Capital punishment and violence.

To understand the debate over capital punishment, it is necessary to identify the purpose of the criminal justice system. To a majority of Americans it is, essentially, to retaliate and punish those who commit crimes, especially brutal and vicious murders, thus balancing the scales of justice. To others its goal is to reduce violence overall. The question of capital punishment, then, pits two great demands of society against each other: the demand for retribution for violating the most basic duty of the social contract--the duty not to murder another--and the need to eliminate, or at least minimize, society's culture of violence.

In the United States, capital punishment was adopted from British common law. Then, from the time of the American Revolution through the Civil War, degrees of murder were developed, dividing the crime into first degree premeditated murder, to which the death penalty applied, and a second degree crime of impulse or passion. This was a compromise between those (mostly Quakers) who wanted to abolish the death penalty entirely and those who wished to keep the law essentially unchanged. From the Civil War until the 1960s many states first abolished and then reinstated capital punishment.

But by the 1960s the role of the federal appellate courts had greatly expanded as they applied the federal Bill of Rights to state criminal proceedings in capital cases, especially the prohibition against cruel and unusual punishment and the requirements for due process and equal protection of the law. This coincided with an increased public demand for an end to capital punishment. As a result, capital punishment laws were repealed in several states and no executions were carried out anywhere in the country from 1968 to 1976.

These changes led in June 1972 to the U.S. Supreme Court decision in Furman v. Georgia. The Court ruled that the way in which capital punishment statutes were administered was unconstitutional. After reviewing the statistics from the 1920s through the 1960s, the majority concluded: "The death sentence is disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups." The conviction and execution of blacks were particularly disparate when the murder victim was white and especially when a white woman was raped. Justice William J. Brennan observed, "When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied." The Court also found that excessive punishments are prohibited and concluded that, since life imprisonment is as effective a deterrent as execution, capital punishment was excessive. Justice Thurgood Marshall added, "I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance."

In response to the decision in Furman, the state of Georgia amended its law to provide for capital punishment of certain crimes in a way designed to eliminate excessive penalties as well as discrimination and arbitrariness in deciding who will die. The amended law was then used to convict and sentence to die Troy Gregg for the 1973 murder of two men during his theft of their car. The case, Gregg v. Georgia, was appealed to the U.S. Supreme Court, which determined in 1976 that the defendants had been accorded due process of law and that the death penalty in this case didn't constitute cruel and unusual punishment. The Court thus reinstated capital punishment on the ground that the practice wasn't unconstitutional per se.

This decision was reached on the following two bases. First, the Fifth Amendment to the U.S. Constitution expressly recognizes and, to that extent, authorizes the death penalty when it states, "No person shall ... be deprived of life ... without due process of law." This is because, by implication, a person may indeed be deprived of life with due process of law. Second, regarding the matter of cruel and unusual punishment, the majority stated that "the petitioners on Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated" and that the Eighth Amendment prohibiting cruel and unusual punishment could now be construed "as prohibiting capital punishment." However, "developments during the four years since Furman have undercut substantially" that proposition. The majority referred to new death penalty laws that had been enacted in at least thirty-five states in response to Furman, and to Congress' 1974 passage of a law "providing the death penalty for aircraft piracy that results in death." The majority of justices concluded that all of these "post-Furman statutes make clear that capital punishment itself has not been rejected by the elected representatives of the people." Therefore the social evolution in which Justice Marshall had previously placed his belief didn't actually appear evident.

Today it seems even less evident. Many in U.S. society demand vengeance and retribution for violent criminal conduct. Retributive justice means that the criminal must be made to pay for the crime by a crude mathematics that demands the scales of justice be balanced; this appeals to humanity's basest animal instincts and ancient demands for an eye for an eye, a life for a life. Retributive justice is fueled by hatred and satisfied only with full and complete revenge--the more cruel, the more satisfying. Civil liberties defender and lawyer Clarence Darrow observed that the state "continues to kill its victims, not so much to defend society against them ... but to appease the mob's emotions of hatred and revenge." After Oklahoma City bomber Timothy McVeigh was executed amid wide television coverage, over 80 percent of the viewers polled said that he deserved to die; many said his death was too clinical and he should have died more painfully. One man said that McVeigh should have been stoned to death. Others were willing to forego his execution because they thought that life behind bars with no possibility of parole would be a greater punishment.

Retributive justice has a bad history, however, as it has historically been used to enforce a class society by oppressing the poor and protecting the rich. It has been used to impose racism by applying the law in an unfairly heavy-handed way upon African-American citizens and in a lenient manner upon white Americans. The U.S. justice system has imprisoned more that two million people; about hall are black, although African-Americans constitute only 12 percent of the total population. The prison system has been likened to a twenty-first century form of slavery.

