Death Penalty RE-reconsidered

Some time ago my post called “Death Penalty Reconsidered” gathered some interesting comments. The post was about the California Morales case, in which lethal injection was challenged as a means of execution because it was, possibly, "painful." I then ranted on the ironies of that issue, smirking about how executions should be made painful and public, if the idea was to teach a lesson and to provide solace for victims.

That led me to some more ranting about the concept of “closure” as a rationale for capital punishment from my point of view as both a defense lawyer and a person who has not been able to "close" my impulse to live with ghosts in my past, whether dead or alive.

All this stuff apparently struck some nerves out there in the nether-worldwide webbish ether, because I received more comments than from any other post. Here are some of them, almost all from strangers.

"Doc T" said...

"Dear Mr. Borenstein,
"Fantastic post. I would like to answer (my views) on some of the questions you pose on here and debate the Morales issue, if I would be assured of answers. No mud-slinging, no crude and unwanted comments, etc, etc. Just clean and respectful debate. Would you be so kind as to indicate if you are willing? Your other readers can also participate, should they so wish. Other than that, I find your posts hillarious but also very refreshing! Have a super day!"
11:27 PM

"Kelly" said...

"This post is an interesting discussion of an alternative system of implementing the death penalty. It doesn't discuss methods (lethal injection, etc.) but it does discuss why and when it should be used."

12:52 PM

"Jem" said...

"Great job on the piece! "Closure" is a complex concept; it alludes to the practical need families/advocates obviously feel to shepherd their loved one's case through the legal quagmire (and, thus, to eventually be free of that perceived responsibility and burden) as well as to an imagined progess through a grieving process. Of these two meanings (practical and psychological), I am much more skeptical about the latter than the former, and I think your beautiful argument here is perfect (why pretend that we can get pyschological closure just because there is a human agent of our bereavement - how would that compensate for, or help us even come to terms with, our emotional loss?).

"Yet, even the practical side has its contradictions. It seems like our legal system has oscillated between:
(1) a basic disregard for "victims' rights" (or those of their survivors) as essentially irrelevent because we are not so much concerned with the crime itself as with the pathology of the criminal ("broken" people that are inherently dangerous need to be quarantined from society, combined with the notion that the crime was an attack on public order and civilization as well as on a specific individual) and
(2) an "eye for an eye" notion of direct compensation (that an aggrieved family should, in some way, be offered disposal of the life of the criminal to recompense the loss of their own loved one).

The trouble with concept (1) is that peole do, occasionally, change in prison (as we have seen in several recent cases), providing the possibility that they are no longer dangerous to society. Yet the crime was comitted and the reform of the criminal does not remove the harm already inflicted. The trouble with concept (2) is that some families may, as you hint at the end of your piece, decide to forgive rather than exact vengeance, if given the chance. This forgiveness would conflict with the state's desire to quarantine the anti-social criminal and punish the attack on social order, and, since this forgiveness is so arbitrary (depending on the hearts of specific loved ones), could lead to differing punishments for similar crimes (i.e., its best to hurt forgiving types, or at least their loved ones). I suppose this is why, despite all the rhetoric about victims' rights, we don't see much actual attention paid to their potential implications.

Perhaps it would be better, all in all, if we separate these very different, but often conflated, concepts and make their relative merits a subject of public discourse.
7:13 PM

"Doc T" replied...

"I can agree that "closure" is a complex process. It differs from person to person and the methodology to achieve this is different in every person. There is no "quick fix" formula or solution.

In my view, the "closure" reason used by many to justify the death penalty, is a picture they paint for themselves, in the hope that they will "feel better". It is my view that the undelying reason, behind the facade of "closure" is pure revenge.

It is my view that victim support services should be predominant during such times, instead of being used as an agent to fuel the revenge issue, which I have seen happen.

