New York Law School crimlaw prof Robert Blecker wrote a book that apparently says we’ve become a society of wimps, afraid to punish the worst of the worst in the way “justice” demands. Naturally, that means he had to pen an op-ed about it for CNN.
No matter how vicious the crime, no matter how vile the criminal, some death penalty opponents feel certain that nobody can ever deserve to die — even if that person burned children alive, massacred a dozen strangers in a movie theater, or bombed the Boston Marathon. Other opponents admit the worst of the worst of the worst do deserve to die. They just distrust the government ever to get it right.
Not the best explanation of those who disagree with him, but serviceable in a shallow sort of way.
Let the punishment fit the crime. We’ve mouthed that credo for centuries, but do we really mean it? We retributivists who believe in justice would reward those who bring us pleasure, but punish severely those who sadistically or wantonly cause us pain. A basic retributive measure — like for like or giving a person a taste of his own medicine — satisfies our deepest instincts for justice.
Right to the point, Blecker contends that we humans have some burning desire, deep within us, to want those who inflict pain to suffer pain in return.
An unpleasant life in prison, a quick but painful death cannot erase the harm. But it can help restore a moral balance.
Whenever anyone uses a phrase like “moral balance,” I feel a sudden urge to check his religious dipstick. Morality is a great argument in the sense that it can’t be subject to rational scrutiny because there is nothing rational about it. If that’s what a guy believes, then that’s what he believes. Just like Fred Phelps at the Westboro Baptist Church believes gays are immoral.
But Blecker leads no congregation of religious fanatics. He’s a law professor. As such, the minds of inchoate lawyers are left in his hands for a few hours each week, to be molded and shaped. Is he teaching criminal law to these impressionable law students based upon his personal moral imperatives?
Yet, Blecker’s next point, unfortunately based on his shaky foundation of natural instincts and moral balance, raises a better question:
I, too, oppose lethal injection, but not because these untried new drugs might arbitrarily cause pain, but because they certainly cause confusion.
Lethal injection conflates punishment with medicine.
It’s sanitary. It’s painless. It’s better than anyone being executed deserves. That’s Blecker’s objection. But as he notes, the same issues he raises resonate with those who take the complete opposite view.
For those of us who pay attention to such matters and people being executed as a punishment for their crimes, the question isn’t merely do they deserve to die or not. We see the broader, deeper concerns of society doubling down on death, one evil compounded by a second evil.
We see a deeply flawed system that can, and has, executed the innocent, and a court of last resort that is too busy trying to play computer games to concern itself. We see no foolproof way to distinguish between those who Blecker contends deserve to die an awful and painful death from those who don’t, and unlike Blecker, we’re not okay with that.
And some of us don’t really have that deep yearning to inflict pain on others, despite Blecker’s personal view that it’s a basic human instinct. How this didn’t get Blecker a picture in the DSM-V and a blurb all to himself remains a mystery.
But it’s made me consider whether the issue would be best brought to a head by putting executions on the television, prime-time, hosted by someone who used to be on MTV, so that all the agnostics who are kinda for it without having to give themselves headaches by thinking too hard can watch it in high-definition.
But if the show was just death by lethal injection, then Blecker’s complaint, that it’s too much like medicine, would indeed cause confusion. Teenage girls wouldn’t know whether they tuned into a good killing or Grey’s Anatomy, and could change channels if they didn’t see Dr. McSteamy.
There is some merit to the argument that, if you’re going to execute a person because he has done something so horrible, so vile, that he deserves to die, then he deserves to die in an awful manner. What’s the point of retribution if it doesn’t hurt? It’s all about payback, and the release of the worst of human instinct. Who better to inflict pain upon than someone we can all agree is so utterly vile by his own hand?
But Blecker thinks this will be embraced by people, cheered by adoring fans who will make American Execution top-rated in its time period.
Rest assured, when we can only achieve justice by killing a vicious killer, We, the People will find a constitutional way to do it.
I think better of us. Of course, it would break my heart to find out that Blecker was right. And I’m not 100% certain that we would be so disgusted, so repulsed, by watching a vicious, violent execution that we would end the evil we perpetrate as a society on the worst of our own.