More astonishing, perhaps, is that execution statistics from 1977 through 2002 show that capital punishment isn't so much a national problem as it is a problem local to the South. Nationally, 563 executions occurred during this period and the eleven states of the old Confederacy account for about 87.5 percent of these. Texas is way ahead of the pack, having performed about one-third of all executions. In 2002 Texas alone killed thirty-three death row prisoners. It's no coincidence that the South is also the most violent region of the country. However as more and more death row prisoners in other states exhaust their appeals, capital punishment will become more of a national problem.

Of those who favor capital punishment, not all would agree that retribution is their motive. Many argue that it is a deterrent to murder. But is it? Think of the troubled boys at Columbine High School who killed a teacher and students first and then committed suicide. Many violent people--particularly violent adolescents--resort to violence toward others only as an alternative to suicide and, in many cases, kill themselves anyway after killing others. Capital punishment wouldn't be a deterrent to them.

If these might be viewed as exceptional circumstances, then a way of covering all circumstances would be to compare statistics between states and nations with and without capital punishment. However, the majority of the justices in Gregg, after reviewing the evidence, concluded, "Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. The results simply have been inconclusive." This may be because whatever deterrence factor exists for capital punishment probably exists almost equally for life imprisonment.

A far greater deterrent than either, however, would be more efficient police investigation. An average of twenty-two thousand murders and non-negligent manslaughters are committed annually in the United States but only two-thirds, or fifteen thousand, suspects are arrested. And only 45 percent, of about ten thousand, of all accused killers are convicted.

So, in the end, there is only one purpose, one motive, one true reason for demanding death over life imprisonment: revenge. The issue isn't whether the state has the right to execute those who commit premeditated murder; it has. The issue is whether the state ought to execute convicted murders.

The U.S. justice system has reverted to a strictly punitive method in order to prove "tough on crime" and in the hope that stronger punishment will somehow deter future criminal activity. But the reality is that severe punishment isn't working. Kids and petty offenders under the current system become hardened, violent, and persistent criminals. The present punitive and retaliatory justice system is unworthy of the American people's high standard of justice, which values the individual and demands equal justice for all.

Many who seek to eliminate the culture of violence in society assert that capital punishment actually exacerbates the level and intensity of violence in the community. They observe that the state is backwardly killing people in order to teach others not to kill. They search for ways to heal the effects of crime upon society, the victim, and the offender. Restorative justice seeks to eliminate violence from the community and heal the harm done to the extent possible.

Violence is a highly contagious social disease that causes emotional, psychological, and physical damage and turns a peaceful person into a hostile one. The essence of violence is hatred, anger, rage, and desire for revenge caused by an act of wrongful violence internalized by the victim. When one allows oneself to be filled with these emotions in response to a violent attack, it allows the attacker to do more than just cause physical injuries. The attacker then does emotional and psychological damage as well. She or he has destroyed the victim's sense of inner tranquility and stability--a destruction that remains long after the physical injuries have healed. When anger, rage, hatred, and vengeance fill that space, the victim is turned from a peaceful to a violent person. This violence is the self-inflicted destruction of one's inner peace.

And violence begets more violence. It is a contagion spreading hatred, anger, rage, and desire for revenge to others out of empathy for the victim. Moreover, a violent victim may seek revenge against the original perpetrator and can be tempted to take out that anger on family members and friends when emotional triggers enflame the violent condition. Violent people don't have ample social skills to resolve differences peacefully and thus the contagion spreads. Each time a person commits a violent act with the intent to injure or kill, the attacker not only causes physical, emotional, and psychological injury to the victim but becomes a more violent person as well. Every act of violence makes the perpetrator more violent--whether the person is someone assaulting an innocent shopkeeper, acting in self-defense, performing a state execution, or soldiering in war. The contagious nature of violence infects the morally righteous police officer as well as the brutal lawbreaker. In his study of young murderers, Cornell University human development professor James Garbarino observes:

   Epidemics tend to start among the most vulnerable
   segments of the population and then
   work their way outward, like ripples in a pond.
   These vulnerable populations don't cause the
   epidemic. Rather, their disadvantaged position
   makes them a good host for the infection....
   The same epidemic model describes what is
   happening with boys who kill.

Horrifically, this is a social disorder that can turn innocent people against each other.

A productive way to react to an act of violence is to have the courage to resist the normal impulse for revenge and punishment, to refrain from allowing anger, hatred, rage, and vengeance to destroy one's inner peace. Civil rights activist Martin Luther King Jr. observed:

   Returning violence for violence only multiplies
   violence, adding deeper darkness to a night
   already devoid of stars. Darkness cannot drive
   out darkness, only light can do that. Hate cannot
   drive out hate; only love can do that.

