Capital punishment as a systems problem
Aug. 23rd, 2014 09:07 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
lydy(Posted elseweb, but I liked it well enough I'm putting it here, too.)
When I contemplate capital punishment, I find that the implementation details always swamp the more abstract question of whether or not it is moral. If one temporarily assumes that there are situation in which it is moral for “the state” to take the life of one of the citizens, then one is left an indigestible lump of impossible problems. Again, for the sake of argument, let us assume that there is some number greater than zero of actions for which we all agree that capital punishment is appropriate. So, first, we have to determine whether or not such an action has been committed by a particular person.
Now, justice systems are more or less good, depending on time, place, precedent, and skill, but all of them boil down to a human being attempting to make a judgement about the actions and intentions of another human being. Experimentally, we seem to have determined that this process is best done by people not immediately affected by the crime, so we have people who were neither participants nor witnesses attempting to determine both facts and motivations. (Yes, motivations. This is why first degree murder is different than manslaughter. Intent actually matters a whole hell of a lot in law, and it should.) This is a hard problem, and the higher the stakes, the harder the problem becomes. When an actual life is on the line, the entire process gets warped by the weight of the possible decision. And since one of the outcomes has no possibility of a take-back, people on both sides of the issue have a huge stake in owning the “truth”. A prosecutor seeking the death penalty has a huge investment in having the outcome be unquestioned. This leads, inevitably, to a system which tries to defend those decisions, to hide errors, to minimize problems, and often, to cause proponents to double-down on their position. When making a mistake is unthinkable, people don’t stop making mistakes, but they do work very hard to remove institutions that make it possible to discover those mistakes.
In any society where there is inequality, the death penalty will always fall most heavily on the disadvantaged. This is structural to the way jurisprudence and equality play out. Those in power will always be more willing to believe heinous things of people that are not in power than they are to believe it of their ownselves. Access to justice will always be mediated by access to the levers or power: money, influence, connections. And so, it will always be the case that those with less power in a society will be more likely to face stiffer sentences, including death. And this fundamental inequality on the most basic right, the right to live, highlights all the ways in which the justice system is flawed and failing. Fighting to make the system fairer is a good fight, necessary, we must do it. And I’d start with getting rid of the death penalty, because it is so completely permanent. Nobody ever recovers from a case of death. People do manage to build lives after having been wrongly incarcerated for decades. Not the life they would have had, but still, a life.
Implementing the death penalty must always, as well, coarsen and damage the society that implements it. The public spectacle of hangings and the like of a hundred years ago is distasteful. More importantly, it causes the spectators to exercise the opposite of empathy. This is not good for those people, it teaches them ways to divorce themselves from the common weal. It helps people find ways ignore our interconnected lives. The damage it does to the executioner should not be ignored. Our current system of committing these acts in private, with the only onlookers grieving family and revenge-driven survivors, is despicable, hypocritical, and has the smell of pornography. It allows us to have this thing which is unthinkable, which is incredibly disturbing and for many people unwatchable, but hidden politely away so that we don’t have to think about it. I do think that of the two, the latter system of it being so obscene that it cannot be part of common experience, is the preferable. But I hate the idea that my society is condoning an act so obscene it cannot be carried out in the light of day.
Killing people isn’t always wrong. But institutionalizing the killing of people comes with serious social costs which we often pretend don’t exist.
Capital punishment is a systems problem. The system cannot be made to work.
When I contemplate capital punishment, I find that the implementation details always swamp the more abstract question of whether or not it is moral. If one temporarily assumes that there are situation in which it is moral for “the state” to take the life of one of the citizens, then one is left an indigestible lump of impossible problems. Again, for the sake of argument, let us assume that there is some number greater than zero of actions for which we all agree that capital punishment is appropriate. So, first, we have to determine whether or not such an action has been committed by a particular person.
Now, justice systems are more or less good, depending on time, place, precedent, and skill, but all of them boil down to a human being attempting to make a judgement about the actions and intentions of another human being. Experimentally, we seem to have determined that this process is best done by people not immediately affected by the crime, so we have people who were neither participants nor witnesses attempting to determine both facts and motivations. (Yes, motivations. This is why first degree murder is different than manslaughter. Intent actually matters a whole hell of a lot in law, and it should.) This is a hard problem, and the higher the stakes, the harder the problem becomes. When an actual life is on the line, the entire process gets warped by the weight of the possible decision. And since one of the outcomes has no possibility of a take-back, people on both sides of the issue have a huge stake in owning the “truth”. A prosecutor seeking the death penalty has a huge investment in having the outcome be unquestioned. This leads, inevitably, to a system which tries to defend those decisions, to hide errors, to minimize problems, and often, to cause proponents to double-down on their position. When making a mistake is unthinkable, people don’t stop making mistakes, but they do work very hard to remove institutions that make it possible to discover those mistakes.
