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jane coaston
Today on “The Argument,” is there a moral argument for the death penalty? [MUSIC PLAYING] On July 1, the Department of Justice halted executions of all federal death row inmates, and just this month, more than 20 Democratic Congress members asked the department to go even further, to stop seeking the death penalty at all. Joe Biden is the first president in American history to openly oppose capital punishment, which is a sharp contrast from his predecessor, who carried out 13 executions in the last six months of his term. I’m Jane Coaston. And there’s this essay that’s stuck with me through conversations around if and how the death penalty might change under Biden, and what this might mean for the idea of justice in this country. It’s by writer Liz Bruenig, who, in December of 2020, traveled to Terre Haute, Indiana to witness the execution of Alfred Bourgeois, a man who had been found guilty of crimes including the murder of his two-year-old daughter. The piece she wrote for The New York Times is called “The Man I Saw Them Kill.” Liz opposes the death penalty, but sitting next to the family of his victims, she writes, quote, “The impulse to erase from the Earth every trace of a crime as monstrous as Mr. Bourgeois’ still arises in me, pitting my emotions against my intellect.” I know what that feels like. Personally, I was raised in a Catholic tradition, which declared the death penalty inadmissible in all cases three years ago. But I also recognize that there are people from different traditions who believe that the death penalty can be the right form of truly just punishment, like Dispatch senior editor David French. David and Liz, who’s currently a staff writer at the Atlantic, occupy different sides of the death penalty debate, and have each spent years thinking about the morality of this punishment. They both approach the death penalty from a religious standpoint, but even if you’re not religious or spiritual, I think you’ll still find our conversation thought-provoking. I know I did. We started with Liz’s experience attending this execution last December.
liz bruenig
I was already against the death penalty, always had principles against it, but emotionally, I was as periodically as motivated as anyone to see someone get it. I mean, there have been many cases that I have read about in my line of work, and also just as a consumer of news, where I’ve thought, yeah, this person doesn’t deserve to live. I didn’t especially walk away with another feeling in place of that one. It isn’t that I became sort of righteously, you know, defensive of the people involved, though I don’t think they should be killed. I just realized that the satisfaction and the sense of rightness that I had always suspected would be there in the wake of an execution was not. There was nothing. There was nothing. So it was replaced with this sense of the just hopelessness and despair of the whole enterprise, and the sense that it should be shut down.
jane coaston
Something that’s interesting for me, Liz, is that we both come from the same religious tradition, that opposes executions bar none because it is an attack on the inviolability and dignity of the person. But David, you come from a different religious tradition, and you wrote a piece a couple of years ago for National Review saying that the death penalty preserves the dignity of life. You reference not just the Old Testament, you also reference the New Testament, specifically Romans 13 saying that the power of the sword should rest with the government, and that that should hold terror for those who do wrong. And so I was interested to hear how your faith informed your support for the death penalty in a different way, and how that argument works for you.
david french
I would say this about where I am on the death penalty. I have long believed that the death penalty is not per se unjust. In other words, that the idea that the death penalty is contrary to the will of God as a Christian is not — that the death penalty can be just. There’s a wide variety of belief on the evangelical Protestant side, which I’m an evangelical Protestant. There is a general consensus that the death penalty itself is not unjust, that, in fact, the death penalty can be the only truly just penalty, given the gravity of the crime, given the gravity of what has occurred. That doesn’t mean that mercy shouldn’t intervene. There’s a difference between the concept is the death penalty per se unjust or can the death penalty be just and the application. And this is where I think other biblical principles begin to come into play, biblical principles requiring certain levels of evidence, for example. So even in the Old Testament, Jane, there was a standard of proof, for example two witnesses. Also, there is an abhorrence of sort of unfairness or favoritism or, to use a more modern term, discrimination. The Book of James talks very clearly about how there shouldn’t be favoritism between rich and poor, but here in the United States, in many ways, it’s almost as if there’s a point at which you reach in which you could be too rich to be executed, practically. And also, we have a long history in something that we should talk about of racial disparity in the application of the death penalty. And so my question with the death penalty in the United States has not necessarily been is the death penalty per se unjust, it is do we carry out this penalty in a way that is unjust.
jane coaston
There is a Christian understanding of what justice means and there is a secular American understanding of what justice means. Sometimes, after a conviction in a case, and you hear from the victim’s family saying that justice was done. But with what Liz was saying is that after the execution, there was no sense of this is finished, that there has been something sought. Nothing changed. There wasn’t the return of a life, there was a loss of another.