Yes, "broken" people should be quarantined for the good of all. Even should they "change" during incarceration and conform to societal norms once again, it should not give them carte blanche to be released into society again. They can continue serving society from where they are.
4:13 AM

"john" said...

"Hello Doct and everyone. I think that revenge is a motivation for pro execution people, but also a sense of duty to a loved one lost is seen. Otherwise I just cannot see any argument for more brutality. I lost my brother to murder, but what "closure" would happen from yet another killing? What, revenge? A sense of duty? Won't bring my brother back. (Group psychotherapy was what gave me "closure"). How can "closure" happen with execution?? And with DNA seeing 122 innocent people taken off death row recently, what if the guy in front of me, being fried with 2,000 volts banged through them, is actually innocent, and the real killer out in the streets because the legal case was closed with execution?? The loss is still there. Deterrent? In Europe, where there is no death penalty, the murder rate is lower than the U.S. (and gun access is restricted too) Where is the definitive argument for more killing? In most cases anyway, the killers are mentally disturbed. They are damaged people themselves with childhood abuse histories. So when does the chain of violence stop? By the state continuing the violence machine?"
5:36 AM

"john" later added ...

"A therapy process should not direct a person to go in any direction. It is an exploration of, and testing out of feelings in a group feedback environment. So any "therapy" that incites people or directs them to want revenge is not doing its job. Closure is an internal process, not external. Execution is external. I don't see how it resolves the grieving process. In fact, in one sense, execution is counter-productive from a closure sense. "Right, you can stop suffering now, because we have just killed the killer !!" Being "allowed" to grieve for as long as it needs is vital. For me, the justice process alone was sufficient in that the killer had to face it. But my grieving was internal."
5:52 AM

"UnderCoverAnna" said...

"Mr. Borenstein,
thank you so much for your thoughtful essay on the death penalty. I was so glad that you dared mention disease as a killer, too. During discussions on another forum, I was afraid to mention that fact. My mother died of Alzheimer's disease: humiliated and tormented, completely stripped of her dignity. While we were watching that cruel punishment, we also had to put up with a host of brainless Alzheimer's jokes (of which you all may have heard a few, too.) More than two years after her death, I still feel tempted to slap people who poke fun of Alzheimer's victims.

Whenever I see an elderly white-haired lady in a wheel-chair, I travel right down memory lane. I know there will never, ever be closure for me.

No matter what, the loss is permanent. So, I would like to tell the family members of muder victims not to expect closure at all -- not from the verdict, not from the execution of the murderer, not from justice having been served. There is no such thing as closure because feelings and emotions cannot be closed like a folder that contains the files of your and your loved one's sufferings.

We can only heal to a point where the pain becomes bearable, where a cruel Alzheimer's joke can't hurt us no longer, and where the images of the agony our loved ones may have suffered have just faded enough to somehow accommodate them in our daily lives.

Thanks again for your article."
9:50 AM

My addendum:

Thank you all for these comments and please keep them coming. It is a miracle that this venue is so full of thoughtful people.

Notes in a bottle dropped into the sea are a form of therapy, aren't they? Evidence that intelligent life does exist in scattered parts of this planet is shocking ...

In my blog, I posted stories about the lives of some of my ghosts, reflecting that maybe the saddest fact of death is that most of us are forgotten when the people who loved us are gone.

Maybe this vehicle --- these blogs that are written by unfamous people about unfamous people --- will prove to be more important than all the blogs written about celebrity gossip or politics or conspiracies ...

Maybe just the idea that a human being's "history" can be sent out into the void, read by strangers, and thereby recalled and treasured, thus providing a kind of immortality, is the best form of "closure" possible.

The Judas Defense

People accuse defense lawyers like me of being able to make an argument for The Devil. Well, I never was retained by Her, but the idea that anyone is entitled to a defense got a boost by the release of The Gospel According To Judas by the National Geographic.

