Last week, U.S. Attorney General Merrick Garland released a memorandum that called for a systematic review of policies and procedures related to capital punishment. Along with ordering the review, he reinstated the long-standing moratorium on federal executions that former Attorney General William Barr had ended. Garland cited a commitment to “fairness and humane treatment in the administration of existing federal laws governing capital cases” and a worry about recent policies’ “consistenc[y] with the principles articulated.” But, while Garland’s office plays a strong card both in its explicit dedication to a policy reread and its action to halt federal executions pending such a review, a further question arises from the wording of his memo. Is such a thing as humane execution even possible if the justice system acknowledges its own limits and fallibility?
Currently, 27 states still practice some form of capital punishment, and it is legal at the federal level (despite frequent and often long-standing blocks by the Department of Justice). Though the Eighth Amendment bars the use of “cruel and unusual punishment” for a crime, the Supreme Court ruled that executions are in fact not “invariably” in violation of the Eighth. The debate has blazed on regardless, as people wonder whether or not they want their government to have the power to execute when they see fit. While states have practiced executions since the inception of our nation and before, their use in relation to federal crimes only began with the Anti-Drug Abuse Act of 1988. Since then, there have been 15 congressional attempts to abolish the federal death penalty, none of which have gotten far off the ground. States have debated amongs themselves whether or not they should implement it.
Responses to calls for abolition have been so weak that one almost becomes suspicious of their proponents. Popular responses include: a) that it costs more to house inmates for life than to execute them, b) that it deters the type of horrible and violent crimes that it is used to punish, c) that it is the only way to truly stop such a criminal from committing future acts of violence, and finally d) that it is the only just response to such violent crimes. The first two of these have been proven categorically false or causally vague (that is, it’s nearly impossible to tell whether or not implementation of the death penalty is a cause of lower rates of violent crime), and the third is counterintuitive; are death row inmates in maximum security categorically and uniquely more dangerous to society than other inmates convicted of similar crimes? Are there no solutions to such a finding other than killing them? The fourth response merits a little more attention.
Many like to think of the justice system’s role as deciding the correct penance for those convicted of crimes. The very notion of “justice” invokes the idea of punishment in response to transgression; paying back a debt to society with your own time or resources. Working from this conception of justice, many have determined that those who are found to have committed some of the most heinous acts conceivable deserve, in full retributive manner, death. I have no critique of this; maybe they do “deserve” death. The eye-for-an-eye perspective is simple but intuitive, and is sometimes a completely understandable first reaction to a crime.
However, it is important to never forget what the government, and especially the justice system, is. For all the incredible thought, all of the honest and earnest work and scholarship, all of the time spent creating a rulebook by which we govern our society, we must always remember that it was created and executed by humans. The justice system is an imperfect one, and it is so precisely because its motor continues to be us. Well-meaning but imperfect, irrational, us.
Humans have an occasional tendency to be unreasonable, to make the wrong decisions based on everything from misunderstandings of facts to cognitive biases that we ourselves are blind to. There are entire fields of research dedicated to human decision making in all its complexities. When emotions and passions come into play, our irrationality multiplies, making our decisions even less grounded in reality.
This vulnerability to irrationality is endemic to all human decisions. The problem I am describing is then relevant to all actions within the justice system. But that does not mean that a well-designed system, one with dedicated and open-minded practitioners, cannot overcome many of these human errors when they arise. Examples of such checks of irrationality are pardons, exonerations, and retrials, as they admit potential mistakes made by anyone through the course of the process. Although mistakes occur, we have ways to correct or reverse most of them when they do.
And so comes my distaste for capital punishment at any level. Imagine staring a convicted, cold-blooded murderer in the face and feeling not a shred of emotion. Emotion that clouds judgment, that gets in the way of rational thinking. The death penalty allows no room for irrationality in precisely the cases that most influence our passions. If this occurs at any point in the process that leads to one’s death, there is no way to correct the mistake. There are no true exonerations for the dead, there is no bringing back the innocent or undeserving that have died after a stay on death row. Regardless, we continue to argue about whether capital punishment is useful, ethical, or practical. But how often do we consider that we are making permanent, life-ending decisions with compromised methods?
I hope that this administration continues to take these questions seriously, and that we continue moving toward a justice system that recognizes its weak spots and adds checks to mitigate them. Merrick Garland and his office took a great first step, and there are more to take for the president, followed by the states. It is incumbent on those in power, those who answer questions of freedom and decide futures, to exercise humility; humility to recognize not only potential faults, but shortcomings, the limits of a human system’s capabilities. The justice system, written and acted upon by humans, was never going to be able to solve the issue of our own vulnerability to unreasonableness. Therefore, when deciding whether or not such a human system should be able to deal in death, it is better to err on the side of caution and say “no.”
