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How to Execute Executions

black and white photograph of prisoners preparing for guillotine

On January 25th, 2024, the state of Alabama executed convicted murderer Kenneth Eugene Smith, who, in 1989, killed Elizabeth Sennett in a murder-for-hire. Unlike more commonplace or recognizable forms of capital punishment like hanging, the electric chair, or lethal injection, Smith was killed by asphyxiation. More precisely, once in the execution chamber, he was strapped to a gurney, masked, and was then fed pure nitrogen gas until dead. The use of nitrogen as a method of execution has never been used in the United States before and has caused significant consternation.

Officials predicted a quick and painless death; Smith took over 22 minutes to die, during which he gasped and convulsed. Smith’s religious adviser, Reverend Jeff Hood, who was present at the execution, said:

… we didn’t see someone go unconscious in thirty seconds. What we saw was minutes of somebody struggling for their life. We saw minutes of someone heaving back and forth. We saw spit. We saw all sorts of stuff from his mouth develop on his mask. We saw this mask tied to the gurney and him ripping his head forward over and over and over again. And we also saw correctional officials in the room, who were visibly surprised, at how bad this thing went.

The debate about whether the death penalty is justifiable is an age-old one. Proponents claim that it works as a deterrent and provides an avenue of societal retribution, while opponents argue that we risk executing the innocent and that it’s applied arbitrarily. And, while such a debate is always worth having (we’re talking about the state freely killing its citizens, after all), that isn’t what I want to explore here (but, for transparency, I fervently oppose the death penalty). Instead, I want to question, if such executions must happen, does it make a difference in what way they are done? In other words, is how one is executed a moral matter?

One intrinsic aspect of execution that undoubtedly makes the method via which it happens ethically important is the suffering involved. If process A results in an instantaneous death while method B causes hours of agony, then this is something which is a significant moral matter as we’re interested in suffering.

This does not immediately mean, however, that the latter form of execution is undeniably unethical. It could be that the very fact that it causes immeasurable pain makes it the superior option, as that painful quality is what is desired or even necessary. For example, suppose one thinks that the mere threat of execution is an insufficient deterrent to prevent the worst crimes society has to offer. In that case, one might be convinced that painfully executing criminals is the preferable option. That, between a choice of painless or painful execution, the former is ineffective, so the latter becomes pragmatically, and thus ethically, justified.

If I might, however, I would like to park this aspect of the discussion. What I want to explore is not whether pain’s presence or absence makes a method of execution ethically (un)justifiable, as this focuses on pain itself. Rather, I want to stick with the execution method. So, for the sake of argument, let’s go forward on the premise that the executions under question cause an equivalent degree of suffering – be that lots or little.

So, if it is not pain that matters here, what else could it be? Well, I think something should be said about each method’s symbolism. That is, what each way of executing says about the society in which such state-sanctioned killing is conducted and how that community views the value of life and the transition into death. To illustrate this point, let’s compare two forms of execution that have been used over history: hanging and lethal injection.

Hanging has been, historically, at least, a public affair. Or, to put it more accurately, it has not been a method of killing that was seen as inherently private. Watching people die at the end of a rope has been used as a critical form of deterrent for centuries – be that during America’s expansion into the West or during the Salem Witch Trials. It was a visual form of punishment which was meant as much for those in attendance as it was for the poor soul being killed. It was a method of state-sanctioned killing that, I would argue, disregarded the value of the individual. Upon being sentenced (if such a formal process even occurred), it turned them from a member of a society – with an internal world and rights and duties – to a tool via which the desired norms of that time could be reinforced. Put simply, they went from being a person to being an example. Execution wasn’t something to be ashamed of; the only shame was being the one executed.

Fast-forward to today, and the most common method of execution, at least in the U.S., is lethal injection. The process in which this is done, however, stands in stark contrast to that of hanging, with obscurity built into the very way it is conducted. Indeed, those responsible for killing the person are typically unaware they are responsible, as they sit separate from the execution chamber itself and work in conjunction with other executioners who are also in the dark. There is also a limited number of individuals present at the execution. While this varies according to jurisdiction, it usually features those close to the victim, those close to the convicted, a religious representative, a lawyer, and prison staff. Unlike hanging, it is typically a solemn, private affair (despite the media attention they often receive).

This change in method, from a public spectacle to a clinical activity, reveals something interesting about capital punishment’s societal placing. It is no longer something to be showcased or proud of. Instead, it is (considered by some) an instrument of justice required to ensure that society is protected from the worst parts of itself. It is more of an administrative activity that, despite some vocal advocacy, seems to carry a sense of shame.

I think this change – from skeptical to duty, from event to task – indicates something different about the methods of execution. The publicity of hanging erodes the individual’s worth and turns them into a tool for reinforcing state (or whichever sovereign at that point) power. The comparatively private nature of today’s executions has a seemingly lesser effect.