Judas Iscariot, you might recall, was the disciple whose very name became synonymous with Traitor and Informant, accused by the Gospels of Mark, John, Luke, and Matthew of selling out Jesus to the Romans for money.

Now, more than two thousand years after the “crime,” it seems like Judas has come up with a defense after all. And as a criminal defense lawyer, I must say that it is a pretty good one at that.

According to the translation of the Judas Gospel, Jesus told Judas in private conversation to do what Judas in fact did do, turn him in. Thus, the defense is that Judas was not a conspirator in the legalized murder of Jesus, but was instead following the Savior’s orders, in effect carrying out God’s plan to sacrifice His Son for the sins of humanity. So, from a strictly legal viewpoint, Judas was guilty of nothing more than assisting in a suicide, which is apparently lawful in some jurisdictions.

What next? Can I expect a call from Cain, wanting to file a writ of Habeas Corpus to raise the defense of ignorance: since no murders had ever been committed before, Cain didn’t know that his act would result in death, or that it was unlawful to end someone’s life. After all, this preceded The Ten Commandments by... well, many pages.

Bush's faith in Democracy: What's so wrong with that?

The core of the problem with America’s Iraq policy is that George Bush and those around him are not lawyers. So they support their arguments with faith based notions.

George Bush is a self-defined Fundamentalist Christian whose rigid religious faith informs his world view. He wants to spread democracy throughout the world in the belief that world peace will result.

This is certainly a noble goal, so what is wrong with it? Why isn’t this the same as Lincoln’s stubborn crusade to preserve the Union during our Civil War, which resulted in 600,000+ American deaths?

Lincoln too was a man of deep religious faith, was uncompromising in his adherence to his principles, despite widespread dissension and protest. He pursued a war of conquest over a self declared “nation” that wanted “self-determination” based on its own values and perceptions that their liberty was being trampled by a majority.

Let’s define our terms and see if we can See The Light.

Faith:

“1. Confident belief in the truth, value, or trustworthiness of a person, idea, or thing. 2. Belief that does not rest on logical proof or material evidence. See synonyms at belief.,trust. 3. Loyalty to a person or thing; allegiance: keeping faith with one's supporters. 4.In Christianity, the theological virtue defined as secure belief in God and a trusting acceptance of God's will. 5. The body of dogma of a religion: the Muslim faith. 6. A set of principles or beliefs.”

Fundamentalism:

“1. A usually religious movement or point of view characterized by a return to fundamental principles, by rigid adherence to those principles, and often by intolerance of other views and opposition to secularism...”

Democracy:

“1. Government by the people, exercised either directly or through elected representatives. 2. A political or social unit that has such a government. 3. The common people, considered as the primary source of political power. 4. Majority rule. 5. The principles of social equality and respect for the individual within a community.”

[The American Heritage® Dictionary of the English Language: Fourth Edition. 2000.]

The Bush administration clings to its faith that it can establish “democracy” in the Islamic middle east. It defines “democracy” in the American holistic sense, [definition 5, supra], implying tolerance in a pluralistic society.

The leaders in that part of the world, also calling themselves men of fundamentalist faith, resist these efforts. Majority rule involves adherence to fundamentalist Islam, which, by definition violates American understanding of “democracy.” The difference is that they believe definition 5 violates the demands of their fundamental faith.

[Parenthetically, moderate interpreters of the Qu’uran differ; they point out that under the Caliphate, when Islam controlled a vast realm, “infidels” were tolerated, even encouraged to participate in the society.]

So the difference between Lincoln and Bush?

The South claimed also to be men of strong faith. They found support for their policies in the same Bible that their enemies cited. They also defined “democracy” in a narrower sense, denying the need for pluralism.

Lincoln argued that disunion and slavery were wrong, not merely because his Faith told him so; he had brilliantly expressed logical reasons for his conclusion and his stubborn adherence to his policy. His rhetoric was often couched in the language of faith, but he never lost sight of the reasoning behind his quest.