david french
Yeah, I thought that was incredibly powerful. I mean, the entire — Liz, your entire piece was incredibly powerful, but that part at the end, I think, was very powerful. And to me, it illuminates a difference between justice and vengeance. So justice, to me, is something that does the penalty fit the magnitude of the crime. Vengeance is something that is much more aimed at creating a sort of sense of emotional satisfaction in punishing another person for their role in a crime. And so vengeance is what leads to excessive punishment. Vengeance is what leads, often, to cruelty, because you’re seeking, in many ways, that satisfaction, that sort of sense of emotional closure that is often completely elusive and often completely impossible to attain, whereas justice is something that should be disconnected from the sense of emotional satisfaction, which is an incredibly subjective thing. The question with justice is what punishment fits the crime, what punishment conveys the gravity of the crime, for example, regardless of whether it makes us feel satisfied or vindicated in its imposition, because if we condition punishment on that subjective sense of vindication, especially when that is often filtered through things like racism, it’s often filtered through classism, it’s often filtered through all of the kinds of the national and ethnic hatreds that have so distorted life in the United States and across the world, then that’s when you begin to get into that vengeance and that punitive spirit that can be so destructive. Justice, to me, is different. Justice is something that should be, as much as possible, disconnected from the emotion surrounding the incident.
liz bruenig
So I think that’s true. I think justice and vengeance are distinct things. The question is, is it possible for humanity to practice them as separate principles? I sincerely doubt it because we are guided much, much, much more by our emotions than our rational minds. So if you look at, for instance, the idea that the death penalty is the only fitting punishment for certain crimes, this immediately seems to produce a logical problem, which is we put Alfred Bourgeois to death, for instance, for killing a single person, so a death for a death. We also put Timothy McVeigh to death for killing 168 people, and injuring more. So was it the case that Tim McVeigh wasn’t punished? How was that just? Or if the proportionate punishment for killing 1,000, a million, 6 million people, like Eichmann got — if that is the only proportionate punishment, and it’s also the only proportionate punishment for killing a rival drug dealer in a gunfight, it seems to suggest that maybe there just isn’t any proportional punishment or any way to draw proportion with certain types of evil, and that trying to figure out a way to approximate the level of evil in our response is just kind of leading us further down a path of degradation and madness.
david french
You raise some very good points. And I don’t, in any way, believe that the death penalty is the just response to any killing. I do believe that there is a combination of premeditation plus any number of aggravating factors is sufficient to render a death penalty just, provided there’s sufficient evidence. But you’re right, I mean, there is an enormous range of evil that can occur beyond killing one person or two people or, in Timothy McVeigh’s circumstance, more than 100 people or, in Hitler, 6 million, but when you’re focusing justice on one person, there is only their one life. There is no way to really exact upon a person the full toll of 6 million lives or 200 lives.
jane coaston
Especially because I think that, at some level, the death penalty has been positioned in a lot of different ways. We see it positioned, as David has noticed, as an idea of seeking justice, as seeking justice for the murder of an innocent person. That’s how you put it in National Review article. But we also see it positioned as a deterrent to future crimes. One, does the death penalty act to deter people from committing violent crimes, and two, is it worth it, even if it did?
david french
I’ll say I am very much opposed to the use of criminal law as a deterrent. Criminal law should be an instrument of justice, not deterrence.
jane coaston
So it should not be to ensure that other people don’t do the crime.
david french
For example, if you want to look at one of the worst legal developments of the last 30, 40 years, it would be the three strikes and you’re out law, which contributed to mass incarceration. That was essentially saying, we’re going to try to deter crime by increasing the penalty for the particular crime that we are adjudicating, but we’re going to make an example of you so that others do not follow your example. Justice is not the punishment is the crime. Justice is the punishment should fit the crime. And the deterrence function there, I think, is a very dangerous road to go down on, and it is one reason why we have mass incarceration, which is criminal law as social engineering, rather than adjudication of justice. And that took us into some very bad places.
liz bruenig
Yeah, I would agree that the deterrence angle has been extensively studied, as well, and the findings are inconclusive. Part of the problem is that the death penalty is so arbitrary, right? About half of states have it, and we have it federally, and then the others don’t. And then you have prosecutorial discretion, and prosecutors can just decline to seek it. Even if it’s a capital qualified case and you’re in a state that has capital punishment, prosecutors can just decide not to. And there are all kinds of items of random chance that factor into death penalty sentencing. So for instance, a majority female jury is much less likely to hand down capital punishment than a male/female equal death qualified jury. And there’s just no telling if you’re going to get that draw or not. And then you look at all the people remaining on federal death row after what Barr and Trump did, the 13 who were chosen were not first in line. They were not executed because they had been there the longest and their number was up. They were handpicked according to a criteria we don’t understand. And so when you’re thinking of putting yourself in the shoes of someone who’s going to commit a crime, A, most people who commit crimes don’t think they’re going to get caught. And then even if you think I’m going to get caught, there’s just so much uncertainty.
