10 | HOW TO GET A DEATH VERDICT
I AM NOT OPPOSED to the death penalty on principle, and I am certainly not opposed to it because of fundamental moral (or religious) convictions—since I lack these. I believe that historically the death penalty served certain social purposes. Earlier societies had, for various reasons, not been able to establish a legal system that could deal with crime in a complex fashion and often could not establish the institution of the prison as a major agency of punishment. Such societies (ancient China, for instance) relied mainly on corporal punishment, including beatings, mutilation, torture, and executions. I am certainly happy to live in a society where I will most likely never be exposed to such modes of punishment. But given historical and social contingencies, I find it hard to condemn such civilizations as inherently or principally immoral.
In some circumstances I think that what could be called extralegal death sentences are socially appropriate even today. Given the conditions of the revolution in Romania in 1989, the execution of the Ceauşescus, which did not result from due legal process,1 seems to have been the right (socially and politically, but not necessarily legally or morally) thing to do. Had the military coup to assassinate Hitler succeeded, my home country would most likely have been spared from much of its devastation—and the concentration camps might well have closed earlier. I also did not grieve when I heard that fellow inmates had killed Jeffrey Dahmer in prison. It is hard to always remain the moral fool. Still, I think that the legal system should, as much as possible, avoid moral sentiment and extralegal killing. The legal system works best when it tends toward moral foolishness.
I strongly argue against the death penalty in this chapter, but not for moral reasons and not on principle. Instead, I try to make an amoral and antimoral case against the specific pseudolegal practice of the death penalty in the United States today.2 In fact, I try to show that morality is to blame for both the ideological and philosophical justification of this anachronistic practice as well as for the many legal problems associated with it, such as, in particular, the staggering extent of wrongful convictions. I do not, and this has to be stressed, think that the current moral (and religious) condemnation of the death penalty in the United States is appropriate nor do I think it will be effective in abolishing the death penalty. Morality is not the solution to this pseudolegal practice of the death penalty, but, on the contrary, is itself at the heart of the problem.
Continuing my argumentation of the two preceding chapters, I give a concrete example of the damage that is done when morality is imposed on the legal system, when it becomes, so to speak, morally infected, and thus loses its operational autonomy. Put very concretely: I hope to show through the example of death penalty practice in the United States what happens when offenders are conceived of as evil more than as criminals. I hope to show what happens when legal justice is twisted into moral justice.
It is interesting to look at the recent history of the death penalty on an international scale. In 1985, the large majority of all countries, 130 out of 176, were retentionist, that is, they practiced the death penalty. The percentage then declined steeply. A mere sixteen years later, only 86 out of 195 countries were still retentionist.3 I do not think the main reason for this development is an increase in global morality, or an understanding of the universal validity of supposed human rights. After all, most countries that do have the death penalty (including the United States) present themselves as highly respectful of either human rights or moral principles (Iran)—and, as I show, sometimes even point out that the death penalty is a human right!4 Instead, I think the demise of the death penalty can be described as an effect of the emancipation of the legal system from moral, political, and religious domination. The above statistics strongly suggest that along with the currently increasing functional differentiation of the legal system, the death penalty is more and more regarded as an illegal form of punishment. Just as other function systems no longer equate their value distinction with moral distinctions, the legal system has to a large extent separated itself from moral discourse. The result of this is clear: When bad students or opposition politicians are not regarded as evil, and instead are seen as being underperformers or losers in an election, they may get bad grades or less powerful positions but they are not beaten or killed—they are not exposed to personal and thus often corporal sanctions. Moral judgments aim at the whole person, including her bodily existence—and thus the whole person, including her body, may become the object of sanctions. If a bad student is seen as personally guilty of his bad performance then it makes perfect sense to beat him. If an opposition politician is seen as evil (or as rebellious) then it seems only right to get rid of him.5 Corporal punishment makes sense because a person is not seen as merely a bad student or a bad politician but as fundamentally flawed and wicked. If, however, a system ignores those aspects of an individual’s existence (the body of the person, for instance) that are irrelevant for the function of the system, then it is more likely to develop its own less personal, less moral, and less corporal, but much more functional sanctions—it awards bad grades but goes no further. Marks are systemic constructs that do not relate to the whole person, but only to the person as a student. From a functional perspective a bad student is simply a bad student. From a moral perspective, a bad student is a bad person that has vices (perhaps laziness, obstinacy, an undisciplined nature). When students are morally rather than functionally evaluated, then corporal punishment is certainly an option that makes sense. Students were typically subject to corporal punishment in earlier societies that lacked fully developed functional differentiation.