In any society where there is inequality, the death penalty will always fall most heavily on the disadvantaged. This is structural to the way jurisprudence and equality play out. Those in power will always be more willing to believe heinous things of people that are not in power than they are to believe it of their ownselves. Access to justice will always be mediated by access to the levers or power: money, influence, connections. And so, it will always be the case that those with less power in a society will be more likely to face stiffer sentences, including death. And this fundamental inequality on the most basic right, the right to live, highlights all the ways in which the justice system is flawed and failing. Fighting to make the system fairer is a good fight, necessary, we must do it. And I’d start with getting rid of the death penalty, because it is so completely permanent. Nobody ever recovers from a case of death. People do manage to build lives after having been wrongly incarcerated for decades. Not the life they would have had, but still, a life.
Implementing the death penalty must always, as well, coarsen and damage the society that implements it. The public spectacle of hangings and the like of a hundred years ago is distasteful. More importantly, it causes the spectators to exercise the opposite of empathy. This is not good for those people, it teaches them ways to divorce themselves from the common weal. It helps people find ways ignore our interconnected lives. The damage it does to the executioner should not be ignored. Our current system of committing these acts in private, with the only onlookers grieving family and revenge-driven survivors, is despicable, hypocritical, and has the smell of pornography. It allows us to have this thing which is unthinkable, which is incredibly disturbing and for many people unwatchable, but hidden politely away so that we don’t have to think about it. I do think that of the two, the latter system of it being so obscene that it cannot be part of common experience, is the preferable. But I hate the idea that my society is condoning an act so obscene it cannot be carried out in the light of day.
Killing people isn’t always wrong. But institutionalizing the killing of people comes with serious social costs which we often pretend don’t exist.
Capital punishment is a systems problem. The system cannot be made to work.
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no subject
Date: 2014-08-24 03:51 pm (UTC)One thing that I'm liking about the show is that it's made me feel strongly for a death row inmate who's been a recurring character across two seasons, so that the audience has a chance to get to know him, and the people affected by his death - right up through the event of his execution.
It brings home what you said above, "It [the death penalty] allows us to have this thing which is unthinkable, which is incredibly disturbing and for many people unwatchable, but hidden politely away so that we don’t have to think about it." It's impossible for me to watch this show without deciding that the death penalty is abhorrent.
Of course I've always thought it hypocritical for society to practice what it condemns in individuals. (i.e.: murder).
no subject
Date: 2014-08-24 04:12 pm (UTC)I have several moral reasons to believe that capital punishment is unacceptable. But I keep on getting hung up on the actual implementation details. Even if it were right and just, how would you go about it? How could you possibly do this well? And I see no way.
In the end, I think that people are utterly complicated, and that killing them is an attempt to simplify them. Have you read _The Professor and the Madman_? Wonderful book about the creation of the Oxford English Dictionary. And about how someone who, by many standards, was a complete waste of space was instrumental in constructing one of the great bits of human accomplishment. I think that standing in judgment over people is dangerously fraught, and that when we judge people's pasts, we completely ignore their futures in non-useful ways.
Of the few things that I took from my Christian upbringing are grace and redemption. Sometimes, grace happens. God, or the universe, gives you a completely unearned gift. Transformative grace happens to the most unlikely people, for no discernible reason. It's a real thing, and we neither merit nor understand it. And people change and grow, can become better than they were. I'm not long on repentance. Don't care if you feel bad or not. But boy, do I believe in redemption.
no subject
Date: 2014-08-24 04:45 pm (UTC)Regardless of her cussing, promiscuity and hard drinking, she's a remarkably kind, caring person who does a lot to help people, so personally, I don't see her needing saving at all. I don't think a belief in God is necessary to being a good person or even a godly person. I do like the show because the characters are great and I enjoy Earl, the rather red-neck angel.
I have not read 'The Professor and the Madman' - sounds interesting, though.
The death-row character did a lot to illustrate the value of redemption. There's an issue of fear vs trust there. A lot of people are afraid of someone whose past behavior indicates they're a danger. How much do they have to change, and do to prove they've changed, before people will trust them again?
no subject
Date: 2014-08-24 05:09 pm (UTC)In regards to your last question, I have no answers, though it is a good question. How does one distinguish between redemption and a person playing at change in order to get something that they want. Say, not dying. Pretty powerful motivator, that not dying thing. I'd say just about anything, for that. Parole boards, by the way, are very bad at making these judgments. And, statistically, the best parole bet is the murderer. Least likely to reoffend, not just not commit murder again, but indeed, any serious crime.
no subject
Date: 2014-08-24 07:20 pm (UTC)I talk to God all the time; any responses are non-verbal and probably meaningless to anyone but me.
Re redemption, I don't doubt you're right about parole boards or murderers. I posed the question because it's something I think remains a question for a long time in a lot of situations. Whenever somebody behaves in a way that undermines trust, there's the question of what it takes to regain it, and the answers are going to depend on individual cases.
no subject
Date: 2014-08-26 01:59 am (UTC)Saving Grace is full of well-drawn, complicated characters played by good actors, and I'm always pleased the next time I see any of them. Most recently, the Earl actor was an eccentric and philosophical party host over on Rectify.
As for capital punishment, it's one of those things that is unlikely to succeed in any implementation, as far as I can tell. For that reason alone, we shouldn't have it: inhumane doing away of people who could be innocent? (Interestingly, Moshe agrees with me on this.)