jane coaston
The involvement here, whether it’s former Attorney General Barr, whether it’s judges sentencing people to death, whether it’s juries sentencing people to death, the involvement here is all people, people who are fallible. I think about this a lot because one of the strange instances that happened during the trial of serial killer Ted Bundy is that Ted Bundy defended himself in court. And he had gone to law school, and the judge seemed to be pretty supportive of him, said that I don’t feel any animosity towards you, I want you to know that, I wish we could have met under different circumstances. But that same judge could have sentenced any number of less likable, less charming people. We are all, again, fallible beings. People are involved in this decision. How can we make this decision as people?
david french
Let’s attack this from two angles, one sort of a biblical angle, one from an American constitutional angle. So on the biblical angle, I mean, frankly, I find that a very compelling argument, except that the one thing that I would note is that when God implemented the death penalty in the levitical and mosaic law, and then sanctioned it, arguably, in the New Testament, we’re talking about still systems that had human beings in them, so that the very presence of the human system doesn’t invalidate the possibility of death penalty as a just system. But that’s an abstract point. Here’s a concrete point. There’s an American justice system that we’re talking about. The American justice system is not the same as all other justice systems in the world. I think there are some that perform better than ours and there are some that perform worse than ours. And the way in which our system performs poorly is it becomes most obvious and stark when we pull out and we talk about the death penalty. So we have dramatic racial disparities. We have dramatic class disparities. We have a situation, and you will have a trial counsel, for example, that’s an under-resourced public defender, and an enormous amount of the record of the case and the record of the entire litigation is set at a time where an under-resourced, maybe under-experienced person is defending before groups like, say, the Innocence Project, or more, better-resourced public defenders, or non-profits get involved. And so you have a system in the United States that, on multiple fronts, is very, very troubling in its application. And so I think that that’s where, if you’re talking about both biblical and a constitutional concept, the death penalty is permitted. It is a just punishment. However, the death penalty as performed in the United States of America begins to violate other biblical and other constitutional concepts. And so everything that you just said, Jane, and everything that Elizabeth said earlier about the randomness here is what is so deeply troubling to me about the death penalty as applied in the United States. And I think that those people who are like me, who believe that the death penalty can be just in specific circumstances, that’s not the end of the inquiry. And that’s where you’ve seen a lot of conservatives, myself included, have real conflict.
liz bruenig
Right. To the degree that you can see biblically God sanctioning or even commanding the death penalty, the laws in those circumstances are laid by God himself. And that’s not the case in the United States of America. We actually make our own laws, and we decide what particular crimes and what aggravating circumstances, and then we add a whole other layer of bureaucratic randomness. And then we choose based on our moral intuitions because we’re a liberal democracy. And the way we should feel about it, there is so much fallibility, as Jane said, that’s involved in settling that question. I just turn it over to god. He’ll decide. We can protect our societies. We can attempt to rehabilitate. We can attempt to teach using our criminal justice system. I think those are both appropriate uses. And I think those are provisional measures that are fitting in terms of what we actually have the capacity to know and do as humanity. There are two trees in the Garden of Eden. There’s the knowledge of good and evil, and there’s the tree of life. And we don’t have perfect knowledge of good and evil, nor do we have perfect knowledge of life. So those, to me, are just areas where we just have to cede the ground to the Lord.
jane coaston
You know, I’ve talked about how I became increasingly more libertarian and became a registered libertarian because I am extremely distrustful of state power and people who are enthusiastic about state power under one administration and then are, like, denigrate state power under the next administration. I just find that anathema to me.
david french
Right. Well, first, I just want to make it completely clear that I’m not arguing for the death penalty under levitical law. What I’m- –
jane coaston
I’ve abandoned levitical law in many respects.
david french
What I’m trying to talk about is if a Christian believer approaching scripture and reading scripture, should they take away from scripture that it prohibits the death penalty flat out, here now, not in mosaic times, et cetera. And my argument is that I do not believe that scripture prohibits the death penalty. In fact, I think there are some circumstances in which the death penalty is just, and not imposing the death penalty is mercy. The question I have conceptually is are there circumstances in which, for example, war criminals, people who have committed atrocities at scale. And my argument is that, for some of these individuals, the death penalty is just absolutely the most — it is the just outcome, and any other outcome for them, while we may choose to refrain from imposing the just outcome, is an act of mercy. And now, whether or not we choose as a people to be merciful in that way and to not impose the just response to what these individuals have done, I don’t think there’s a truly credible argument that the death penalty is now mandatory, that there’s a Christian moral obligation that we impose the death penalty in a secular liberal democracy, but is there an argument that we must refrain. That’s where I begin to, I think, differ from Elizabeth. And I would say there are crimes for which the death penalty is the most just punishment and any other action is mercy, and that we don’t have to be merciful.