Nothing in the contemporary function systems calls for a total sanctioning of the whole person and her physical life. Function systems treat individuals as students, professors, candidates, voters, or consumers with respect to their particular functions; they do not tend to treat them as beings that may have to be entirely destroyed if they do something truly bad. They sanction individuals in accord with their systemic functioning (e.g., if you do a bad job, you get fired; if you run slowly, you lose the race), but not with respect to their physical existence. And they do this because the physical existence of human beings is not a relevant factor in their judgments. Of course, people have to be alive in order to be able to be a student, a consumer, or a voter, but there is no specific way in which any system can account for the bare fact of being alive, and there is no reason why it would concern itself with systemically taking away life. Function systems are simply not concerned with bare life. While legal sanctions can of course be harsh and include imprisonment for extended periods of time, and thus impose severe limitations on a person’s social existence and freedom, they are in societies with highly developed functional differentiation normally not corporal and do not totally exclude a person from society. Prisoners in such societies are typically not supposed to be beaten, and they are still allowed (though often in a limited way) to watch TV, be educated, practice a religion, have personal property, receive medical attention; they even have some legal and political rights. They are still able to take part in mass media communications, the education system, religion, the economy, medicine, intimacy, and the law. Negative sanctioning by social systems can be drastic (e.g., imprisonment, being fired, not being allowed to graduate) and significantly limit one’s chances for success in other social systems (if one does not get a high school degree, it is more difficult to make a lot of money), but they usually remain merely social sanctions.
Sanctions in any system that may ultimately exclude a person from society through execution are, in a profoundly amoral and obvious sense, cruel and unusual. On the one hand, they are unusual because they do not conform to any of the codes that social systems operate with. On the other hand, they are cruel because they are an act of sheer destructive physical violence. Perhaps it is morally right to kill people legally (as most proponents of the death penalty say). Still this does not make it less cruel. I do not know if cruelty is on principle moral or immoral, but I know that killing someone who does not want to die is cruel. Probably those who killed the Ceauşescus were doing the “right” thing, though I am sure that they acted in a cruel manner. Once more, there may well be circumstances in which it may be appropriate or, for various reason, practical, to act in a cruel and unusual way (and perhaps kill others). The U.S. Constitution, however, says that this should be avoided in the legal system.
I think that the recent decrease in the application of the death penalty can be explained in the context of increasing functional differentiation. Once criminal offenders are not convicted as evildoers, and once focus shifts to their violation of the law, then corporal punishment, in particular, its most extreme form, capital punishment, becomes more and more obsolete. Those countries in which the legal system is not free from religious, moral, or political domination (such as Iran, Afghanistan, or China) seem to tend more toward the use of corporal punishment than countries with a more secular, relatively amoral, and functionally autonomous legal system (like most European countries and Canada). The United States is a very special case in the so-called Western world. While bodily punishment is illegal for most crimes (Guantanamo seems to be an exception), the death penalty is widely practiced, and it is practiced, as I hope to show, largely for moral (and partly for religious and political) reasons. The abolishment of minor corporal punishment (in most cases) and the retention of corporal punishment in its most extreme form is, in my view, an open and crass contradiction in U.S. legal practice and is clear evidence of its archaic (or should I say primitive?) character.
If the overall decreasing number of countries practicing the death penalty is indeed an effect of increasing functional differentiation on a global scale, then this is an example of how an entirely amoral and purely structural social development can contribute to the separation of law and morality in legislative matters. The widespread abolishment of the death penalty is then not due to any moral progress of lawmakers but to social changes that have led to the demoralization of various social systems, including the law and its legislative branch.
In this chapter I discuss the judicial aspects of a still overmoralized legal system. In order to do this, I first look at the philosophical or ideological justifications of the death penalty in America. I then look at the way in which judicial procedures have been subject to moralization on the basis of these justifications. And finally, I examine how this affects trials that invoke the death penalty.