Now, there is certainly a point at which trying to differentiate the methods of execution, perhaps even grade them, becomes pointless. Looking for ethical distinctions between using nitrogen and argon to execute prisoners is an exercise in futility. It makes no difference to those in attendance, those reporting on it, and most certainly to the person dying. And I want to reiterate, I think capital punishment is always unjustified (and I may write another piece about why).

Yet, it does seem to me, for reasons that I am yet to grasp fully – although I have tried a little here – that different execution methods are ethically distinct beyond simple comparisons of how much suffering they may or may not cause. That, when it comes to the state exercising its ultimate punishment, how one dies is important and needs discussing.

 

P.S. On a personal note, I’ve stood inside Texas’ execution chamber, and it is one of the worst places I’ve ever been.

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Running A-Fowl of the Law: On Presidential Turkey Pardons

photograph of turkey at White House pardoning event

Among the President of the United States’s powers is the pardon, the “unlimited” ability to grant clemency for federal criminal offenses. This clemency can take two forms. First, a commutation or reduction of the punishment for one convicted of a federal crime. Second, forgiveness of transgressions. This eliminates the punishment that has or would have been assigned for an offense. When someone refers to a “pardon” they typically mean the latter form of clemency. According to U.S. case law as of Burdick v. United States, accepting a pardon is an admission of guilt for one’s offenses, hence why pardons differ from immunity. Typically, at least in recent administrations, presidents utilize the pardoning power near the end of their term – 84% of Donald Trump’s, 61% of Barack Obama’s, 56% of Bill Clinton’s and 49% of George H.W. Bush’s pardons came during their final year of office.

However, there is one pardon which now occurs annually. Throughout the history of the United States, presidents often received turkeys as gifts. Usually, these birds were slaughtered and eaten with holiday dinners. The first to spare one was Abraham Lincoln at the insistence of his son Thomas or “Tad.” This turkey gifting evolved into the “National Thanksgiving Turkey Presentation” during Harry Truman’s administration. Occasionally, presidents would spare the turkeys presented to them, either returning them to the farm or sending them to a zoo. However, beginning with George H.W. Bush in 1989, the ceremony evolved to include the president pardoning the gift turkeys, sparing them from serving as Thanksgiving dinner. At the time of my writing on the afternoon of November 20th, President Joe Biden pardoned the turkeys Liberty and Bell just a few hours ago.

Obviously, the ceremony is for fun. Presidents regularly use the occasion to make (groan-inducing) jokes to the press. For instance, in 2022 following better than anticipated mid-term elections for the Democrats, Biden’s quips included remarks that the ballot boxes were not “stuffed,” that there was no “fowl play” and the only “red wave” would be if his dog knocked over the cranberry sauce.

But ceremonies, even when unserious, often reveal something about our underlying attitudes and beliefs. The traditional presidential turkey pardon, for instance, may be working to assuage some tense feelings about our nonchalance in making a cooked bird the centerpiece of our holiday gatherings. Sure, about 45 million turkeys are killed each year to produce Thanksgiving dinner, but at least these two turkeys aren’t!

Given the evolution of the presidential turkey pardon, it might be worth investigating what else could be going on here. What other symbolism is behind this act? Recall that accepting a pardon, at least according to current case law in the United States, is an admission of guilt. So, by extending pardons to turkeys each year, the sitting president seems to imply that the birds have committed some kind of offense. Further still, the apparent punishment for this crime is death, given that turkeys pardoned each year are spared from slaughter.

What exactly is the offense for which the birds are being pardoned? Well, the pardon is just a ceremony – there is no paperwork and it does not count in the tally of a president’s pardons. So, we should not search through U.S. code to find the precise law that turkeys violate each year. Further, the turkeys are not wrong-doers in the same way that human offenders are.

Perhaps we can clarify something about the “offense” by considering how the pardoned turkeys are selected. The turkeys typically come from the farm of the current chairperson of the National Turkey Federation. In this case, The Philadelphia Inquirer reports that Liberty and Bell were chosen due to their extroverted nature. Thus, it seems somewhat arbitrary which turkeys get selected – there is a dash of practical consideration but it is otherwise essentially random. So, it appears that whatever “offense” the pardoned turkeys commit must be one that all members of the species share.

Notice, further, what the use of the term pardon implies about the turkeys given to the president during the National Thanksgiving Turkey Presentation. When pardoned the turkeys are spared from slaughter. Thus, death seems to be a punishment according to the pretense of the ceremony. But why is execution an appropriate response to whatever offense that all domestic turkeys commit? And, further, what is gained by pardoning some of the turkeys?

To answer this question, we must consider some potential ways of justifying punishment. Presumably, a pardon is justified in cases where the justification of punishment does not hold. Some justifications of punishment are consequentialist in nature. They look forward and assess what will happen if punishment occurs. The idea being that, if it produces better consequences in the future, then punishment is appropriate. By contrast, a pardon would be justified when it would produce better consequences.

