After Jonah Goldberg applied the case for capital punishment to the Aurora shootings, the liberal blogger Joel Mathis argued that executing James Holmes would serve no purpose other than retribution. Mathis implied that 1) deterrence can’t be part of the death-penalty debate in a case like the movie-theater atrocity, since people wicked or unhinged enough to contemplate perpetrating an unprovoked massacre of random strangers are unlikely to work through any cost-benefit analysis; and 2) there are people who think retribution is “justification enough” for capital punishment, but Mathis isn’t one of them and has a low opinion of those who are.
Note that discarding capital punishment creates practical dilemmas. It reduces prosecutors’ leverage when seeking confessions or testimony in murder cases, increasing the likelihood that some murderers won’t be convicted. And, since there is nothing more the state can do to them, it effectively gives convicts already serving life sentences a license to kill prison employees or other inmates. Prison gangs have followed this incentive structure’s logic to lethal conclusions.
For the sake of the argument, leave those complications aside and stipulate that the death penalty does not deter any prospective murderer. If we believe that retribution is a motive civilized societies should have outgrown long ago, that makes the instrumental value of incapacitating people who have demonstrated their will and ability to harm others the only remaining justification for executing convicted criminals. Thwarting careers in crime is a big part of the criminal-justice system’s mission, and studies consistently show that executed murderers have lower recidivism rates than incarcerated ones. However, if — a big if, but a theoretical possibility — we can imprison people in ways that guarantee they will pose no threat to anyone inside the penitentiary (or outside in the case of an escape), then every justification for capital punishment has been discarded.
Is retribution an atavistic barbarity, then, an unworthy motive we should banish from our laws and the administration of justice? Consider the news from Belgium about Michelle Martin, a woman convicted for complicity in her husband’s crime spree of nearly 20 years ago, which included kidnapping, raping, and torturing six girls, and murdering four of them. As for the two he didn’t kill, he left them locked in the basement while he served four months in prison for an unrelated theft conviction; Martin was supposed to feed them, but instead she let them starve to death. A court has now granted her, after 16 years in prison, an early release from her 30-year sentence.
The court’s decision effectively tells Belgians — including the murdered girls’ families — to get over it: Yes, what happened to those poor girls was dreadful, we’re terribly sorry and all that, but it was a long time ago, and since nothing will bring them back we should all get on with our lives. The continued punishment of people who, in the experts’ opinion, pose no further threat amounts to nothing more than retribution — in this view, an unacceptably primitive motivation. The court has concluded that Martin’s imprisonment no longer serves any practical purpose, and practical rather than moral purposes are the only ones that matter if retribution has nothing to do with justice. Martin is no longer “the woman who was incarcerated,” according to her lawyer. “She says her guilt will follow her to the grave.”
A similar enlightened desire to transcend Old Testament claptrap about vengeance informed the Scottish government’s decision in 2009 to release Abdelbaset Ali al-Megrahi from prison eight years after he had been convicted of the Pan Am Lockerbie bombing, which killed 270 people. Justice Secretary Kenny MacAskill defended his decision to release the terminally ill prisoner: “Compassion and mercy are about upholding the beliefs that we seek to live by, remaining true to our values as a people — no matter the severity of the provocation or the atrocity perpetrated.” (Emphasis added.)
Such efforts to get beyond retribution, however, reveal moral decline rather than progress. Recall America’s Declaration of Independence. Governments are instituted to secure our inalienable natural rights, which include life, liberty, and the pursuit of happiness. “Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.” The Declaration argued that King George’s government had become destructive of the legitimate ends of government by sins of commission, “a long train of abuses and usurpations” that violated Americans’ rights.