In their study on the reasons why Americans have been overwhelmingly supportive of the death penalty for more than fifty years, Phoebe C. Ellsworth and Samuel Gross name the following categories: deterrence, retribution, cost, incapacitation, and emotion (i.e., the argument that some sort of emotional healing results from the death penalty). Only two of these categories are moral (retribution and emotion) and I discuss these in detail below. The other three reasons are pragmatic—and they are all unwarranted. Empirical research has shown that the death penalty in the United States does not have any obvious deterring effect. A survey of deterrence studies by William C. Bailey and Ruth D. Peterson concludes: “Over the decades, the findings from comparative studies were very consistent and quite contrary to the deterrence thesis. . . . Simple comparisons of retentionist and abolitionist jurisdictions showed that the provision for the death penalty had no discernable effect on murder.” Even the hardest of hardliners among the intellectual advocates of the death penalty in America, Ernest van den Haag, admits that “statistics have not proved conclusively that the death penalty does or does not deter murder more than other penalties.” In line with most other pro—death penalty philosophers, van den Haag soon concedes that deterrence is not the reason why he is in favor of capital punishment, and thus it is ethically irrelevant: “I would be for capital punishment on grounds of justice alone.” The popular argument from deterrence is easily dismissed. Not even the theoretical defense of the death penalty is truly concerned with deterrence. Cost is another popular but equally counterfactual pragmatic argument for the death penalty: “Death penalty cases are much more expensive than other criminal cases and cost more than imprisonment for life with no possibility of parole.”6 While economic arguments for the death penalty may well have been (and probably still are) warranted in other countries and societies, they are not in the context of U.S. legal practice. If an American says that he is for the death penalty because it saves taxpayers money, he does not know the facts. The argument for incapacitation is also obviously flawed and, consequently, not taken very seriously by death penalty philosophers. People can be prevented from committing crimes by imprisonment or other measures.
The remaining two arguments, retribution and emotional healing, are essentially moral. In fact, the argument from emotion is inseparably connected with the one from retribution—since it is the act of retribution that is supposed to provide emotional comfort for the victims (if they remain among the living), their loved ones, and the rest of society. Still, the argument from retribution can be made on moral grounds (or, in van den Haag’s words, “on grounds of justice”) alone. The argument from emotion presupposes the argument from retribution, but not vice versa. The retributive impulse has been described as “dominating in public discourse over the past two decades”7 in the United States and it has been equally dominating in the academic defense of the death penalty.8 It is typically traced back to Immanuel Kant (and sometimes also to Hegel).9 Kantian defenders of the death penalty mainly refer to The Metaphysics of Morals. (I comment on this interesting treatise in chapter 6.) The very title of this work gives an insight into the Kantian justification of the death penalty. Execution is primarily a moral necessity and only secondarily a matter of law. The death penalty is ultimately seen not as a legal problem, but, expressively, as an ethical one. And, for Kant, the death penalty is necessary because of the moral need for retribution. His pure ethical metaphysics requires it. According to Kant the death penalty is “in accordance with universal laws that are grounded a priori.”10
The academic defense of the death penalty in the contemporary United States is surprisingly close to Kant, both in method and in content. Just as in Kantian moral metaphysics, the most prominent arguments focus on the moral justification and need for retribution. In one way or another, all death penalty philosophers that I refer to here (van den Haag, Sorell, Burns, and Morris) translate moral principles into legal ones. The death penalty is seen as the legal consequence of the moral need for retribution. Death penalty philosophy in America conceives of itself literally as applied ethics;11 it assumes that moral principles can and should be the foundation of law and punishment; in other words, it implies that the law needs to consult the philosophers of morality about universal laws that are grounded a priori in order to proceed. This normally is not the case in legal reality—and the legal system does not seem to suffer because of this. In fact, as far as I can see, legal practice in Europe has largely autonomized itself from moralist fundamentalists. Legal decisions and laws are supposed to be just, but this applied notion of justice in the legal system is highly contingent and cannot be reduced to any metaphysical moral principle or systematic moral philosophy. If I am not mistaken, European jurisprudence does not look at Kantian moral science as the main source of its practice. In other words, legal practice (in many countries) has become too complex, too contingent, and too dynamic to be reduced to a simple set of moral principles. It certainly does not function as the executioner of an indisputable, universal, and a priori ethical need for retribution. The United States is one of the few countries with a notable legal exception, namely the death penalty—at least if one believes the rhetoric of its academic defenders.
