“Thousands of hours in prisons and over 25 years interviewing more than 100 convicted killers (along with dozens of correctional officers) has taught me: Life without parole can't substitute for the death penalty.” - Professor Robert Blecker
On this date, September 12, 2007, Daryl Keith Holton was executed by the
electric chair in the Tennessee. He was convicted of murdering four children (3
of them were his sons) on November 30, 1997. We will post an article from Robert
Blecker on the death penalty.
Life Without Parole Is
No Substitute for Capital Punishment | Opinion
, Professor of law, emeritus, New York
Law School
On 7/24/20 at 7:30 AM EDT
On 7/24/20 at 7:30 AM EDT
After
three executions last week, the federal death penalty has provoked an avalanche
of criticism. Opponents attack it as arbitrary—we can neither define nor
determine who make up the worst of the worst. Besides, death penalty critics
claim, life without parole (LWOP) offers a much better, morally satisfying
alternative—punishment as bad, or even worse, than death itself.
Yesterday's
opinion piece rebutted the first attack. Now for the second.
Let the
punishment fit the crime. People have mouthed this for millennia, and seemingly
still embrace it. Can the punishment of death be the only morally
adequate response?
In
reality, a prisoner's actual experience inside prison—those countless more or
less pleasant or painful moments, day to day—constitutes his punishment.
Justice requires that those who commit the worst crimes experience the most
unpleasant punishment; also, that those who commit the least serious crimes
experience the mildest punishment. Distinct from revenger, retribution also
acts as a limit on punishment—no less nor more than deserved. Let the
punishment fit the crime. Keep punishment proportional to the gravity of the
offense, or the moral depravity of the offender.
Life
inside Lorton Central, and every prison I have visited since, mocks that goal.
Unaware
of lifers' actual experience, an instinctively retributive but uninformed
public often opposes the death penalty as "too good" for the worst of
the worst, imagining life in prison as a living hell.
But day
to day, hour to hour, moment to moment, inside prison a lifer's life in no way
reflects the greater seriousness of his crime. In Lorton and most prisons
across the United States, those who most deserve it suffer least. The toughest
criminals who committed the worst crimes often have it best: Lifers move up to
the favored supervisory positions in industry—earning the most money for the
least work. They have the best hustles—the best-established contacts for drugs,
weapons, etc. By contrast, the timid, short-term first offender, who deserves
it least, often suffers the most.
Officers
intentionally ignore the prisoners' crimes. "What a man is in here for is
not our concern," explained Captain Frank Townshend, a well-respected,
tough-but-fair Lorton officer. Inside the joint, prisoners further help cut
that connection between the crime and punishment. With the exception of rape,
which they scorn, and child molestation or crimes against the elderly, whatever
a person did on the outside is his own business.
"My
day?" explained David Keen, who raped little Ashley Reed, then strangled
the eight-year-old child with a shoelace, dumping her, still living, into the
Wolf River. "Do my arts and crafts, or go to the yard, play cards—spades
and rummy. If we win, we win. Just going out to have fun," Keen continued.
"Some people play Scrabble, pinochle, monopoly, handball, basketball. Some
lift weights. I do push-ups and sit-ups in my house. We joke around, tease the
officers; the officers tease us. It's pretty laid back, for the most
part."
In the
old days, fellow convicts routinely attacked child molesters like Keen. Today,
afraid of losing their privileges, convicts mostly leave them alone. In the old
days, prison staff too might have given Keen the cold shoulder. No longer.
"When I come to work, every day I 'flip a switch' that says: 'These people
are human beings; it doesn't matter what their crime is," explained Cameron
Harvanik, Oklahoma State Penitentiary's good-natured Deputy Warden.
Lee Mann, a
warden's assistant, summed up best the laid-back lifestyle prison
administration provides those serving LWOP: "We want to make the time as
easy for them as we can because it makes it easy for us if it's easy for
them."
