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.
The Declaration’s logic lends itself equally well, however, to condemning governments that jeopardize our inalienable rights through sins of omission. The petty criminal and the sadistic murderer are, as much as the terrorist, making a political statement: “Your rights mean nothing if I can get away with violating them when it suits me.” The reason governments are instituted among men is to refute that assertion, to insist that by acting collectively through government we can secure and enjoy our rights far more reliably than we can by fending for ourselves individually in the state of nature’s war of all against all. This idea that a crime against one is a crime against the whole is conveyed by the nomenclature for criminal trials, such as The People of the State of Colorado v. James Holmes. Holmes stands accused, that is, not only of violating the rights of those he killed and wounded, but of a crime against all Coloradans. The failure to prosecute and punish this crime would call into question their ability to maintain a social and political order.
A government like Belgium’s or Scotland’s — so feckless, myopic, or morally fastidious that it compassionately abbreviates prison sentences for savage killers — sends exactly the wrong message about the most important political question. It tells prospective criminals that committing crimes, even the most depraved ones, will not necessarily prevent them from pursuing a satisfying life. A soft-hearted, soft-headed functionary can be counted on, after years have passed and memories faded, to clear the way for the criminal to seek out rich, diverse experiences despite the distant, awkward detail of that conviction for a horrific act.
At the same time, it tells law-abiding citizens they’re chumps for counting on the state to defend them by zealously disabusing criminals of the idea that it’s no big deal to violate others’ rights. Worst of all, it salts rather than salves the wounds of murder victims’ families, who counted on the government for justice. The government echoes and validates, rather than drowns out, criminals’ assertions about the irrelevancy of their victims’ rights, and the concomitant derision of the survivors’ grief. “I believed this would not happen,” said the father of one of the girls Michelle Martin’s husband murdered. “If Martin gets an early release, then who will they keep in prison?”
If the worst penalty the state can inflict on a convicted murderer is life imprisonment without the possibility of parole, then it will have to either punish the most monstrous crimes no more severely than less terrible ones, or ratchet down the punishment for every other crime to maintain proportionality. And there is a second respect in which one thing leads to another. Before America decides to emulate the enlightened nations that have abolished capital punishment, we should ponder the fact that such enlightenment culminates in the aversion to any punishment. Saw off the top rung of the penal ladder and there’s no good reason not to remove the one below it, and then the next. For example, Anders Behring Breivik, the Norwegian convicted of 77 murders, faces a maximum prison sentence of 21 years. And he is unlikely to serve all of it since, as The Daily Beast reported, “even murderers are fully eligible for parole after just a few years in prison.”
Such leniency comes naturally to “a country that considers the idea of punishment barbaric,” and that takes “great pride in rejecting a justice system based on revenge and retribution.” If opponents of capital punishment want America to join in rejecting retribution, they should make something clear: Does their campaign stop once the death penalty is abolished — and, if so, on what basis can wringing every trace of retribution out of the criminal-justice system be limited to abandoning executions? Or is the goal to follow such moral sensibilities to their logical conclusion, rendering American justice indistinguishable from the kind provided in Belgium, Scotland, and Norway?
— William Voegeli is a senior editor of the Claremont Review of Books, a visiting scholar at Claremont McKenna College’s Salvatori Center, and the author of Never Enough: America’s Limitless Welfare State.