The Metaphysics of Morals was first published in 1797, not long after the American and French revolutions. At least with respect to law and morality, the United States remains under the spell of the ideas and concepts of the late eighteenth century, and I think this is quite remarkable.
In The Metaphysics of Morals Kant argues that punishment by a court acknowledges every human being’s innate personality. The innate personality of the criminal requires us to view him not as a mere object but as a fully responsible individual. Thus, wrongdoings can be ascribed to—in Kant’s words—the “inner wickedness” (innere Bösartigkeit) of the innate personality of the offender. Unlike natural punishment, punishment by a court recognizes the criminal as a person or a free individual. Kant views this recognition as the core of justice, which he fittingly describes in its punitive dimension as the “law of retribution” (ius talionis, Wiedervergeltungsrecht). In his typical apodictic manner, Kant insists that only the law of retribution can, both quantitatively and qualitatively, determine the punishment of an offender.12 For Kant all legal punishment is derived from the need for retribution, and this, in turn, is founded on a scientific, universal, a priori, and purely reasonable metaphysical account of ethical principles. Retributive law is the only morally correct penal law. Only retributive law does justice to the innate personality of the offender and treats him as a free and rational human being. Kantian law and ethical philosophy draw the necessary conclusions from what it means to be truly human. If someone is inherently wicked, then the ethical acknowledgment of his dignity as a free and rational human being necessitates the human right (as well as the legal duty) to execute him.
Kant was not the only “enlightened” person of his time who found it necessary to execute people for the sake of humanity, morality, and reason. His contemporary Maximilien Robespierre was one of the first who not only reflected on these moral issues but also actually came up with a very actively applied ethics.13 He not only interpreted the world, he set out to change it. I am not implying here that Kant was a Robespierrist—he wasn’t. But Robespierre justified his practice of the death penalty in terms that are astoundingly similar to those of Kant. They both shared the belief that justice and the law had to be founded on morality (or virtue in Robespierre’s terms) and that morality, in turn, had to be founded on reason. In that sense, the death penalty was, for both Kant and Robespierre, absolutely necessary on the basis of ethical and rational principles, and it reflected human dignity. Kant may not have liked Robespierre’s application of this pattern, but their semantic frameworks are remarkably similar. In his last speech to the convention on 26 July 1794, after thousands had been slaughtered during the Reign of Terror, after he had held a grotesque public spectacle to celebrate reason (and shortly before his own execution), Robespierre summed up his moral principles quite concisely:” The French revolution is the first to have been based on the theory of the rights of humanity and the principles of justice. Other revolutions only required ambition; ours imposes virtues.” Or in a little more detail:
Let us not be mistaken: establishing an immense Republic on foundations of reason and equality, holding all the parts of this immense empire together with vigorous bonds, is not an enterprise that can be completed thoughtlessly: it is the masterpiece of virtue and human reason. A host of factions springs up inside a great revolution; how can they be repressed, if you do not subject all the passions to constant justice? Your only guarantor of liberty is rigorous observation of the principles and the universal morality you have proclaimed. If reason does not reign, then crime and ambition must reign.14
In this speech, the so-called incorruptible Robespierre defended the executions of his fellow revolutionaries Danton, Fabre, Desmoulins, Hébert, Chaumette, and Ronsin.15 Their deaths were necessary because they had been conspiring against the rule of humanity, reason, virtue, and the law, and, accordingly, could not be spared—it would be immoral to do this, despite their having been his friends and political allies.
