killer is not only permissible, but quite in line with the general logic of criminal justice: An eye for an eye, whether you like it or not, is the basis for our criminal justice system -- or, if you prefer a softer maxim, "Let the punishment fit the crime." While the concept of "fitting the punishment to the crime" leads into all kinds of complications, let's recognize that for abolitionists as well as retentionists, turnabout sometimes seems not only fair play, but ideal "poetic justice." For example, requiring a thief to make fourfold restitution to the victim along with a proper apology, as well as pay a fine to society as also the victim of the crime, is precisely what some of us favoring restorative justice might propose as a sentence. Similarly, imprisoning a kidnapper feels like poetic justice. Some of us might wish to stipulate that the kidnapper should be imprisoned under humane conditions encouraging rehabilitation: three square and reasonably tasty meals a day (say the same food that the staff eats), and a uniform as aesthetically pleasant as possible while serving its main purpose of making it possible quickly to tell prisoners from guards or visitors, etc. Even with these amenities, and yet others such as Internet access (within the limits of safety and security), the kidnapper is suffering a deprivation of liberty as an apt punishment for having deprived someone else of liberty. And so, Mill and Watkins ask, why not "kill the killer"? To challenge this attractive and I would say seductive reasoning from "eye for an eye" symmetry, abolitionists will raise a few striking counterexamples. We do not rape rapists, torture torturers, maim those who perpetrate mayhem, or more generally inflict great bodily injury on those found guilty of aggravated assault. Rather we "make the punishment fit the crime" by imposing terms of imprisonment more or less proportionate to the harm done and the moral culpability of the offender. Here I should emphasize that abolitionists offer these examples with the expectation that most death penalty proponents will agree with us in rejecting such "eye for an eye" corporal punishments, just as retentionists rightly expect that most abolitionists will agree to fine a thief or imprison a kidnapper. Therefore it seems that most people on various sides of this debate can agree that sometimes turnabout is fair play, and sometimes it clearly isn't. How does the death penalty -- legally killing the killer -- fit into this picture? ----------------------------------------------- 3. The Principle of Minimum Proportionate Force ----------------------------------------------- An abolitionist such as myself would propose both a narrow rule and a broader principle to sort out these examples, and put the death penalty in what we see its proper place as a cruel, unwise, and unconstitutional punishment. The narrower rule is that although punishment of any kind must be an unpleasant or at least arduous ordeal, it is wrong to punish by using violence on a subdued prisoner. And let us make no mistake: executing a prisoner, even "daintily" by the skillful administrative or one or more lethal drugs, is an act of lethal violence. Therefore we must not rape rapists, torture torturers, or kill killers. The broader principle is needed to distinguish these morally illicit punishments inflicted upon a subdued prisoner from a basic human right which even those of us who are pacifists recognize: the use of injurious force in self-defense or defense of others, and also in making a lawful arrest or preventing the escape of a prisoner. This principle states that it is permissible to use "minimum proportionate force" in self-defense or defense of others, but not to use injurious force against a subdued offender such as a Death Row prisoner who presents no imminent threat and is already under the restraint of "the long arm of the law" so as to make possible the elimination or minimization of any future threats. Here it may be helpful to clarify some fine points of "minimum proportionate force." The "minimum" part means that we may not use more injurious force than is reasonably necessary to repel the threat or effect an arrest, etc. Thus an officer who knows she can easily and safely wield a handy taser to incapacitate and arrest a felon , but shoots to kill instead, will be guilty of criminal homicide. The "proportionate" part means that the level of injurious defensive force must be reasonably justified by the seriousness of the threat, even if it is the minimum force needed to avoid or repel the threat. A fine example that I recall from Edward Livingston, a great abolitionist and reformer of the earlier 19th century, is that you are not allowed to kill a child even if that is the only way to stop him from stealing some of your fruit. For purposes of this debate, we are concerned not so much with the many ramifications of this broad principle as with the narrow rule going to the issue at hand: we may not apply injurious or violent force, including lethal force, against a subdued prisoner. Invoking this rule leads to the question of why it is the correct rule to apply. The reason already suggested, on which most abolitionists would agree, is that