Mark Bennett at Defending People recently opined, in a post about Iraqi tribal leaders’ negative reaction to an American soldier being spared the death penalty by an American jury for raping and murdering a 14-year-old Iraqi girl and murdering her family: “People’s basest instincts – retribution, to name one at play here – are the same the world over. That the American criminal justice system is better than many is not attributable to the character of our government officials, but rather to the principles that constrain them.”
I’m all on board with the presumption of innocence and with not punishing offenders any more than is necessary and proper, but I’m not so sure that retribution and the satisfaction of honor are among the basest of human instincts, and that they don’t have a proper role to play in our criminal justice system. If men were angels, no one would seek retribution, and the sole purpose of society’s criminal justice system would be rehabilitation and the prevention of future crimes. But it would be unjust to demand of crime victims that they angelically swear off such motives, and especially unjust for our inherently unangelic political system to impose the standard of angels upon the merely human victims of crimes. If a parent’s young daughter is brutally raped and murdered, I can’t say that the parent’s desire for the criminal’s death is unjust, although such a desire is probably not saintly. The State has taken it upon itself to monopolize punishment for crimes. It would charge with a crime the parent who undertakes to take the law into his or her own hands and to punish with death the perp who raped and murdered his or her daughter. We have to recognize that we risk severe injustice if while denying the victim’s ability to avenge crime the State itself refuses to do so in his place.
On the other hand, I recall a recent story (although I don’t remember the details) where the family of a murder victim was asking the sentencing judge or the governor not to execute the offender. They said they didn’t want him killed on their behalf. I admire them for that. I think in such a circumstance it would be unjust not to honor such a request. The State itself should not be motivated by retribution for retribution’s sake. It does, however, have a duty to honor and respect a victim’s just desire for retribution, with all due moderation and due process and even-handedness. I don’t think it’s improper for the State to presume that the victim desires just punishment and retribution. Society itself, not only the actual victim and his family, can justly desire retribution for particularly heinous crimes, although again, if the victim and the victim’s family expressly wants no part of such retribution, their wishes should be given great consideration.
I am ambivalent about the death penalty, as any thinking human should be. I’m for the most part against it, but a lot of my opposition has to do with how it’s been applied in the real world, where it’s been applied unevenly depending on the race of the perp and the victim, and where we’ve seen many sentenced to death who’ve been later exonerated. For it to be acceptable in my view, a higher standard of proof should be applied (i.e. not merely “beyond a reasonable doubt,” but “beyond a shadow of a doubt”), and it should be applied to only the most heinous subset of murders (e.g., those preceded by rape and/or torture, devoid of all mitigating factors). The death penalty would have been appropriate, in my opinion, for the BTK killer, and monsters of his ilk.
Setting aside how the death penalty has been in fact implemented in the real world, I’m not convinced that as a matter of principle it is inherently always an extreme rather than a moderate act. For certain criminals, one gets the sense that life in prison without parole is simply not an adequate punishment, that certain of these cold-blooded killers will live a “fulfilling” life and even thrive in the peculiar environment of prison. I became persuaded, after being more or less on the fence, that the death penalty is sometimes warranted after seeing “Dead Man Walking,” ironically a putative anti-death penalty movie which nevertheless did a very good job of showing both the condemned man’s perspective and the victims’ perspective. One got the sense that the enormity of what the character played by Sean Penn had done would never have been brought home to him in the absence of his own impending cold-blooded execution by the state, if he had just been left to rot away in a cell nursing his resentments and self-justifications.
Mark Bennett responded by stating: “Retribution – vengeance – ‘getting even’ is not a rationale for punishment in any American penal code that I know of, and rightly so – objective observers know that we can never get even.”
I’m not convinced that this is the case. 18 U.S.C. section 3553(a) provides, inter alia:
(a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—(1) the nature and circumstances of the offense and the history and characteristics of the defendant;(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
Paragraph (2)(B) provides for deterrence as a purpose of the criminal law, (2)(C) for incapacitation, and (3)(D) for rehabilitation. What then does (2)(A) provide for, when it speaks of “just punishment for the offense” and “reflect[ing] the seriousness of the offense,” if not retribution?
It’s important to note that retribution is not inherently less humane than the other purposes of the criminal law when considered from the perspective of the defendant. After all, the best way to deter and incapacitate a thief presumably would be to execute thieves. Such a sentence, however, would go far beyond the proportionate “eye for an eye” contemplated by retributive justice. Many long prison terms (presumably motvated by the values of deterrence and incapacitation) are handed out by our supposedly modern and enlightened criminal justice system that seem to go far beyond what proportionate retribution for the actual criminal culpability of the accused would allow.