For instance, consider Gerald Ford’s pardon of Richard Nixon in the Watergate scandal. When delivering his decision to the nation, Ford explained that he felt it would significantly damage the nation to witness what would certainly be a long and rigorously reported prosecution of a former president, stating that “My concern is the immediate future of this great country.” Thus, on Ford’s rationale, a pardon was justified because punishment in this case would produce worse consequences.

What follows if we accept turkey pardons on consequentialist grounds? Well, it implies that it is better, all things considered, that these particular turkeys are not slaughtered. Recall that the selection of turkeys pardoned is effectively random. Thus, the consequentialist justification of presidential turkey pardons seems to imply that, for any given domestic turkey, it would be better all things considered to spare that turkey from slaughter. But if we accept this justification of the presidential turkey pardon, then Thanksgiving, for most, is in moral peril – the process required to produce the centerpiece of their meal, all things considered, produces worse outcomes.

However, punishments may also be justified on retributivist grounds. Retributivist justifications of punishment instead look backwards at the past behavior to assess the appropriateness of punishment. Typically, retributivists believe that punishment is justified when it is a matter of desert, in other words, that the offender deserves to be punished. So, on this justification of punishment, a pardon is appropriate when our treatment of the offender fails to fit the crime.

Suppose we accept the retributivist justification of a pardon in the case of turkeys. What does this reveal? Well, recall again that the turkeys punished are selected on an arbitrary basis. The only factors in play are the appearance, temperament, and home farm of the turkeys. None seems like a morally relevant factor when determining if an individual deserves punishment. Thus, much like with the consequentialist judgment, the pardoned turkeys are as good as any other turkey in terms of desert; if they do not deserve the punishment of death, as per their pardoning, then seemingly no other turkey deserves it either.

Ultimately, analysis of the turkey pardons leaves the traditional Thanksgiving dinner in an uncomfortable position. According to the inner logic of pardoning, it appears that the slaughter of any particular turkey is unjustified. If sparing Liberty and Bell produces better consequences or avoids an unjust desert, then it seems this reasoning should hold true for every turkey – what’s good for the two is good for the 45 million.

Of course, one might charge that I’ve taken this ceremony far too seriously. It’s just some quirky fun to kick off the holiday season! The president is not actually pardoning a turkey, and to analyze the situation as though they were misconstrues what’s really happening.

But even unserious ceremonies – especially those which occur annually in the full view of a nation – deserve analysis. Presidents did not always spare their gift turkey, nor was the act always ceremonial, nor was the act always framed as a pardon. The increasing spectacle, coverage, and linking of this observance to the powers of the office of the president invites us to seriously consider the message it sends, lest we uphold traditions that send the wrong message.

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Death Row Inmates, Execution, and Choice

photograph of drug vials and vintage syringe

On October 28th, 2021, the state of Oklahoma executed John Marion Grant. This was the first execution the state had carried out for six years, after placing a moratorium on executions following a case where a prisoner was given the wrong drugs (and another prisoner narrowly escaped the same fate). The drug of choice in nearly all modern federal executions had, until that point, been sodium thiopental. But issues with batch contamination shut down the sole factory producing and supplying it to prisons. Additionally, shortly after discovering a therapeutic alternative to sodium thiopental — pentobarbital — the drug company’s CEO imposed distribution restrictions on the product, prohibiting prisons from buying it.

Since then, most states have lost access to their first and second execution drug of choice, nearly slowing federal executions to a stop. In the last couple years, states have managed to re-access both sodium thiopental and pentobarbital, but the humaneness — and, therefore, constitutionality — of their use remain a matter of dispute, with several lawsuits across many states protesting their use in federal executions. Prisoners and their lawyers frequently use these lawsuits to try to achieve stays of execution. After all, if the jury is literally still out on whether a certain drug is a cruel and unusual means of execution, that seems a good reason to delay its use. However, since Justice Alito’s 2014 Supreme Court opinion arguing that “because capital punishment is constitutional, there must be a constitutional means of carrying it out,” states have been forced to come up with some way to perform executions. Oklahoma devised a compromise: take all of the contested methods of execution, and let the prisoners choose their preferred method.

There was a further deceptive aspect of the choice prisoners were given: several of the execution methods had active lawsuits against them. Therefore, if a prisoner chooses one of those drugs, their execution is put on hold indefinitely, at least until the lawsuit is resolved. The prisoners could choose between several different methods: pentobarbitol, sodium thiopental, non-FDA approved compounded versions of either of the first two drugs, firing squad, or a three-injection method that utilized a benzodiazepine, a paralytic, and potassium chloride to end lives.

But there were some prisoners who believed that selecting the method of their execution would be akin to participating in their own death (i.e., suicide). John Marion Grant was one of those prisoners.