killing or otherwise violently harming a subdued prisoner is cruel and degrading both to the prisoner and to the public servant asked to carry out this kind of "justice." -------------------------------------------------- 4. Private and state punishments: Revising Watkins -------------------------------------------------- We will recall how Watkins correctly asserts that it is highly illegal for a private citizen to confine another citizen against her will in a room under more or less arduous conditions. However, to punish the perpetrator of this outrage against human liberty by likewise confining her for the duration of her legally imposed sentence of imprisonment is routine criminal justice. At the beginning of Section 2, I gave a somewhat modified statement of the moral which Watkins draws from this example: society may often punish people in a way which would be a crime if done by one private citizen to another. His statement is actually rather broader, and may help us delve yet deeper into the "killing the killer" question: The fact is that there is no way to punish people that wouldn't be immoral if one private person did it to another. Here "no way" may be overly categorical. Let us focus on the two most familiar forms of criminal punishment, and the ones cited by Mill: fines and imprisonment. To take two down-to-home examples: suppose a parent confines a child to his room as a "time-out" for misbehavior, or "grounds" a teenager for like cause by detaining her at home when she is not attending or travelling to or from school. Are not these deprivations of liberty, however mild by comparison to a lengthy stay in even the most enlightened and humane penal institution? Similarly, fines, restitution, and confiscations are common punishments at home, in school, and as imposed by libraries and various kinds of organizations. While a stock exchange might not have the power to imprison anyone, it could very well have the power to impose a fine for trading on inside information, for example -- something that has actually happened. Public and private schools likewise may punish students by various kinds of detention. At one elementary school I attended, the punishment was known as "benching": sitting on a bench, often as part of a group of students undergoing a like sanction, for the appointed length of time. If we expand our view from detention as some sort as punishment to detention in general, the scope of licit private or nongovernmental action increases. For example, merchants often have a legal privilege to detain suspected shoplifters for a reasonable period for investigative purposes or to facilitate an arrest by the police. From these examples, we can deduce that justifiable takings of property or deprivations of liberty are fairly routine features of domestic and school life as well as the criminal justice system. Killing as punishment, in contrast, simply is not. Beccaria's profound truth, intellectual and emotional, is that normal humans in most circumstances have a natural or at least quasi-natural inhibition against killing another human, as opposed to fining, restraining, or detaining another human. Even when a killing takes place in legitimate self-defense or the defense of another -- or the collective defense of war -- the police officer, soldier, or private citizen who took a life can suffer devastating psychological ramifications including Post-Traumatic Stress Syndrome (PTSD). By comparison, a police officer who confiscates dangerous contraband from a suspect, or deftly and humanely applies handcuffs and brings a perpetrator to book for a serious felony subject to a term of imprisonment, is very unlikely to feel any comparable trauma, and more likely to feel quiet professional satisfaction for a job well done. If killing another human being in a split-second life-or-death decision impelled by extreme necessity is typically a highly traumatic experience, what of killing a subdued Death Row prisoner in a carefully choreographed ritual? As put by Allen Ault, a former director of the Georgia Department of Corrections who supervised and participated in executions: I mean, it's scripted and rehearsed. It's about as premeditated as any killing you can do. As Ault and others have also suggested, a willingness or even eagerness to kill a subdued or otherwise defenseless victim -- in the name of the law or otherwise -- is characteristic of "psychopathic type people." Normal people under most circumstances, even if supporters of capital punishment in the abstract, have inhibitions which would be painful and psychologically damaging to overcome. Witnesses to executions, likewise, may suffer levels of psychological trauma comparable to that of witnesses to mass shooting incidents. Visiting a humane and well-run prison, while it may not be an especially uplifting experience and should rightly be a sobering one -- deprivation of liberty is a serious punishment -- does not have this devastating impact. In short, Beccaria rather than Mill is right because the innate or quasi-innate human inhibition against killing another human, and especially a defenseless human, is something the law should cherish and teach by example, even in the punishment of those who