The Death Penalty, Incremental Progress on the Avenue of Criminals, and Net Injustice

Responding to the Troy Davis execution, Ross Douthat does what he does best, offering an overthought response that manages to “raise a point” without actually addressing the central issue in the argument. Maybe that’s useful on some topics, but not really here. The argument: the death penalty, because it’s so terrible, generates justice by inspiring aggressive investigation of death row convictions:

In a world without the death penalty, Davis probably wouldn’t have been retried or exonerated. His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.

Instead, he received a level of legal assistance, media attention and activist support that few convicts can ever hope for. And his case became an example of how the very finality of the death penalty can focus the public’s attention on issues that many Americans prefer to ignore: the overzealousness of cops and prosecutors, the limits of the appeals process and the ugly conditions faced by many of the more than two million Americans currently behind bars.

Simply throwing up our hands and eliminating executions entirely, by contrast, could prove to be a form of moral evasion — a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked. We should want a judicial system that we can trust with matters of life and death, and that can stand up to the kind of public scrutiny that Davis’s case received. And gradually reforming the death penalty — imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well — might do more than outright abolition to address the larger problems with crime and punishment in America.

Buried in here is a valuable metaphysical point: despite the horrors of war, death, or really any classically human tragedy, by experiencing loss, we discover a part of ourselves, and that often profound response itself has value. We wouldn’t have The Diary of Anne Frank or Atonement without World War II; the Renaissance without the fall of Rome; or America without the horrors of true tyranny. Tolkien put it eloquently in his Silmarillion:

“Thus even as [God] spoke to us shall beauty not before conceived be brought into [the World], and evil yet be good to have been.”

But Mandos said: “And yet remain evil.”

Mandos wins that debate. Nine times out of seven (YouTube), we’d trade the lesson to avoid the tragedy.

So too with the death penalty. First, to imagine that the death penalty is exclusively or uniquely capable of drawing the attention of pro bono lawyers, for the vital work of proving the innocence of underprivileged felons, is simply wrong. That work proceeds in other forms in non-death penalty states thanks to the efforts of law firms with good pro bono programs, and broader-based social justice organizations. Last Monday, at my firm, we filed a cert. petition challenging a New York conviction, on the novel theory that state courts cannot constitutionally refuse to apply changes in judge-made criminal law retroactively. And last Tuesday, I lost an appeal arising out of an Illinois conviction where, despite the loss, we convinced the Seventh Circuit to adopt a slightly more pro-defendant standard in habeas appeals. So the criminal law evolves, despite the absence of the death penalty. Conscientious lawyers necessarily take Douthat’s broader view of flaws in the criminal process, and we don’t have to kill people to inspire good work.

More importantly here, the cost of inspiring good lawyering, in Douthat’s view, comes with a terrible price. The defense bar’s lot in life is a hard one: we take good cases, but lose more often than not, and loss in a death penalty case means (adopting Douthat’s assumption about Troy Davis’ innocence) that an innocent man dies. What we’re talking about then is a system that puts a gun to society’s back to inspire good lawyering, and ends up pulling the trigger regardless of the result. If along the way some progress is made in creating a better criminal system, that’s a side effect of the sytem — not the intended result.

That social benefit — Ross Douthat’s justice — is cold comfort for the dead. As it is for us. We shouldn’t have to offset the injustice of a wrongful execution with the justice of incremental progress in reforming the criminal law. By my account, that’s still a net injustice, which just isn’t good enough.



  1. Currently, three men are on death row in India.

    (Link: Article on the three on death row-]

    That’s where I come from and democracy is off a completely different flavour here. As far as death penalty, it is point blank injustice. If I understand you a little bit, then I do agree that criminal law as whole should go under criticism or maybe even law itself. As most of my work is at the grassroot level and with kids, I somehow see in this country a possibility to create this debate at an early age to be very benefitial. I like the idea of creating spaces for dialogue and sometimes I use theatre for this, with the broad banner ‘personal is political’ activities. In India, the public severely needs an attitude change towards governance, human rights, and so on.

    As for this article, I am glad I stumbled upon it because death penalty and justice in criminal law has remained a growing debate in my head. This article has lead to me to a few directions.

    Will be back to read more.

    Samyuktha PC
    Chai Kadai.

  2. “Simply throwing up our hands and eliminating executions entirely, by contrast, could prove to be a form of moral evasion — a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked. “

    I worry about this as well. I worry that juries would be more inclined to give life in prison because, well, it’s not the DEATH PENALTY.

    1. Wouldn’t it be the current system that leads to that? When the death penalty is an option, it could be seen as a reprieve to grant the lesser sentence of life in prison. When it’s the toughest sentence, it may actually be taken more seriously.

      1. To clarify, when life in prison is the toughest sentence, it may be taken more seriously

  3. Of course, I am not a lawyer, but it seems to me that one of the biggest problems for the American criminal justice system is that in many jurisdictions the judge, prosecutor, and sheriff are all elected positions, and the easiest way to get elected to one of those roles is to be “tough on crime”. What are your thoughts on electing, well, any of those?

  4. I hope I’m on record as against electing judges. If not, here we are — I AM STRONGLY AGAINST ELECTING JUDGES :). There’s a long NYT series on what a disaster it’s been in this state. I’ll see if I can find it.

  5. Douthat’s argument is total nonsense. If the presence of the death penalty really acted as an agent of legal reform, as he claims, it ought to follow that jurisdictions that retain it should have better legal systems than those that have abolished it. I think we just need to look at China to realise that this is pretty far removed from reality.

    Or a bit closer to home, every single country in Europe with one exception has in fact abolished the death penalty, but we do like to think that our legal systems function reasonably well despite that. (The exception, of course, is Belarus, which is, er, not exactly a shining beacon of the rule of law.)

    The fact of the matter is that high legal standards and public scrutiny of the legal system depend entirely on a developed and well-functioning civil society, rather than this imagnary mechanism that Douthat proposes. If anything, I’d suggest that the continued use of the death penalty is on the contrary an indication that something in the civil society is not quite working as well as it should be.

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