Troy Davis is dead, but not forgotten. This past weekend, over 1,000 mourners attended the funeral of the convicted murderer recently executed by the state of Georgia. Elsewhere, the frantic round of point-counterpoint surrounding his execution suggests our long-running national argument over capital punishment is, in fact, here to stay. Will it ever die?
Though tides of blood and ink be spilled, the answer is no – unless, perhaps, Americans manage to confront the foundational moral and political questions that even today’s angry broadsides and careful parsings miss.
Consider the exchanges touched off by the Davis case, still reverberating this week. In a Sunday column at the New York Times, Ross Douthat cautioned against cultivating an atmosphere of moral congratulation around the idea of abolishing the death penalty posthaste.
But to writers like Leon Wieseltier, striking back in The New Republic, Douthat slipped into a heartless form of casuisty, defending the proposition that Americans must actually embrace the risk of executing the innocent in order to ensure that the criminal justice system is reformed in the thoughtful way that a moderate pace might help guarantee. “So injustice,” Wieseltier scoffs, “is extenuated if it provokes an interest in justice. Injustice is even a lucky break for justice.” Pro-Davis folk – left and right – piled on.
Douthat – and here we come to the problem with the whole of the current commentary – replied to his critics by insisting that soothing our “anxieties” over executing the innocent “by substituting life-without-parole for capital punishment” likely won’t “lead to more humane treatment for the millions of inmates whose guilt isn’t really in doubt.” The key to Douthat’s analysis is – as he put it in the Sunday column – “If capital punishment disappears in the United States, it won’t be because voters and politicians no longer want to execute the guilty. It will be because they’re afraid of executing the innocent.” In fact, the key to the death penalty debate is why so many citizens and officials don’t want to execute people, guilty or innocent. Troublesomely, this is just where the present debate falls flat.
The terms of disagreement hinge on two contradictory principles both taken as self-evident: the state, as they say, either simply does or doesn’t have the legitimate power and authority to take the life of a citizen convicted of a crime.
But dig deeper. The conceptual foundation of our capital punishment regime is twofold. First, there’s the claim that the surrender of one’s life can be a just penalty for a crime commensurate with one’s own execution. (In a stateless society, sovereign individuals might freely agree to give up their lives if, say, they take the lives of others.)
Second, and just as important, there’s the claim that the seriousness of such an arrangement can only be procedurally authorized if the defendant is tried by peers presented with the face-to-face evidence of peers (or, as the standard slips, the next best thing). Politically and morally, the legitimacy of capital punishment depends in crucial measure on our bearing the onus and responsibility of witnessing acts punished by death, bearing that witness, and together exercising judgment on its basis.
If the mood of the country is turning against capital punishment, it’s because these foundational principles no longer strike powerful chords in our guts. The power of the state and the fate of innocents are important issues, but not root issues. If it stops making sense for most Americans that people should want to agree to give up their lives if they take lives, or that personal witness and judgment – rather than lab work and mandatory minimums – are essential to justice in a free society, then capital punishment becomes an absurdity.
James Poulos is a commentator living in Los Angeles. He writes a column at The Daily Caller and is a contributor at Ricochet. Previously, he was the host of The Bottom Line on PJTV.