A Life for a Death
The October 2022 decision by a Florida jury to spare the life of Nicolas Cruz, the shooter who killed fourteen students and three teachers at a Parkland high school in 2018, was met with outrage by many observers. How, in a state where the death penalty is still in regular use, could a mass murderer of innocent children be sentenced merely to life imprisonment without possibility of parole?
The debate underscores most of the buzzwords on both sides of the capital punishment controversy. On the one hand, it is difficult to see what purpose it serves to allow such an individual to go on living at the taxpayers’ expense, never mind the perceived need to punish such a heinous crime. On the other hand, taking the life of the convicted will not bring back the dead or significantly mitigate the suffering of those who mourn them, not to mention the mental illness and other issues which presumably played at least some role in the killer’s actions. By nature, we are quick to use a determinist framework to excuse our own faults, and equally quick to attribute abundant free will to those who hurt us.
But can the taking of one life compensate for the loss of seventeen? Does capital punishment reduce crime rates more effectively than alternative responses to crime? Can punishments ever actually be fair?
At root, the real difference between capital punishment and all other legal punishments (at least in countries that formally forbid cruel and draconian punishments, which for some does not preclude capital punishment) is that the former can never be said to be purely preventative. There is often a retributive aspect to the law, but other punishments, like imprisonment, can always be plausibly framed as preventative measures. Where life imprisonment is an option, opting for the death penalty instead can only be seen as explicitly vengeful.
The phenomenon of revenge likely dates to before humankind’s emergence as a species, judging from observations of our primate relatives. The prescription of death as a punishment for certain crimes can be found in the oldest law codes in the world, all the way back to the Code of the Babylonian king Hammurabi in the 18th century BC.
Capital punishment was widespread in ancient times, but its utilization varied widely (then as now) from place to place. Hammurabi’s Code first enshrined the principle of “an eye for an eye” as a mitigatory measure because retribution could all too easily lead to a cycle of violence disproportionate to the original offense. By contrast, the law codes of the Athenian lawgiver Draco in the 7th century BC made almost all crimes punishable by death. The one thing these legal systems had in common was their overwhelming bias in favor of the aristocracy, reserving the harshest treatment for the lower classes.
In ancient and medieval times, executions were often combined with torture and mutilation to exacerbate the element of punishment. The most famous combination, of course, was the Roman method of crucifixion. The Emperor Constantine abolished crucifixion and other sadistic penalties in the 4th century AD, but the adoption of Christianity in the Roman Empire by no means put an end to the death penalty or torture in Europe. William the Conqueror suppressed the use of executions while allowing the mutilation of criminals but, by 1352, his descendant Edward I had instituted “hanging, drawing, and quartering” as the mandatory punishment for high treason.
Capital offenses have, historically, run the full gamut from the arguably reasonable (as a punishment for murder, for example) to the petty. The Law of Moses demanded the transgressor’s life not only for murder and rape but also for adultery, bestiality, blasphemy, kidnapping, idolatry, homosexual relations, rebelling against parental authority, and breaking the Sabbath. The Romans executed people for publishing libels, causing disturbances at night, perjury, cutting a farmer’s crops, cheating a patron, and theft. In medieval England, people could be hanged for clipping coins, crushed with rocks for refusing to confess their crimes, and burned for marrying a Jewish person. The use of boiling as a means of execution was also instituted in 1531.
The popularity of the death penalty in colonial times explains its pervasiveness in the American colonies. By the 18th century, there were over 200 crimes punishable by death, including pickpocketing and thievery. The range of punishments varied from colony to colony, but death could be meted out for such offenses as witchcraft, sodomy, buggery, denying the existence of God, piracy, horse-stealing, and counterfeiting. In the decades after the United States became independent, there was a gradual shift away from the overuse of the death penalty in favor of limiting it to only the worst offenses. Michigan became the first state to (mostly) abolish the death penalty in 1846.
The practice has never gone away entirely, however. The number of executions in the United States is constantly waxing and waning, ranging from 55 in 1802, to 132 in 1884, to an all-time high of 197 in 1935, to 2 in 1967 (preceding an unofficial 10-year moratorium as the Supreme Court weighed the constitutionality of capital punishment), back up to 98 in 1999, and 11 in 2021. Executions are disproportionately concentrated in certain states (with 27 out of 50 states still allowing capital punishment), with the highest per-capita uses of the death penalty occurring in Oklahoma, Texas, Delaware (before it was abolished there in 2016), Missouri, Alabama, and other states mainly in the South and Midwest.
Florida ranks 15th on this list. This is the state that executed the Presbyterian minister Paul Hill in 2003 after Hill was convicted of murdering the abortion provider John Britton and Britton’s bodyguard in 1994. Therefore, it stands to reason that some would be perplexed to see a Florida jury not recommend capital punishment for the Parkland shooter.
Most countries today have abolished the death penalty for all crimes. In this sense, the United States is an outlier among developed nations. Public support for capital punishment remains strong, with the Pew Research Center reporting in 2021 that 60% of Americans favor the death penalty for those convicted of murder. Support is stronger among Republicans (at 77% in favor), but by no means modest among Democrats either (with 46% in favor, down from 49% in 2019).
I remember some of my left-wing friends from college expressing their satisfaction on Facebook when the shooter who opened fire in a Black church in South Carolina was sentenced to death several years ago. My home state of Washington, notorious for its liberal politics, is one of the 23 states to have abolished the death penalty…but it did so only in 2018, one of the most recent examples. I suspect my progressive friends’ attitudes may hold a clue as to why it hung on so long even here (no pun intended).
In the 20th century, state-sanctioned killing occurred on a massive scale under regimes across the political spectrum. A citizen of the Soviet Union was as likely to be arbitrarily killed on suspicion of harboring treasonous thoughts as a citizen of any right-wing dictatorship. The rationale is universally applicable: to enjoy the omelet, we must break a few (million) eggs.
Capital punishment, like any punishment, has a communicative function: it is an assertion that there is only so much we will tolerate, that the violation of certain principles can morally justify the supreme act of retribution. Where central authority is stronger, the death penalty is generally more common (along with other punishments) because authority is hollow without the tangible imposition of restrictions, rules, and laws. Any transgression in a totalitarian state represents not only a personal misstep but a fist raised against the moral glue of an entire culture.
This is true to some extent, of course, in every culture, but liberal democratic cultures are much less inclined toward capital punishment because they value individual rights, hence their moral authority is predicated on the protection of liberties. Liberal societies have made the greatest strides in reconfiguring the rationale of criminal justice to emphasize prevention and reintegration over punishment for punishment’s sake. It may be impossible to eradicate the human impulse to desire revenge, but we can teach ourselves to handle crime and punishment constructively.
The prevalent judicial approach in the United States, however, is too often to rationalize our impulse to punish, reflecting our enduring preoccupation with rugged individualism. This is true outside the law as well, with our ongoing attachment to cancel culture and public shaming. Young progressives of my generation have not outgrown some of our culture’s worst tendencies. In particular, as Americans have grown more politically polarized, progressives have not proven adept at resisting the siren song to fight fire with fire. We have continued to downplay some of the most important moral questions regarding the rights of others.