themselves transgressed this sovereign imperative of humanity. This paramount Beccarian constraint is, in many ways, the exception to the rule that the morality and legality of acts is highly contextual: we are permitted to match theft with fines and restitution orders; and kidnapping with arrest and imprisonment; but not private murder with punitive homicide, or capital punishment. This does not mean that the murderer shall go unpunished -- far from it. Rather, like the perpetrators of other violent crimes such as aggravated assault, mayhem, and sexual assault, he or she shall suffer imprisonment under humane but arduous conditions, the very fact of imprisonment being arduous in itself. And we "fit the punishment to the crime" by making the punishment for murder, especially in its higher degrees or more aggravated forms, awesome: life imprisonment, in some cases without possibility of parole. Such a punishment expresses our denunciation of the crime while recognizing the humanity of the offender as well as the victim and ourselves, by refusing to violate the inner sanctum of our own being and engage in what Ault well calls a "scripted and rehearsed killing." Beyond honoring murder victims and their families by not staging a ritual of legal death which tends to serve as a divisive and unholy distraction from the tragedy of the crime itself, we can and should honor victims also by providing family members with services that promote healing, and requiring murderers to engage in some worthy labor and make restitution into a victims' services fund. Rather than perversely bestowing a kind of Death Row celebrity or at least "anti-hero" status on those who commit the most heinous murders -- and any murder is heinous! -- we should redirect our attention to the public commemoration and sharing of the precious and unique life stories of murder victims, and to giving surviving family members the time, space, assistance, and dignity they need to promote the healing process. ------------------------------------------ 5. Another clue: "execution-style murder" ------------------------------------------ While the quirks and idioms of language are often an uncertain moral compass, one common phrase in English may offer another clue to why Beccaria is right: "execution-style murder." Let us consider, for a moment, what a "police-style kidnapping" might mean -- or, perhaps, an "arrest-style kidnapping." Different readers may well have different responses, but my own is to picture a rather genteel and mitigated kind of crime, the kind of kidnapping I would like to suffer if I had to be kidnapped at all. Part of this response is based on my generally positive experiences with police officers; factors such as race or social status, coupled with prevailing attitudes among the police in a given community, may cause other readers to have radically different experiences and expectations. But it may be instructive to share my own concept. What I picture is a group of people acting like the police at their best: approaching me, explaining that I am "under arrest," and assuring me that if I cooperate I will not be harmed, and will receive humane treatment with my constitutional rights respected. I am then transported to some place of detention, Mirandized, and allowed to make a couple of phone calls (likely with some precautions lest I engage in communications which might lead to the summoning of the actual police). Since my purpose is to share a first impression rather than write a novel, I will leave things there. That impression is that for kidnappers to emulate good police practices in arresting and detaining suspects would make the crime less blameworthy, although never justified -- since deprivation of liberty is inherently arduous and unpleasant, even if I have absolute confidence that my jailers will protect my safety and ensure my basic well-being throughout the process from "arrest" to release. Imposing this deprivation without legitimate authority remains a crime, however mitigated. Now let us consider, in contrast, "execution-style murder." This is a term of unequivocal condemnation, typically applied to a killer who cold-bloodedly kills a victim, often in a carefully planned manner. Murder for hire, and the murder of defenseless crime victims in order to prevent them from making an identification or giving testimony, are typical examples. What the term "execution-style murder" emphatically does not express, as far as I know, is admiration for the killer's decency and skill in emulating the ethics of an official execution team, seeking to carry out the homicide with a minimum of avoidable pain or indignity to the victim. Curiously, at least in my experience, the term "execution-style murder" is not usually applied to what many of us, abolitionists or retentionists, might consider among the most heinous murders of all: murder in the course of sexual assault, mutilation, or other torture where the victim's pain and suffering is the main point. Rather I think of the professional assassin, or of a felon determined to kill any witnesses. The cruelty of an execution-style killing lies precisely in the cold determination to kill a subdued or otherwise defenseless victim, and