Grant’s refusal to choose an execution method, on the grounds that it violated his deeply-held beliefs that this act would be morally wrong, meant that he was, by default, given the three-injection drug execution – a method not without controversy, given that dosing for these drugs represents a sort of guessing game. That is: nobody really knows how much of each drug any particular inmate will require for complete sedation, so they tend to give prisoners massive amounts rather than risk not giving them enough. Grant’s execution did not, however, go as planned. The aftermath of the injections saw him gagging, convulsing, and vomiting for at least 12 minutes before he was officially declared dead. In an op-ed for The Atlantic, Elizabeth Bruenig characterized Oklahoma’s ruling in the following headline: “Oklahoma Tortured John Grant to Death Because He Wouldn’t Commit Suicide.”

But is this a fair characterization of Oklahoma’s law? Is allowing inmates to choose their preferred method of execution really on a par with forcing them to commit suicide? Initially, the answer seems to be no. Merely having some active role in your own execution is surely not sufficient to render one’s actions “suicidal.” As far as John Marion Grant knew, he was going to die no matter what. All the state was offering him was a chance to choose what he would experience in his final moments.

But rhetoric aside, we may still wonder whether having prisoners take this active role presents an ethical problem. Elizabeth Anderson, in her Tanner Lectures entitled “Private Government,” argues that there are many instances in which a choice only superficially increases someone’s autonomy. She uses the example of laws regarding marriage, specifically the changes in the law when divorce became legal. This newly granted “freedom” of entry into (and exit from) a marriage which, on its surface, appeared to grant more autonomy to women within marriage, actually did the opposite. Because women still lost all property rights upon entering into a marriage contract with their husband, choosing to divorce would, for most women, result in almost certain destitution. It was an “option” that was not really an option at all. Such a choice did little to help improve the overall situation for domestic women. Anderson argues that, “Consent to an option within a set cannot justify the option set itself.” That is, a woman who consents to stay in the marriage, because her other option is homelessness, does not, by that acquiescence, justify the situation. Similarly, one might argue that the Oklahoma law only gives a superficial appearance of prisoner choice and autonomy, and does nothing to make the bare set of execution options permissible.

From a consequentialist perspective, however, an argument could be made that allowing prisoners to choose their method of executions maximizes net good. One may argue that this choice improves the lives of prisoners by alleviating some anxiety they may have otherwise experienced in the lead-up to execution, and that it does this without making anyone else worse-off. For example, if a prisoner had a particular fear of sodium thiopental, they may be relieved to have the option to avoid the drug entirely. Of course, this net gain in utility is not a guarantee — choosing their means of death could exacerbate the anxieties of the prisoner, allowing them to imagine their death in vivid detail in the days before their execution. It may also, as in the case of John Marion Grant, weigh on their conscience as a morally impermissible act of self-harm.

From a Kantian perspective, there may be entirely different reasons to avoid offering this choice to inmates. Kant’s theory of punishment is commonly held to involve a view of justice as primarily retributive — that is, justice is realized when people are rewarded for doing good, and punished for doing bad. Kantian retributivists like the philosopher Igor Primoratz hold that the punishment has to fit the crime in order of magnitude. A crime of murder, therefore, requires for justice that the murderer’s life be taken. The longer we wait to end the life of the murderer, the longer justice waits to be served.

One can, then, imagine a retributivist objection to the Oklahoma law on the grounds that it sometimes results in unnecessary stays of execution. Additionally, one could argue that granting this autonomy of choice to people who are charged with brutally taking innocent lives renders their punishment too light to actually serve justice. After all, the murder victims certainly were not allowed to choose their own means of death.

And so, it seems that, from all normative perspectives, the Oklahoma law regarding choice of means of execution appears morally questionable, at best. We can hope that the law will be replaced with one that is more just — whatever that may look like.

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Implications of Exonerations

black-and-white photograph of empty jail cell

I expect that in the near future we will know, for certain, that at least one innocent person has been executed in the United States. This should not come as a surprise. There have been many cases where those on death row are found to be innocent; indeed by some estimates more than 4% of death row inmates may be innocent. One major reason we have not previously proven someone’s innocence is that there is rarely the political will to continue investigating post execution.

What I want to investigate in this piece is what this should mean for the use of the death penalty. The BBC, in its Ethics Guides, notes that the “most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system.” But just how cogent an argument is this?

Let me lay my own cards on the table; I am emphatically anti-death penalty. I think the unnecessary killing of any human being is monstrous, and that the state may only use lethal force when combating an active threat, not as punishment for a past threat. However, I would hold this view even if there was no chance of an innocent person ever being executed; my objection is grounded in an invariant pro-life commitment. Thus, I think I am particularly well placed to assess the ethics of this question. I’m not in favor of capital punishment, and so am not looking for any rationalization to dismiss the argument from innocent execution; but nor do I feel a rationalizing compulsion to think the argument works — my own commitments would persist regardless. Of course, this all may just be a second-order rationalization about my own objectivity, but I’ll put aside worries about meta-level rationalizations for another post.