If it had been available to him at the time of the speech, Robespierre might well have referred to a text by Kant on applied ethics in which “the greatest and most punishable crime” is discussed. With respect to this crime, namely rebellion, the death penalty is absolutely required: “No rightfully established commonwealth can exist without a force of this kind to suppress all internal resistance. For such resistance would be dictated by a maxim which, if it become general, would destroy the whole civil constitution and put an end to the only state in which men can possess rights. It thus follows that all resistance to the supreme legislative power, all incitement of the subjects to the violent expression of discontent, all defiance which breaks out into rebellion, is the greatest and most punishable crime in the commonwealth, for it destroys its very foundations. This prohibition is absolute.” I am not saying that Kant would agree that Robespierre had applied his absolute prohibition in the right way, but I can see how Robespierre could have quoted this passage word for word in his self-defense in front of the convention. Robespierre firmly believed that he had acted out of an ethical, moral, and rational necessity. He acted to save “the only state in which men can possess rights” from destruction by the evil foes of these values and virtues. These foes have to suffer capital punishment, and as Robespierre said when he argued in favor of executing Louis XVI, this could well be seen as an act of just and necessary “public vengeance.”16 Many retributionist death penalty defenders do not like to identify retribution with vengeance; some, however, do, for example, Ernest van den Haag and Walter Berns.17 But when it came to “the greatest and most punishable crime” Robespierre was not shy about using strong words. For both Kant and Robespierre capital punishment was the only reasonable, virtuous, and, on the basis of retribution, appropriate legal response to enemies of the enlightened state.
Contemporary American death penalty philosophers typically suggest some sort of “Kantianism light.” They normally do not agree with Kant’s insistence on the execution of each and every murderer and rebel and all of their accomplices,18 but they share his belief that the death penalty is morally necessary. They look at legal justice not as being a contingent social construct, but as the legal application of what can be established as morally just—on the basis of a more or less scientific or rational philosophical analysis. These philosophers are no moral fools. They claim to have identified the moral principles of justice, and they expect the legal system to execute these higher principles. Sorell introduces his death penalty philosophy by saying: “Principles that give guidance in decisions about life and death are often moral principles.”19 These ethical experts claim that they are the right people to provide society with guidance in matters of life and death. And this includes the legal system’s decisions on capital punishment because they happen to know the principles of morality.
They are also Kantians because of their emphasis on the retributive character of the death penalty. Tom Sorell, explicitly referring to Kant, calls his position “retributivism.” Walter Berns, explaining his morality of anger, states that “there is something in the souls of men . . . that requires . . . crimes to be revenged.” Van den Haag says: “Particularly in a secular society, we cannot wait for the day of judgment to see murderers consigned to hell. Our courts must ‘execute wrath upon him that doeth evil’ here and now.” Kantian retributivism has become the single most important ethical principle for current death penalty philosophers in the United States. In his interesting book on the history of the death penalty the United States, Stuart Banner says: “Long rejected as a legitimate goal of punishment in academic and policymaking circles, retribution made an astonishingly fast comeback. . . . The point was made again and again—capital punishment was a moral imperative, regardless of whether it reduced the murder rate or cut murderers off from the possibility of rehabilitation.”20
Finally, the American death penalty philosophers are Kantians because they stress that the death penalty is implied by the moral imperative to respect the human dignity of the offender. If offenders are respected as autonomous human beings equipped with free will and reason, then they have to be granted the fundamental human right of suffering the death penalty. Only the death penalty pays the ultimate respect to the inalienable moral and legal status of the enlightened citizen. Herbert Morris says:” A man has the right to be punished rather than treated [therapeutically] if he is guilty of some offense.” And, once more, Ernest van den Haag: “Human beings are human because they can be held responsible, as animals cannot be. In that Kantian sense the death penalty is a symbolic affirmation of the humanity of both victim and murderer.”21
Contemporary American death penalty philosophers justify capital punishment on the basis of a self-declared moral science of the late eighteenth century that claimed to have scientifically established a priori moral principles, discovered the true nature of human beings, and implied that all social institutions, in particular the law, would have to apply these universal truths if the world was to be enlightened, rational, human, and good. They continue the equally presumptuous and grotesque moral discourse that was fashionable among the moralists of the Enlightenment, and they are as detached from an adequate understanding of contemporary society as those pious men of more than two hundred years ago. Their supposedly timeless, universal, and rational principles do not amount to much more than rhetorical antiquities (or should I say antics?) that deserve to be housed in a museum for intellectual monstrosities.
The infection of legal matters with morality is unfortunately not only a theoretical philosophical problem but also, and this is more worrisome, a practical problem in the courtrooms of the United States. In particular, trials that seek the death penalty are highly charged morally and are thus, in many ways, no longer primarily legal proceedings.