often also in the unresisting victim's subjection to the psychological torture of anticipating a violent and unnatural death. And that is also precisely the uncommon cruelty of a state-sponsored execution, far above and beyond the necessarily arduous and unpleasant nature of any legal punishment such as a fine, imprisonment, community service, or even a "truth and reconciliation" session with its inevitable element of shame and humiliation, however compassionately handled. The theme of an execution-style murder reveals another reality: we are quite ready to give this term its full condemnatory force even if the act causing death is itself, as far as we can determine, painless, and more particularly so if the victim has suffered prolonged anticipation of death. This moral judgment fits studies of the psychological trauma of torture. The form of torture known as a "mock execution," where a victim's captors realistically and convincingly simulate events leading up to an execution, but do not actually apply any injurious physical force at all, can inflict as much psychological pain and suffering as physical abuse. For many of us abolitionists, our stance flows from a reasoned but also intuitive and passionate conviction that we should leave such calculated acts of scripted homicide, real or simulated, to psychopathic criminals and torturers, not to representatives of our society and legal system.. ------------- 6. Conclusion ------------- Elliott Watkins has ably and succinctly challenged Beccaria's classic insight that "killing the killer" is a brutalizing form of "justice" that devalues human life. Like John Stuart Mill in 1868, he argues that punishing criminals by depriving them of property (fines) or liberty (imprisonment) is not seen to devalue these rights -- so why should depriving them of life (capital punishment) be any different? More specifically, Watkins offers the example of legally imprisoning a kidnapper or other perpetrator of false imprisonment to underscore two points, which the standard example of fining a thief may also illustrate: (1) The morality and legality of an act, such as detaining and imprisoning a citizen, is often highly contextual, depending on who is doing the imprisoning and why; (2) Punishing a crime by a similar or symmetric deprivation, as with a fine for theft or imprisonment for kidnapping, can be an especially attractive form of poetic justice. Sometimes turnabout is fair play. The abolitionist reply I have presented is that the problem with the death penalty for murder is not that the punishment must never resemble the crime or deprive the offender of cherished rights, but that the _killing_ of a subdued prisoner is wrong, as would be also various forms of nonlethal violence. This rule of morality that we must not use injurious force against a defenseless prisoner is one aspect of a larger principle: minimum proportionate force. We may use only the amount of injurious physical force necessary to repel a threat (self-defense or defense of others), and, as a further constraint, only a level of force proportionate to the threatened harm. This principle, of course, has many applications outside the scope of the death penalty debate proper. For example, a police officer knowing that a taser or beanbag round will safely incapacitate a suspect and facilitate an arrest has no right to shoot and kill the suspect in order to deter other felons in the future. Returning to our main point, however, the rule reflects an emotional as well as intellectual wisdom telling us that it is a terrible thing for one human being deliberately to kill another defenseless human being -- a brutalizing act going far beyond the inevitably arduous and unpleasant nature of usual punishments such as fines and imprisonment. Deprivations of property and liberty are a routine part of our home, school, and community life; and serving as a jail or prison officer or administrator, at least in a decent and well-run institution, simply does not have the traumatic effect of serving or presiding at an execution. "Why do we kill people who kill people to show that killing people is wrong" doubtless implies all of these things to many abolitionists: it is a kind of convenient shorthand. My purpose has been, possibly at more length than necessary, to draw out these implications and make them explicit. For many abolitionists, there is a more general conviction that a key purpose of the law is to minimize violence, not only by exerting its force to restrain private and criminal violence, but by exerting an internal force of self-constraint so as to minimize its own violence. This self-constraint has the possibly paradoxical result that we are permitted to fine thieves and imprison kidnappers; but not to rape rapists, torture torturers, mutilate those who have mutilated others, or kill killers. For abolitionists, however, this very asymmetry is a humanizing and indeed elevating one: we refuse to meet "the worst of the worst" offenders on their own home ground, but rather honor our common humanity and that of their victims by punishing these offenders on our terms, not theirs. That is the worthy wisdom of Beccaria. Margo Schulter mschulter@calweb.com April 13, 2012