So here is a simple argument from the possibility of executing the innocent to the wrongness of the death penalty:

  1. If we use the death penalty, eventually an innocent person will be killed. (innocence premise)
  2. Executing the innocent is always morally wrong, no matter how good the consequences. (absolutism premise)
  3. Therefore, if we use the death penalty, we will eventually do something wrong that cannot be justified by the goods of executing the guilty.

Now, there is a certain intuitive plausibility to this argument. Suppose I thought that the death penalty has a strong deterrent effect, and so executing the guilty would save many lives (see this article for a defense of this argument; note there have been, as far as I can tell, several persuasive replies); I still would not think it is permissible to frame an innocent person and execute them to get that same deterrent effect. Thus, it is wrong to kill the innocent, even to bring about the valuable execution of the guilty.

The problem with this argument, is that, by parity, it seems to suggest we should never punish anyone:

  1. If we imprison people, eventually an innocent person will be imprisoned. (innocence premise)
  2. Imprisoning the innocent is always morally wrong, no matter how good the consequences. (absolutism premise)
  3. Therefore, if we imprison people, we will eventually do something wrong that cannot be justified by the goods of imprisoning the guilty.

This argument, as far as I can tell, has the same surface level plausibility as the previous one. If I knew the only way to capture a murderer was to, for some reason, imprison an innocent person for life, it would not be permissible to imprison that person.

So what has gone wrong with these two arguments? I think it is that there is a difference between killing or imprisoning the innocent as an intended means to punishing others, and foreseeing that the innocent may be killed or imprisoned as a consequence of a broader policy of punishment. While there may be an absolute prohibition on killing or imprisoning the innocent, that does not mean there is a prohibition on anything that could lead to that as a result.

To articulate the innocence argument against the death penalty, one needs to show that a) the fact an innocent person will be killed means we cannot use the death penalty, and b) the fact an innocent person will be punished does not mean we cannot use any schema of punishment (since I assume few people would accept that the inevitable punishment of the innocent means all punishment is unjust).

In fact, the problem for the innocent argument is even more profound. Remember that study I cited at the beginning, saying that as many as 4% of death row inmates are innocent? The way that study worked is that they compared the exoneration rate of those who stayed on death row (about 4%) to those who were shifted to life in prison. Because more scrutiny is given to death penalty cases (especially as the guilty approach execution), those who are actually to be executed (and not just on death row) are more likely to be exonerated. So, the study most commonly cited to support the claim that some innocent will be executed, actually shows that likely more innocent people would be punished if we switched from the death penalty to life in prison (since we are less likely to identify the innocent without the scrutiny provided to death penalty cases).

So, what can we point to in order to say that executing the innocent is uniquely bad — bad in a way that imprisoning the innocent is not?

Barbarity. Perhaps the thought is that the death penalty is, in some way, so much worse than life in person, that we cannot take any risk with the innocent being killed, even if we can take risks on an innocent person going to jail for life. But I’m not sure this is quite right. In other parts of life, we don’t treat risks of death as categorically worse than other risks. Anytime you drive a car there is a disturbingly high chance an innocent person might die (far more innocent people die in car accidents than are executed); but I don’t think we treat such risks as categorically distinct from other types of risks. You might, for instance, choose a small risk of death to avoid a much larger risk of having to spend the rest of your life locked in prison.

Irreversibility. The first thing we might suggest is that the death penalty is irreversible. If you kill someone you cannot bring them back to life, but if you imprison someone you can always let them go later. But it is not quite that simple. For one thing, you really cannot reverse a prison sentence. Even if you are eventually released, you do not get back those twenty years spent in prison. The punishment cannot be reversed, all we can really do is shorten it if we discover you are innocent.

Permanency. Is that the solution then? Is the reason the death penalty is so bad because it is permanent? Perhaps the thought is that if we cannot be certain someone is guilty, no permanent punishment is justified. But here, again, this does not seem quite right. After all, I still permanently lose my twenties and thirties to prison, even if I get released on my fortieth birthday.

And note too, the risk of permanence is not the same thing as permanence. Just because someone could be released does not mean they will. And we know that, since executions receive greater scrutiny, an innocent person is more likely to be sentenced to life in prison than sentenced to death.

Reparability. Perhaps it is not that the death penalty is permanent, but that it cannot be repaired. Sure, someone imprisoned till they are forty permanently, loses out on their thirties, but at least the state can do something to make it up to the person falsely imprisoned. For example, often those falsely imprisoned are given financial compensation from the state.

I actually find this argument somewhat convincing, but we have already seen that as a society we don’t accept the broader implication. After all, it is death, not execution, that is irreparable. But we have already seen that we don’t treat risks of death as categorically different from other types of serious risks. If car accidents just resulted in serious bodily injury, we could imagine making some reparation for such injury. Since they sometimes result in death, sometimes no such reparation is possible. But, again, it seems we don’t see that fact as particularly dispositive when assessing the ethics of driving.