liz bruenig
Oh, I think we do. I think the commandment to be merciful is one you see running all through the text of Scripture, but it’s also one that you see, I think, very prominent in Christ’s ethics, in particular. And you can see God’s reasoning, which is you think of Jonah at Nineveh, he goes to Nineveh to prophesy because God has told him he’s going to destroy Nineveh. So Jonah shows up, he says you’re all sinners and God’s going to destroy you all, and then he promptly takes himself to watch the light show. And they repent and God spares them, and Jonah gets mad. He fusses about it. He wanted to see the carnage. And God says, what do you know about these people? And I think that is very instructive. Mercy is demanded of us because vengeance belongs to the Lord. So anything erring on the side of absolute certainty and maximal punitiveness is going to end up usurping some authority, some ground from God. And so that’s my sensibility. I think that operating mercifully in the world is sort of key to Christianity. And even in non-Christian societies around the world in modern times, and also even in the ancient world, there was a recognition that clemency, that mercy, that restraint actually demonstrates and cultivates virtue, power, as to where this sort of unbridled indulgence tends to cultivate a kind of decadence and corruption. And death penalty is an indulgence.
jane coaston
What do you mean by that?
liz bruenig
Look at it this way. What if we had the death penalty and no one knew about it? Not the press, not the victim’s family, the state just quietly took them somewhere else, and you had no idea if they were in prison or if they were dead, and the victims’ families and so forth are never notified. Would that strike anyone as just, people who are proponents of the death penalty? I don’t really think so. In fact, if you look at the death chamber at Terre Haute, it’s like a wheel with spokes, and the spokes are different chambers, separate rooms. And victims’ families are invited into one room to watch. And then you have the space for the press. We’re supposed to look and report it. And then at Terre Haute, in particular, but this is true of death chambers around the country, they immediately put out a press release with time of death, with the crime. And at Terre Haute, after executions, the press is invited back to this sort of schoolhouse-looking building, where there’s a literal stage with an actual podium and microphone so that the victim’s family can show media, like, photographs to the press and take questions from the press. So this is something we do so people can see it. It’s not something we do because there is just this cosmic ledger that gets out of whack when someone kills another person. Right? Because if that were the case, then no one would ever need to know about it. And I realize that that is distinct from perhaps what is being pursued at the highest level with capital punishment, but that is, in fact, what we gain. And so it is, at the end of the day, an indulgence that we grant to ourselves. So in my point of view, the libidinal impulses that are being indulged there are not good ones, and it’s better not to cultivate those tendencies.
jane coaston
That’s a fascinating point about how much of this. You see occasionally outside prisons when executions are going to take place that there are both protesters and people who are cheering, with signs saying like burn, baby, burn. And so that is the challenge here, is that while we may be having these high-minded understandings of the pursuit of justice, what’s actually happening here is watching someone die and then giving press releases about it.
david french
Yeah. I think everything that Elizabeth just described were the vengeance aspects that we talked about earlier, in that you’re talking about taking pleasure in another person’s death, you’re talking about taking pleasure in somebody’s suffering, all of these quests —
jane coaston
But is there any way to get away from that? The zenith of a just death penalty and the death penalty that the United States has, or virtually any country that still has the death penalty has, appears to be a wide gap between those two.
david french
Oh, yeah, absolutely. One of the reasons why we have that gap is, in part, because of the way in which the United States of America has, for a very long time, scaled up the death penalty and systematized it and made it an aspect of a very flawed criminal justice system. I don’t think there’s any question that, if you look at the history of capital punishment in the U.S., if you look at the history of capital punishment in a number of societies, that even if the people who are imposing the punishment are doing so when the punishment is just and the process is just, there are people who will perceive the process through the prism of vengeance. And I agree, I think that’s inescapable. I think that the other person’s perception of the process is vengeance, though, does not render the process inherently unjust.
liz bruenig
Right. I mean, the justice is either going to be there or not, and we can’t verify that it is, on a number of levels, because, again, we don’t have access to that kind of moral information about the universe, and also because we can’t even know what events led to this particular criminal being executed or not. And that raises the question — about half of states that don’t have the federal death penalty, every time a criminal is convicted and sentenced to life in prison, is that creating injustice, if death would be the just response?
