Scott Hanson at Grits for Breakfast, reacting to a local Texas prosecutor’s blawg inquiry at Harris County Criminal Justice Center, asks the question, which is worse, the death penalty or life without parole.  Scott tries to stir things up a bit by suggesting that death may not be worse, should there be an afterlife.  After all, Scott writes, “But death is also a sentence to which we’re all condemned – everyone’s entry card to the human condition bears an unknowable expiration date – which makes it at once as un-extraordinary as it is exceptional.”

Some commenters took Scott to task for stretching quite so far to find a rationale, but I suspect that Scott was trying to expand the inquiry far enough to get people to do something novel.  Think.  Playing devil’s advocates is a time-honored means of asking people to go beyond their knee-jerk reaction.  I think Scott’s effort here was well placed, even if his argument was a little fuzzy.  Most of us would answer this question on autopilot if no one pushed us any harder.

I would have been one of the mindless had I not had an experience a few years ago that tested my assumptions.  I’ve mentioned it in past posts, so regular readers will note its familiarity.  I was half of a contingent meeting with a judge from Mainland China. My bookend was Larry Goldman, former president of the National Association of Criminal Defense Lawyers and sophisticated New York bon vivant.

Eventually, discussion turned to China’s execution of prisoners, enough to make a Texan blush.  Bearing in mind that China (pre-quake) had far more people than it could handle, I anticipated that the judge would view life as a rather expendable commodity, and justify the imposition of the death penalty as being a fairly mundane sanction, where a billion fewer people would not be noticed.

The judge did not.  Not at all.  He was quite serious in explaining that he believed that death was a kinder outcome to the defendant than life in a Chinese prison without parole.  In fact, he was critical of our view that putting a human being in prison for the rest of his life like a caged animal was less cruel. 

The picture he painted (mind you, he was talking about Chinese prisons, not American) was of a slow, lingering death of 20 to 50 years, maybe even longer, making it sound like a means of horrible torture.  Death by a thousand days, rather than swift and painless not too painful.  He could not understand why we would think the suffering of life in prison was of a lesser quality than execution.

Larry immediately chimed in that he agreed, making a point of noting that I would no doubt disagree with him as well as the Chinese judge.  Larry stated that if faced with the choice of spending the rest of his life locked in a prison cell with no hope of ever walking free, he too would prefer death. 

Trying to be my normal, friendly, amendable self, I told Larry that his assumption about my views was misplaced.  If he was faced with the choice of death or life in prison, I would absolutely support his desire for immediate death.  I got him good. 

But the truth is that I realized that the agony of a life in prison without parole may be seen by some as more harsh than death.  Whether cultural, religious or pragmatic, the visceral reaction that death is always worse may not hold true for everyone. 

In an absolute sense, I still believe that death is the most severe punishment.  It is irrevocable.  There can be no change in the law that allows subsequent release.  There can be no change in treatment that enables a person once deemed incorrigible to be freed.  There can be no scientific breakthrough that proves a person innocent when once thought guilty.  Death is the end of the road, and there’s no going back.

And, as Scott contends, life leads to death for all of us, the only variable being time.  Some are fatalists, and decide that their time is up.  Some would find life in a cell too torturous to withstand.  Some would just be unable to live without hope, and find comfort in certainty.  I can see now, after the Chinese judge, that choices can reasonably differ, even if my choice would not.

Still, we need to decide as a society which punishment is most severe so that our hierarchy of punishments is clear.  The vast majority would view the death penalty as the worst we can do to one another, and it’s place as the ultimate sanction is secure. 

But it’s worth asking the question, and revisiting our answer every once in a while.  And it’s important to realize that there will comes times that a defendant would prefer death rather than life without parole.  It may not be the choice we would make, but it’s not outside the pale.  Just ask the Chinese judge.