It is a terrible and tragic thing to execute the innocent. But, I think, that is just a subset of the terrible and tragic thing that it is to punish the innocent. Perhaps we should strengthen our criminal standards for conviction (I’m quite sympathetic to that line of thought) so that fewer innocent people are punished. But I’m not sure. At the very least, if we accept as inevitable that the innocent will be punished it gives us a categorical reason to select some punishments over others.

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The BARD Standard and Justified Execution

photograph of symbol of law and justice in the empty courtroom

On June 15, 2020, the United States Department of Justice announced that it will resume executing criminals after a 17-year hiatus. Two weeks later, the Supreme Court declined to hear a challenge to the federal death penalty method, allowing the executions of four convicted child-murderers to go forward in July and August. On July 14, the first of those executions was carried out. Only three federal executions have taken place since the federal death penalty was reinstated in 1988.

Many critics of capital punishment argue that the death penalty is unjust given the glaring procedural problems with all modern justice systems, such as the disproportionate application of the penalty to minorities. This is a worthy argument, but it leaves open the possibility that capital punishment could be just within the context of some justice system. However, I would like to advance an argument that capital punishment is wrong not just in practice, but in principle: that is to say, even if the various elements of the justice system functioned perfectly, capital punishment would almost certainly lead to unacceptably unjust outcomes.

A cornerstone of the criminal justice system is the evidential standard used to determine legal guilt by a jury or judge; that standard is known as proof beyond a reasonable doubt (BARD). There is considerable debate about how to interpret this standard, but all agree that it does not mean proof beyond all doubt: jurors need not be objectively certain that the defendant is factually guilty given the evidence presented by the prosecution in order to find her legally guilty. As a result, a defendant can be found guilty BARD and yet be factually innocent. Thus, the “false positive,” in which juries find a factually innocent defendant legally guilty, is a possible outcome of any justice system that uses the proof BARD standard (or any standard short of certainty), no matter how well-designed or -executed.

How likely is a false positive when juries perfectly apply the proof BARD standard? There is no single accepted definition of proof BARD, but we can use the Eighth Circuit Court of Appeals’ model jury instruction as a representative example. The Court says that “proof beyond reasonable doubt…must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it.” In scientific fields that use statistics to study interactions among characteristics of populations, such as economics, social psychology, and sociology, researchers take themselves to have sufficient warrant to accept a hypothesis if, given the data, the probability of rejecting the null hypothesis even though it is true is 5% or less. The scientific method is often taken to be the gold standard of empirical inquiry, so ought we conclude that proof BARD is proof such that conditional on it, there is a probability of at most 5% that the defendant is innocent? Adopting this interpretation would entail that when applied perfectly, as many as 1 out of every 20 defendants found legally guilty will be factually innocent. Suppose we decrease the required significance level to 1%. On this standard, and again even assuming that everything goes perfectly, as many as 1 out of every 100 defendants found legally guilty will be factually innocent. To put these fractions into perspective, there have been 1518 executions in the United States since 1976.

An opponent of capital punishment can plausibly argue that the false positive rate of either interpretation of proof BARD makes the death penalty morally impermissible. The fundamental premise of the argument is, as a first pass, that it is wrong for the state to kill an innocent person because it harms her in the worst possible way, and can also seriously undermine confidence in the justice system. As we will see, this premise will require some qualification in response to objections, but the unqualified version will suffice as a start. If it is wrong for the state to kill an innocent person, and the justice system will produce false positives even if it functions perfectly, then in order to avoid wrongdoing the state must not use the death penalty.

An advocate of capital punishment might point out that we tolerate the same false positive risk when the possible punishment is less severe than death, such as life imprisonment without parole. However, one key difference is that any punishment other than death can be appealed and at least partly prevented, while death’s permanence is unique. Once an innocent person is executed, the harm done to them is complete and irremediable. By contrast, when an innocent person is wrongfully imprisoned, the harm done to them before they can successfully appeal may be only partial and can be compensated.

Another objection targets the argument’s fundamental premise, pointing out that it is inconsistent with our practice of empowering police officers to use lethal force against those who pose an imminent threat to others. Giving police this power obviously involves the risk that officers will kill or injure innocent people, mistakenly believing them to be threats. However, one plausible reply is that the imminent lethal harm that can be prevented through the police’s use of force on balance justifies the risk that police will kill or injure innocent people. By contrast, the harms of judicial killings of innocents are not counterbalanced in this way, since factually guilty defendants do not pose a lethal threat after they are apprehended and jailed.

It is important to be clear that this reply does not say that all police killings are justified. Rather, it says that if giving the police the right to use lethal force is justified under some circumstances, such as when the police reasonably believe that someone poses an imminent threat of lethal force against others, then some police killings of innocents are justifiable. Just as the BARD standard inevitably allows false positives, any standard for justified police force other than absolute prohibition could be satisfied by the police when they mistakenly use lethal force against innocents.