On the day of McVeigh's execution, a pastor at a memorial service for some of the victims' families asked, "Is there another way we can respond to this violence without doing violence ourselves?" Restorative justice doesn't promote anger, hatred, rage, or revenge by society or by the victim but offers a nonviolent response to the violence done. The focus of restorative justice isn't the punishment of the offender; it is the separation of the violent person from peaceful society for the protection of law-abiding citizens. With a peaceful attitude and conscious decision to choose a nonviolent and nonvengeful response, the cycle of violence can be broken and the contagion stopped. It is all a matter of attitude and the realization that violence should be countered in a mature and rational manner in order to protect society without doing damage to its citizens.

So we need to approach the problem of capital punishment not as a legal matter determining the rights and duties of the parties but as if we were treating a disease--the disease of violence. The past one hundred years have comprised the most violent century in human history. That violence is reflected in our television programs, movies, video games, literature, political attitudes, militaristic paranoia, the alarming abuse toward children, pervasive domestic violence, hostility toward the genuinely poor and helpless, the persistence of racism and intolerance, the way we treat petty juvenile offenders, and the mistreatment of prisoners. When we impose severe and excessive punishment, when we seek an eye for an eye, a tooth for a tooth, a life for a life, when we seek revenge on lawbreakers by some clumsy arithmetic we call justice, we become violent law abiders. We become what we say we abhor--more like criminals--more violent people. And the contagion spreads.

Every time we send a criminal to jail, especially a juvenile offender, it is a failure of society; every time that we execute a murderer, it is another failure of society. Where were the caring family members, helpful friends, concerned teachers, and supportive social workers when that criminal was a child being abused and neglected? Who loved that child? Who educated that child so that he or she could succeed in this world? Who demeaned that child because his or her skin color of religion of ethnicity was different from the majority in the community? Who did violence to that child by relegating him or her to poverty and then hating that child because he or she was poor? Generally speaking, children who are loved and cared for don't become criminals. Family and community violence toward children, including top-down governmental violence, turns some of them into criminals. Ethical communities don't need a police officer on every street corner because ethical communities care for all their children. Criminals aren't born; they are made.

And once made, society gives little thought to rehabilitating the offender, since the purpose of retributive justice is to punish. Or they view punishment as itself rehabilitative. Americans pretend that state-inflicted cruelty will somehow teach a violent felon not to be cruel and violent; and then 97 percent of these "rehabilitated" violent criminals are released into civil society. The theory seems to be that punishment teaches one how to become a good and respected member of the community. Yet the current punishments only succeed in destroying an offender's self-esteem by imprisoning that person and separating him or her from family and friends, then dehumanizing the prisoner by referring to him or her by a number instead of a name. Prisoners also become victims of the internal violence of prison life and, when not building up resentments, become schooled by other inmates in the techniques of crime--aware that society's rejection will continue once they are released.

In order to foster a less violent society, the treatment of the offender should be as humane and non-violent as forcible incarceration can allow. Rehabilitation of the offender ought to be a necessary condition of parole. Life imprisonment without the possibility of parole ought to be the alternative to capital punishment.

Restorative justice seeks to eliminate the culture of violence in U.S. society and replace it with a culture of caring. It's a matter of attitude. We must not allow our hearts to be filled with hatred, anger, rage, and the desire for revenge. It's hard to put aside such feelings when a child or loved one is murdered, especially if the killing is particularly brutal of cruel. This is why violence is so hard to subdue. Look at the difficulties in restoring peace in countries like Northern Ireland, Israel, Bosnia, and India and Pakistan which have engaged in civil wars. Similarly, if we don't find a way to break the cycle of violence we will never be able to end the culture of violence that infects the United States.

Restorative justice doesn't ask that we "turn the other cheek." Restorative justice doesn't seek mercy of forgiveness for those who, by the calculus of duties and rights, deserve to die. Rather, it asks us to protect ourselves from the disease of violence by not killing the despised one. Someone must go first to stop the cycle of violence; the obvious candidate is the state. The words of John Donne from his poem "No Man Is an Island" seem particularly appropriate when we execute a condemned prisoner: "Ask not for whom the bell tolls; it tolls for thee!"

Robert Grant is a New York attorney and a former judge presently living in Augusta, Georgia. He teaches American government in the Political Science Department of Augusta State University. He is the author of American Ethics and the Virtuous Citizen: Basic Principles and American Ethics and the Virtuous Citizen: The Right to Life, both published by Humanist Press. This article has been extracted and adapted from the latter book.