Reason, Passion, Capital Punishment

In his most recent Huffington Post piece, my friend Lou Klarevas makes an argument for changing the standard by which juries in America will decide whether defendants in capital cases should be sentenced to death. His argument is that, in order to avoid sentencing so many innocent people to death, the new standard should be “beyond a lingering doubt” rather than the old “beyond a reasonable doubt.” Making this change will allow us “to continue punishing the truly guilty while better protecting the truly innocent.”

Leaving aside the question of whether, from a legal standpoint, this is a workable solution (there’s plenty of unreasonable doubt in the world), the trouble with this line of thinking, to my mind, is that it proceeds from the assumption that there are some people who deserve to die and some others who have the ability to determine who is so deserving. Klarevas rightly notes that, “In theory, the right to life is the strongest right any American possesses.” But I’d go one big step further and say that it’s the strongest right any human being possesses, as the right to life isn’t simply an American right: it’s a human right. In turning to the Universal Declaration of Human Rights, it’s clear that the right to life accrues to us by virtue of our humanity alone. I needn’t do anything in order to be worthy of these rights and, conversely, I would argue that there isn’t anything I can do that would allow someone to strip me of my rights. It’s certainly true that some rights come into tension with other rights; I wouldn’t want to argue, for example, that society can’t imprison criminals because they have an inalienable right to liberty. But the right to life, I think, is different; it’s the one from which all the others proceed and, if it can be taken away by a government, all of the other rights are meaningless.

At bottom, I suppose all of this represents a philosophical disagreement I have with the idea that, when we hear about or see footage of heinous crimes, “The consequence is a lust for punishing those responsible…with the ultimate sanction: death.” Or perhaps I should put this point differently: we might indeed feel that some criminals deserve to die. We wouldn’t be very empathetic human beings if we didn’t feel terribly about lost lives and angry at the criminals who took loved ones from their families. But our criminal justice system doesn’t ask juries how they feel; it purports to ask them to rationally and dispassionately arrive at the just outcome. And yet the successful litigation of capital cases revolves around enflaming the passions of jurors; without doing so prosecutors might never get a conviction, as it’s quite difficult — when push comes to shove — to get people to condemn another human being to death. Perhaps the real change we need, and the final nail in the coffin of capital punishment, would be to demand that Americans remove our lustful feelings of vengeance from the criminal justice system and focus on arriving, rationally, at justice for victims, for offenders, and for society as a whole.