If we are to allow that the killing of innocents by police is sometimes justified, then the fundamental premise of the argument against capital punishment has to be qualified. The precise nature of the qualification will depend upon the standard for the use of lethal force by police that we choose to adopt, but it will be something like that it is wrong for state actors to kill innocent persons if those actors do not reasonably believe that they pose an imminent risk to others. With this qualified premise, the argument against the death penalty is as follows. Assuming that juries apply the BARD standard perfectly, there will almost certainly be cases in which innocent people are found guilty of capital crimes and executed. The state cannot reasonably believe that death row inmates pose an imminent risk to others. It is wrong for state actors to kill innocent persons if those actors do not reasonably believe that they pose an imminent risk to others. Therefore, it is wrong for the state to use the death penalty.

Finally, the advocate of capital punishment might suggest that in order to reduce the likelihood of error, death penalty cases ought to be tried by a special commission of highly qualified people instead of ordinary jurors. But this suggestion mistakes the nature of the argument advanced in this column. The argument is not that the death penalty is impermissible because ordinary jurors are likely to make mistakes in applying the BARD standard—although this might well be true—but that even if the BARD standard is applied perfectly, it still entails false positives. Given this, it is irrelevant whether death penalty cases are tried by judges, jurors, or other experts; as long as the BARD standard is used, false positives are almost certain to occur.

The U.S. justice system is riddled with procedural problems that may be sufficient to make the death penalty immoral. What I hope to have shown is that even if all of these problems were fixed, the death penalty would still be immoral. If that’s true, then efforts to reform the death penalty system will inevitably fail, and abolition is the only morally defensible course.

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Death by State? The Country Discusses Abolition of Capital Punishment

image of two adjoining prison cells

Many Netflix viewers in recent weeks have familiarized themselves with the details of a set of notorious crimes committed by a criminal executed by the state of Florida in the 1980’s. The Ted Bundy Tapes tells the story of the life and crimes of Theodore Robert Bundy, a depraved serial killer who raped, tortured, and killed women and engaged in necrophilic acts with their bodies. A case like Bundy’s is just the kind of case that motivates supporters of the death penalty in their arguments for the claim that capital punishment is a moral necessity.

The series includes footage of the day Bundy was executed. Thousands of people celebrated outside of Florida State Prison. Street vendors sold electric chair lapel pins and t-shirts that read “Burn Bundy burn!”—a phrase that the crowds chanted at fever pitch while setting off fireworks nearby. Spectators held signs scrawled upon with phrases like “Toast Ted!” and “Crank up Old Sparky!” When asked about the spectacle, Bundy replied, “They’re crazy!  They think I’m crazy, listen to all of them!” The scene was not unlike the one that Charles Dickens described witnessing at the execution of François Courvoisier in 1840: “No sorrow, no salutary terror, no abhorrence, no seriousness; nothing but ribaldry, debauchery, drunkenness, and flaunting vice in fifty other shapes … It was so loathsome, pitiful and vile a sight, that the law appeared to be as bad as he, or worse.”

These cases motivate reflection on the role that emotion plays in this most severe of punishments. Emotions spike in response to acts of senseless violence and depravity. If this happens at the level of community spectators, might there also be intense emotion in place at other stages of the criminal proceedings? What level of emotion is appropriate? What kind of emotion is appropriate, and directed toward whom? It may be that moral judgments always involve a certain amount of sentiment. Indeed, some moral philosophers have argued that moral judgments are nothing more than expressions of sentiment. On the other hand, it is uncontroversial that emotions sometimes cloud our better judgment. What’s more, not all emotions are created equal, and empathy may well count for much more than anger.

Public support for the death penalty has diminished significantly over the years, with rates of approval dropping from 80 percent in the 90’s to 56 percent as reported by Gallup in 2018. In the past year, several states have considered repeal of the death penalty. In 2018, abolition was considered by Washington, Utah, New Hampshire, and Louisiana. In 2014, the governor of Washington, Jay Inslee, imposed a moratorium on the death penalty in the state, claiming that its inconsistent and unequal application made retaining the form of punishment morally and legally indefensible. In October of 2018, the Washington Supreme Court ruled that the death penalty, as applied in the state of Washington is arbitrary and capricious and racially biased, and that as such it is inconsistent with Article I, section 14 of the Washington State Constitution. The court made use of a study produced by researchers at The University of Washington titled “The Role of Race in Washington State Capital Sentencing 1981-2014”.  The study concluded that “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Earlier this month, the Washington State Senate reinforced the reasoning of the court when they passed a measure to repeal the death penalty. The bill now advances to the House. On February 14 of this year, the proposed repeal of the death penalty in Wyoming failed in the Senate.

The United States has been engaged in a conversation about issues related to state-sanctioned killing as punishment for as long as the nation has existed. Recently, arguments for repeal have focused on racial bias, cost, the proper relationship between the government and its citizens, and the possibility of executing innocent people. Since the reinstatement of the death penalty after a national moratorium in 1973, 165 death row inmates have been exonerated.