I find it striking how many wrongful convictions have been made especially in cases that involve the death penalty. Here one would expect the utmost scrutiny and care. Statistics show that in the United States wrongful convictions in such cases are not isolated incidents. Notwithstanding the extreme procedural difficulties in having a death penalty verdict reversed, one statistic lists 48 people on death row who, between 1973 and 1993, were released because of innocence.22 The term “innocent” is here, obviously, used legally, not morally.
The confusion between the moral and legal use of the term “innocence” has become quite prevalent. I discuss this in more detail in chapter 11. Here I emphasize that I find wrongful convictions wrong because of legal and not moral reasons. To convict people for crimes they have not committed is primarily a legal error, and only secondarily, and not even necessarily, a moral error. A convict may not be morally innocent, but she shouldn’t be found legally guilty if she is not.
Let me illustrate this with an example from sports. I once took part in a soccer tournament in Germany. Surprisingly, our team reached the finals, and we even scored the winning goal in overtime—or so we thought. The referee annulled the goal for some obscure reason. Shortly after this the other team scored and won the tournament. Afterward, the referee admitted to me that he knew that our goal was allowable and that, technically, we should have won. However, he said this would not have been right since we had played much worse than the other team, not only in the finals but also during the whole tournament. We didn’t deserve to win. From a moral perspective he was right. In fact, the other team was better and probably deserved to win more than we did. But from the perspective of the sports system his decision was obviously wrong. Sports competitions are not decided by morality but by such criteria as the number of goals—scored deservedly or not. In a similar way, wrongful legal convictions may, under special circumstances, actually be morally deserved, but they are still unjust in a legal sense. If he had been a professional referee, everyone would have agreed that he should be fired—he allowed his moral judgment to overrule the criteria constructed within the sports system.
As of the year 2004, 102 people on death row in the United States had been exonerated since 1973.23 No statistic can tell us how many wrongful convictions remain undetected, how many people remain on death row or have been executed on the basis of a juridical error. One might interpret the high number of exonerations as proof that the system works well—102 innocent people were finally identified. But I think this is a highly dubious claim. It can never be proven, but I believe that this statistic may instead indicate that a similar or even higher number of unlucky inmates were wrongfully executed. In any case, the number certainly indicates that death penalty trials are by no means foolproof. All 102 people had been found guilty beyond a reasonable doubt. How could the juries or the judges in those 102 cases be without reasonable doubt? And how could, in each of these cases decided by a jury of twelve people, the verdict be unanimous? I think that one of the main reasons for this surprising fact is the moral overkill in U.S. courtrooms, particularly in death penalty cases, and that it is fueled by the recent rise of retributivism.
Typically, the following explanations are offered to explain why a wrongful conviction might have come about: racial prejudice; illegal acts by overzealous prosecutors, police, or judges who misrepresent the facts in order to get a guilty verdict; inadequate counsel because of incompetent court-appointed attorneys or the defendant’s inability to pay for an effective defense team. I have no doubt that all these factors have contributed to a good number of wrongful convictions. But I think the strong emphasis on morality that is typically part of U.S. trials involving the death penalty, along with the resurgence of retributivist ethics, probably plays an even more important role.
In “The Symbolic Transformation of American Capital Punishment” Franklin E. Zimring presents an excellent analysis of the shift toward the moralization of death penalty trials in the United States—only he does not call it moralization but “personalization.”24 His term is quite in line with the point I am making. The personal emphasis of current death penalty practice in the United States is a moral emphasis. Whereas in the past the death penalty was justified more by pragmatic, impersonal, and amoral concerns (e.g., deterrence, incapacitation, costs), the focus has now shifted toward a measurement of the “inner wickedness” (to quote Kant again) of the offender and the moral divide that, supposedly, was established through the crime. By committing the crime, the offender has demonstrated his evil character and created an innocent victim. That the victim is called innocent indicates not the obvious truth that she is not legally charged with the crime, but that she did not morally deserve her suffering. Innocence here becomes a moral term. Since the victim is innocent and the offender is wicked, the morality of anger demands retributive justice. The juridical process is transformed into a moral process. It is not so much the legal guilt but the moral guilt that is measured, or supposed to be measured, at the trial. And the distinction between wicked and innocent usually does not leave much room for ambiguities. If someone is found to be evil, it makes good sense to destroy him.