"A
better name for [LWOP] might be, 'death by incarceration,'" abolitionists
have declared, using artful but misleading rhetoric to support the substitution
of life for death. True, almost all aggravated murderers sentenced to LWOP will
die in prison. But almost none will die because of prison. We all
live, condemned to die somewhere. Some of us will die in old age in our sleep,
or watching television, or taking a bath. Should we call these closing scenes
"death by sleep," "death by television,"
"death by bathing?"
The
question of justice—whether LWOP can morally substitute for the death penalty—depends
not on where these vicious killers die, but on how they live before they die.
"Revenge is limitless. Retribution is
limited and proportionate to the crime."
A
retributivist would link the experience inside with the severity of the crime
outside. The quality of the food, the number and nature of visits, access to
popular programs, telephone privileges—every aspect of life inside would, and
should, relate primarily to the criminal's past crime. But by severing the
crime committed outside from the quality of time spent inside, both prisoners
and prison administrators undermine any justice or proportionality attaching to
life without parole.
The past counts. The Earth
does not belong only to the living. Bloodshed cries out to be avenged.
Emotively, and not merely rationally, the blood of the dead victim compels us
to act. Today, too, the victim’s lingering cry moves us retributivist advocates
of the death penalty.
[The Death Penalty Delineated By the Old Testament
by Robert Blecker, USA Today on November 2004]
Life
without parole is worse than death, some abolitionists will insist, hoping to
mollify an angry, if ignorant, public. Really? Why then do so few lifers kill
themselves? Of course you can find exceptions, but perversely, as Howard Wiley,
a death row prisoner, explained, "Life in the penitentiary preserves
you. Besides," Wiley soothingly summed it up, "as long as you're six
feet above ground and not six feet under, you got a chance."
"Nobody
enjoys serving life," observed Watson Gray, a former death row condemned
now serving life, "but it depends on how you live it."
"So
life, even in a maximum security prison significantly beats—"
"Being
dead," Gray laughed heartily. "Significantly."
As long
as a prisoner's daily experience inside is either severed from or perversely
connected to the crime committed on the outside, prisons can, and will never
become an instrument of justice. This perverse and utter failure of LWOP
destroys its claim as the better alternative to the death penalty.
Thousands
of hours inside Lorton prison severely tested my belief in equal protection and
equal justice. Those of us who still believe in justice must face up to
fundamental class bias in the criminal justice system. We are only beginning to
understand that the U.S. vastly over-punishes relatively trivial crimes, and
criminals. It banishes and marks them for life, and then releases them,
unprepared, into a cold or hostile world.
We detest
arbitrary and haphazard over-punishment. Ironically, however, the death penalty
probably constitutes the least arbitrary or haphazard part of the criminal
justice system.
Boundaries
may be subtle and difficult, but I still feel certain that rapist murderers,
serial killers, mass murderers, absent compelling mitigating circumstances, do
deserve to die and we have the moral obligation to execute them. I am convinced
that a humane society, by making their lives miserable before blotting them
out, more nearly approaches justice than if it provides them movies to stream,
sports to watch, arts and crafts and lots of free time to play.
Some people deserve to die. We
have an obligation to kill them.
If they
really want to eliminate arbitrariness, state and federal governments should
review in-depth condemned killers on death rows. Instead of allowing the
vagaries of appellate delay to determine who lives and who dies, they should
release many of the least bad condemned to the general population and execute
the remaining—worst first.
To say it has to be
painless is to lose sight of what it is...which punishment…in its very meaning
is. The word punishment comes from the same root as pain. It is and is
essential conception…painful. If it is not painful, it is not punishment. When
killers intentionally over depraved indifference inflict intense pain and
suffering on their victims. In my view, they should die a quick but painful
death. Not torture, not drawn out but quick and painful. [The
story of Capital Punishment BBC Documentary 2011]
On July
17, 2020 the United States executed Dustin Lee Honken, who shot and killed five
people—two men who planned to testify against him and a single, working mother
and her daughters, six and ten.
With its
first three choices for execution so far, the federal government seems to have
gotten it right.
Robert
Blecker, New York Law School professor of criminal law and author of The Death of Punishment, has been creating a TV series, Itchy,
set inside Lorton Central Prison.
The views
expressed in this article are the writer's own.
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