One of the central arguments in support of the death penalty has to do with retributive justice—a moral commitment to make sure that a criminal “gets what they deserve.” According to this argument, some crimes—like those that Bundy committed—are so heinous that the perpetrators deserve to lose their lives as punishment. On this view, the death penalty is a basic requirement of justice. One of the primary moral obligations of a state’s criminal justice system is to achieve justice for victims and their loved ones. If this is the case, the state is not merely permitted to execute perpetrators of the most heinous crimes, they are morally obligated to do so. Those that hold this view would likely argue, for example, that if the state of Florida failed to execute Ted Bundy, that failure would count as a serious miscarriage of justice and dereliction of duty.

This argument raises a series of questions, many of which focus on the idea that imposition of the death penalty is not merely permitted, but is actually required. This claim seems to rest on the idea that the obligation that the state owes to victims of crimes is unique and morally privileged. There are considerations that speak in favor of this idea. Many philosophers argue that the feature that makes persons distinct from non-persons is their capacity to make autonomous decisions. When people commit crimes, those crimes almost always involve violations of autonomy. In the most heinous cases—like cases of murder—the crimes involve the annihilation of the person and the autonomy that makes them one. If autonomy is highly valued by our society, as it should be, then perhaps it makes sense to place justice for victims and their families high on the list of moral priorities. Add to this the pain and suffering experienced by the loved ones that the victims left behind, and we are left with a powerful argument for giving special moral consideration to victims. These considerations are paired with a perceived (and possibly real) obligation arising from intuitions both common and strong—it is unfair when bad things happen to good people, and when those bad things are freely caused by a bad person, bad things should happen to that person. One might think that this is an issue of fairness.

Even if the state’s obligations to victims and their families is important, it is worth asking whether those obligations override the State’s other important obligations. Death penalty cases are exceptionally expensive. In earlier discussions of repealing the death penalty, Washington legislators considered the fact that capital cases cost the state at least $1 million dollars more than non-capital cases. Presumably, these funds could be used for other crucial state expenses. Even if we concede that the death penalty achieves justice for the families of victims, does the state’s obligation to achieve that justice really supersede other state obligations? Given that the offender has already been apprehended and faces life in prison, would the money be better spent on schools, roads, or health care?

Another crucial question to resolve is exactly what should count as evidence against the permissibility of the death penalty. Washington made use of research indicating racial bias within the state. Should other states with similar or identical policies and practices take that same study as evidence that their policy is susceptible to racial bias? Or is any policy potentially subject to racial bias and does the moral permissibility of the policy turn on the demographics and attitudes of the particular area in question? Are all states morally obligated to be proactive in conducting research about their own communities?
  Should evidence that a single person on death row is innocent count as evidence of the inevitably error-prone nature of the system, and should that evidence suggest that we should abolish the death penalty? How many errors are we willing to let slide?
 Lack of agreement on these initial framing questions may explain why the national conversations about this issue have been prolonged and frequently unproductive.

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Human Dignity, Capital Punishment, and the Pope

Scrabble tiles spelling out the phrase "Death Penalty" on a gray background

Since his elevation to the papal seat in 2013, Pope Francis has repeatedly made international headlines with comments suggesting a desire to change Roman Catholic doctrine on matters ranging from marriage to contraception to the nature of the afterlife and more. The beginning of August saw Francis make more than a remark with the publication of a revision to the Catechism of the Catholic Church officially labeling the death penalty “inadmissible” in all cases.

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Justice on a Conveyor Belt: The Death Penalty in Arkansas

In March and April of this year, the state of Arkansas made national headlines for its plan to execute eight prisoners over the course of 11 days.  The speed involved is striking, especially when compared with national annual execution averages; only 20 people were executed nationwide in 2016.  

The truth is, Arkansas is racing against the clock.  Like most states, the primary method of execution in Arkansas is lethal injection.  Death by lethal injection is typically accomplished using a three-drug cocktail.  In Arkansas, midazolam is used as an anesthetic, ideally ensuring that the prisoner does not experience any pain.  Vecuronium bromide is used to cause paralysis before potassium chloride is used to stop the heart.  The trouble is, the remaining midazolam that Arkansas possesses is about to reach its expiration date, and it looks like they won’t have access to more any time soon.

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Death Row Dilemmas: The Sentencing and Execution of Ronald Smith Jr.

In the early hours of the morning, on November 8th, 1994, Casey Wilson was working his shift at a Circle K in Huntsville, Alabama.  That morning, 23-year-old Ronald Bert Smith Jr. came into the station with the intention to rob it.  He pistol-whipped Wilson and forced him to the convenience store restroom where he shot him.  Wilson died of his wounds.  To avoid detection and identification, Smith removed the store’s surveillance videotape from that night and brought it with him.

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