david french
Well, I would say we’ve got a real problem in a country that has a 14th Amendment that creates an equal protection of the law, in addition to a Fifth Amendment, which has a you can’t be deprived of life, liberty, or property without due process of law, but we also have a fundamental equal protection ethic and mandate within American constitutional law. And that’s one of my big problems with the death penalty as practiced. And I think that it is a bad idea to have a federalism of the Bill of Rights and a federalism of the Civil War amendments. And so I think that goes to the issue of how do we do this in the United States of America, where the accident of your geography, even if you don’t know where you can, be instrumental in life or death. It’s an unjust way in which we are trying to implement at scale this ultimate penalty.
liz bruenig
Right. And the victim profile versus the perpetrator profile also plays a huge role in whether or not a person is ultimately executed. And so it sort of raises the question, if a Black perpetrator kills a Black victim but the jury decides not to sentence them to death, is that actually unjust? In that case, why do we have juries doing the sentencing, if we know that the death penalty is literally the only just response to some crimes? Why isn’t it automatic? And I think that the fact that we actually do have all of those safeguards suggests that there’s a huge, huge amount of unease and uncertainty and randomness here, such that achieving justice is a laudable goal and it is one of the duties of the state, and ultimately, there are far reaches of human reason where we no longer are really capable of apprehending or analyzing the stuff we’re dealing with. [MUSIC PLAYING]
jane coaston
Normally, I ask you to tell me about your arguments. But this week, I want to know, is one of your favorite places in your country being affected by climate change? How do you feel seeing it reshaped by environmental issues? Describe that place, why you love it, and the change you’re seeing in a voicemail. We may include it in an upcoming series for Times Opinion. Our number is country code 1, 405-804-1422. I’m pretty clear as to where you both fall on the spectrum on the death penalty, but where do you think the country is going? Even the debate that we’re all having right now or the conversation we’re having right now happens internally for millions of Americans, where we have these moments in which we think about how we could do something else, and then there will be a case in which you think, but the thing I want to happen to this person is I want them to die.
david french
So the work of the Innocence Project I think has been incredibly illuminating to a lot of people, that in the discovery, which should have been known in the abstract, but to understand it in the concrete that there were innocent people on death row has shaken a lot of people. These kinds of things, what they do is they work on other people exactly the way they work on me. And by work, I mean impact. Even if I have a conceptual idea that the death penalty can be just, that the system through which it is being imposed, there’s something wrong with it. So that’s why, for example, you’ve had governors in states — I believe it was Oklahoma, correct me if I’m wrong, where there was a death penalty moratorium imposed after discovery of irregularities. So there are quite a few people in my camp, which is evangelical conservative, who, when exposed to these things in the practicality of the imposition of the death penalty in the United States, say I think we should put our foot on the brakes because I strongly disagree with this aspect or that aspect. And certainly, to the extent that you have actual innocence being revealed on death row, I think has caused a lot of people to question the system. And this is occurring at the same time that people are questioning mass incarceration, by the way. There’s an overall bipartisan rethink of our criminal justice system, away from the deterrence send-a-message model, and much more towards the what is just and right in a more holistic sense model. And I think that that is moving people on the death penalty, as well as a number of other issues.
liz bruenig
I’m heartened by that. I think David’s right. But the thing about the death penalty is it moves around. Support ticks up and down. Particular politicians can campaign on it. Trump sort of campaigned on it. He said at one point he was going to sign an executive order permitting or maybe mandating the death penalty for anyone who killed a police officer. He didn’t end up doing that, but particular politicians can start making these kinds of promises and highlight these kinds of capacities —
jane coaston
Right.
liz bruenig
— as long as the state —
jane coaston
Trump made that promise on the understanding people would want to hear it.
liz bruenig
People would want to hear it, would get excited about it. And especially now that so much of our politics is charged and primarily motivated with aggravating the perceived other side, so the goal is less to accomplish politically what you need to do, and more to own the libs or trigger the cons or whatever, because those impulses are so alive in our politics, the death penalty enters as this wedge that’s going to be extremely aggravating to one side or the other. And I think you can’t underestimate the role that played in these federal executions. And so as long as those impulses are alive and driving politics, I think you could see almost anything happen to public opinion of the death penalty. [MUSIC PLAYING]
jane coaston
Liz and David, thank you so much for talking about this tough topic and catechism and the Old Testament and scripture with me.
david french
Well, thanks so much for having me.
liz bruenig
Thank you so much. [MUSIC PLAYING]
jane coaston