Zimring’s analysis of the use of the death penalty in America shows very clearly which recent changes manifest the personalization of death penalty trials, namely, the focus on private interests (or supposed interests) of the victims or their relatives: “The major change in the announced purposes of capital punishment in the United States in the last decades of the twentieth century was the transformation of capital trials and of executions into processes that were thought to serve the personal interests of those closely related to the victims of capital murders. The penalty phase of capital trials has become in many states an occasion for telling the jury its choice of sanction is a measure of the value of the homicide victim’s life. . . . The symbolic victim focus at both trial and execution was almost wholly the product of legal innovations and new psychological language that followed the resumption of executions in 1977.”25 When the death penalty was reinstated the semantics of retribution was in fashion. I think this new language of retribution, which has flourished since 1977, is not so much psychological as it is moral.
This new focus on the innocence of the victim, on her undeserved suffering, and on the equally undeserved suffering of her relatives became legal reality with the introduction of detailed “victim impact statements” by lawyers and prosecutors, or perhaps even more effectively, directly by relatives and friends of the victim who were called in as character witnesses (or should one say, moral witnesses?). Zimring explains the effect of this shift:
When the prosecutor elects a capital trial, then the penalty phase is remade into what sociologists call a “status competition” between the offender (whose claims to sympathy and understanding are the subject of his penalty phase presentation) and those who were directly or derivatively injured by the crime. . . . The pro-death-penalty slant in this type of status competition is obvious. Victims and their families are much easier to identify with and offenders are usually horribly at fault. But the more profound transformation that has occurred is that the penalty phase of the trial is now presented as a competition between the claims of private parties.26
And, I would add: as a competition between the moral claims of these parties.
Zimring concludes: “Creating the felt need to commemorate a victim’s loss with a death sentence is . . . good for the death penalty. It also obscures the essential governmental nature of both death sentences and executions.”27 Again, I would change the wording slightly: The moral turn of the death penalty trial does not obscure its essential governmental nature, but its essential legal nature. The death penalty is, strictly speaking, not a government matter, but a legal matter. And thus the moralization of the trial turns what was supposed to be a legal judgment into a moral judgment.
Zimring then goes on to look at the specific semantics that were created along with the moral/personal shift in capital punishment cases. A new pseudopsychological term was coined: “closure.”28 While the moral shift to victims’ interests was obviously a shift toward a morality of retribution, vengeance, or both, these terms do not sound very nice. “Vengeance is an anachronism with a bad press. Something new, something personal, and something that sounded both civilized and refined would be the best candidate for an appealing label for personal involvement in executions. From this perspective, the evocative term ‘closure’ was a public relations godsend.” The term was not used at all in the context of the death penalty before 1989, but since then it has had a fantastic career. It is now quite rare to hear about a death penalty case in the mass media without it being mentioned. As Zimring rightly remarks, the term “has no official function in legislation or legal proceedings”—it is still not a legal concept. But it is of great value for both prosecutors and the mass media in exploiting the moral potential of a murder trial. Zimring cites a poll from 2001 that showed that 60 percent of Americans think that the death penalty is fair because it provides “closure.”29 What a remarkable rating for an argument that didn’t exist twelve years earlier!
The term “closure” is used in the American mass media as a good reason to kill evil people—and how could a relative of the victim interviewed on TV not use it? Relatives have learned from the media and prosecutors that they are not only entitled but also expected to yearn for closure if they are to be good victims. Closure has become a symbolic moral necessity. If the media did not speak of closure, the story would lose some of its moral drama. There is no psychological evidence that closure happens through the execution of an offender, but this is, of course, irrelevant since the term is not used psychologically either in the mass media or by the prosecutors. Its function is to express the moral necessity for retribution. Zimring states: “It is not known whether there are psychological advantages in mourning the loss of a loved one when that loss leads to an execution, nor is there any indication that the adjustment to loss of a loved one in a homicide is any different in death penalty states than in non–death penalty states.”30 Some states even go so far as to let a victim’s relatives witness the execution of an offender for the sake of closure. I can hardly imagine how this could be psychologically beneficial. Closure is a psychological phantom, but an extremely efficient moral and rhetorical device in U.S. death penalty practice and media coverage.
