The Corner

Capital Punishment, Retribution, Mercy, and Meditation

The execution of Troy Davis has me thinking about the death penalty — its infliction on anyone, not just Davis — once again. When last I wrote on this topic, I said that retribution is an essential component of just punishment, and that for some crimes I could think of no commensurate retribution other than death. (The Petit home-invasion murders, which are too terrible to describe, would be my paradigm here.)

It seems to me now that we might look more deeply into the nature of retribution as well as our motive for meting it out.

#more#Might it be that an individual who has committed a heinous crime will become his own worst tormenter if forced to look — really to look — at what he has done? If we believe that conscience is an innate part of human beings — no matter how deeply buried it is under selfish or even wantonly sadistic impulses, and despite the difficulty of translating its voice into a system of universally and cross-culturally applicable rules — then this is a possibility worth considering.

I have heard it said, and thought it myself, that spending one’s life in prison would be a worse punishment than death. Why?

Or consider a question from Diederik Boomsma and Jonathan Price, who, discussing assisted suicide in the current issue of NR, ask: “If there is in fact a right to be killed, may the rapist avoid his term by requesting death?” (The entire article — “Western Suttee: Against a ‘right’ to be killed” — is fascinating and well worth reading.) As the authors concede, it is hard to imagine many criminals making this choice, but is it impossible? If not, again, why? Might the criminal be motivated, at least partially, by a desire to escape himself, to avoid the confrontation with his conscience, and the accompanying anguish, that a prison term would merely occasion or accentuate?

We might build a prison specifically designed to impose retribution of this type. I envision mostly solitary confinement, with just enough social interaction for the inmate to maintain his sanity. On the walls are projected, from time to time, photographs of the crime scene or the victim(s) (both before and after the crime; life as it was, and life as it has been destroyed). Recorded statements from the victim(s) or their families and friends about the trauma the crime has caused — whether read by the authors themselves or by actors — are played in the cell. Any and all amusements — television, music, sports, recreational reading — are kept to an absolute minimum, so that the inmate has little to do but sit and think. 

As for our motive in meting out retribution, it seems that, once we dismiss deterrence, there remain at least two possibilities.

The first is that we derive satisfaction from inflicting it. In the case of capital punishment, this satisfaction would depend on our absolutely throwing the criminal away, would involve a pleasure not just in permanently rejecting him as a member of our society, but also in coming as close as we can to annihilating him existentially. Certainly one may feel that there are pleasures to which we (and more especially his victims or their families and friends) are entitled. All the same, it is worthwhile to acknowledge the presence of an egocentric motivation in this approach, and to examine it.

The second possibility is that we want those who have done terrible things to inflict introspective retribution on themselves: not for any benefit of our own, but precisely for their sake. The idea here is that, even if prudence compels us permanently to give up on them as members of society, we have not rejected them existentially, and we leave open the possibility that the self-torment our punishment occasions will redound to their good, perhaps even their redemption, in some ultimate sense that perforce lies beyond our conceptual grasp. Applying theological analogues, we might say that this approach rejects Hell but retains Purgatory, and if need be a very severe one.

Looking at the issue from this second point of view, I can see the type of imprisonment I have described as simultaneously more dreadful and more merciful than death. This helps me better understand the perspective of my friends who oppose the death penalty, and makes me wonder whether the tension between retributive justice and mercy, which in 2009 I called “insoluble,” may admit of resolution after all.

In connection with this, I offer a passage from Meditation in Action, by Chögyam Trungpa, a controversial and sometimes outlandish figure who, interestingly, was never rejected by his lineage as a legitimate holder and representative of it. I do not belong to that tradition, and do not know what Trungpa would think of the application of his words to the present topic, but they occasion reflection in any case:

There is also a story about Brahma, who came one day to hear the Buddha preach, and the Buddha asked, “Who are you?” And Brahma for the first time began to look and check into himself (Brahma personifying the ego), and when he first looked into himself he couldn’t bear it. He said, “I’m Brahma, the Great Brahma, the Supreme Brahma.” So Buddha asked, “Why do you come and listen to me?” And Brahma said, “I don’t know.” Buddha then said to him, “Now, look back into your past.” So Brahma, with his wonderful ability to see his many past lives, looked; and he couldn’t bear it. He simply broke down and wept in front of Buddha. Then Buddha said, “Well done, well done, Brahma! That is good.”