-Christmas Eve, 2003
The biggest news these days is the capture of Saddam Hussein, but for people in the Washington DC area, the trials of John Allen Muhammad and Lee Boyd Malvo -- the infamous Washington area snipers -- are close behind. Saddam hasn't been tried yet, but when he is, it seems inevitable that he'll be found guilty of crimes we'd rather not have to think about. Muhammad and Malvo have now been convicted. Their crimes pale in comparison Saddam's, but people who lived near Washington in the fall of 2002 know what the word "terrorized" means.
The jury decided that Muhammad should be put to death. In Malvo's case, a different jury opted for life in prison.
The cases are different. Muhammad is an adult who seems clearly to have known what he was doing. Malvo is an adolescent who may have had some bad tendencies but who also had an incredible piece of bad moral luck: coming under the sway of his mentor John Allen Muhammad. How much does this difference matter?
If we act badly, we can lose some of our rights. That's something any system of criminal punishment has to assume. If we can lose the rights to liberty and property, why not the right to life?
Even though the 18th century German philosopher Immanuel Kant was a strong advocate of capital punishment, his discussion offers the seeds of a reply. Kant argues that every convicted murderer should be executed, but adds: "His death... must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable."
On the simplest level, this means that torturing a murderer to death is wrong -- even if the murderer was a torturer himself. If you agree, you've admitted that there are limits to the "eye for an eye" principle, but what's the underpinning of those limits?
Kant's larger idea is that no matter who we're dealing with -- even vicious criminals -- we should always respect their humanity. Oddly enough, this means that not punishing someone can fall below the mark. It does this by not treating the criminal as responsible. Not treating someone as responsible when they really are is a way of not respecting what makes them human.
If not punishing can be one way to ignore someone's humanity, cruelty is another. Torture is the very paradigm of not respecting someone's humanity. But that opens room for a wedge: if we strike against a person humanity by torturing them, could we somehow respect their humanity by killing them?
It's a tricky issue. Even opponents of capital punishment are likely to believe that it's okay to kill in self-defense. If that's consistent with respecting your attacker's humanity, then perhaps capital punishment for murderers is too. If it's not, then the reply might be so much the worse for the idea that we always have to respect everyone's humanity.
The case of Lee Boyd Malvo raises a different problem. The jury opted for life instead of death because they saw Malvo as not fully responsible, partly because at 17 (his age when he committed his crimes) he was less than fully formed. It sounds good in the abstract to say that we don't respect people when we don't hold them responsible, but the fact is that not everyone is as responsible as everyone else. Even people who approve of the death penalty for 16-year-olds aren't likely to think we should execute a 10-year-old who stalks his playground enemy and shoots him with his father's gun.
The argument could take a bad turn here. We might start asking whether anyone is ever truly responsible for anything. That seems to imply that we shouldn't punish anybody, and this is a conclusion that few of us are willing to accept. However, when it comes to the ultimate punishment, many of us think that questions of diminished responsibility are especially important. And a very worrisome thing about the American death penalty system is that it ends up putting people to death who seem damaged by any reasonable measure: low IQ, abusive childhood, mental illness, severe impulse control problems caused by neurological defects -- we've executed any number of offenders who fit one or even all of these descriptions.
What's disturbing is how bad our system seems to be at giving these sorts of facts their proper due. The history of capital punishment doesn't give me much confidence that we'll apply the resources and the wisdom to strike the right balance between the demands of justice and what a proper, clear-eyed mercy requires. That suggests that capital punishment will continue to extract a high moral cost -- even if everyone we execute actually did what he or she is accused of. Perhaps there's enough of a benefit to offset this cost, but I'm still waiting to be convinced.