A last important observation about “the transformation of execution into a victim service gesture” made by Zimring is that “it links the symbolism of execution to a long American history of community control of punishment.”31 Zimring documents in great detail how the current U.S. practice of the death penalty is related to earlier forms of community control of punishment, namely lynching and vigilantism. The moral cult of the innocent victim and the evil offender historically connects current legal practice not with the legal system but with extralegal (and now illegal) acts of public violence that were once seen as morally right. The moralization of trials that involve the death penalty makes them less a purely legal procedure than a new form of public—constituted by the mass media—lynching.
What I have said so far about such moralization may explain why the death penalty is still so popular in the United States, but it does not yet sufficiently support my initial hypothesis that it also plays a major role with respect to wrongful convictions. After all, the moral sympathy for capital punishment does not translate into a moral sympathy for wrongful capital punishment. Obviously, I do not mean to say that the judges or juries who impose wrongful convictions are somehow morally inclined to have an innocent person killed. What I am saying is it is easier to find someone legally guilty when they are seen or presented as morally guilty. While in most wrongful convictions cases there must have been some room for legal doubt (after all, in each instance the wrong person was convicted), there was likely little room for moral doubt. To cite Walter Berns again: “There is something in the souls of men . . . that requires . . . crimes to be revenged.”32 I do not know if there is something like this in the souls of men, but there is certainly something in communication in the courtroom and the mass media that makes judges and jurors decide that revenge is a moral necessity—that the evil one must be killed.
Typically, a death penalty trial in the United States consists of two phases: the “guilt phase” and the “sentencing phase.” The first phase is only meant to determine if the defendant is actually guilty of the crime. At this stage the question of whether the death penalty should actually be imposed is not yet to be considered. In the second phase, the guilt of the defendant is not to be questioned; it is now regarded as proven beyond a reasonable doubt. Here the only issue for the jury (which is usually the same as in the first phase) is if the death penalty should be imposed. Joseph L. Hoffman explains the substantial difference in the jury’s tasks in the two stages and outlines how a legal process turns into a moral one:” At the sentencing phase of a trial . . . the jury is no longer deciding a question that has a ‘true’ or ‘false’ answer. Instead the jury is being asked to decide a moral question that has no ‘true’ or ‘false’ answer: Is the defendant a person who deserves to live or to die. This is not a question of fact but one of moral judgment. There are no rules for making this kind of decision, and the law gives the jury no definitive guidance.”33 In the sentencing phase, legal issues hardly matter any longer. The only question that remains is, Is it morally right to kill the defendant?
One does not have to wonder what the sentencing phase looks like—you can see it on TV in a true crime show: The prosecution tries to create moral outrage in the jury by comparing the wicked offender with the innocent victim. It focuses on victim impact statements to show that the moral chasm opened up by the crime can only be closed by a verdict of death. The defense pleads for mercy and asks the jury to consider that the offender is not really responsible for having become so evil, that there were circumstances beyond his control. Or the defense may say that while the deed was evil, the offender is not—or, in the meantime, has repented. Two purely moral claims face one another. The jury becomes the audience of a moral spectacle and then has to decide—without definitive guidance by the law—between a morality of retribution and a morality of mercy. At this stage the law leaves the decision about life and death entirely to the moral inclinations of a group of more or less arbitrarily selected people. In short: When it comes to the final word on the death penalty, the law retreats almost entirely and allows a moral contest: “The trial judge’s power to override the jury’s sentencing verdict is (in most states) extremely limited.”34
Here is how a prosecutor speaks to the jury during the sentencing phase to obtain a death verdict. The case concerns the murder of a young mother named Charisse and her daughter Lacie Jo. It was witnessed by her son Nicholas who survived the assault:
There is nothing you can do to ease the pain of any of the families involved in this case. There is nothing you can do to ease the pain of Bernice or Carl Payne [parents of the defendant], and that’s a tragedy. There is nothing you can do basically to ease the pain of Mr. and Mrs. Zvolanek [adult victim’s parents], and that’s a tragedy. They will have to live with it the rest of their lives. There is obviously nothing you can do for Charisse and Lacie Jo. But there is something that you can do for Nicholas.
Somewhere down the road Nicholas is going to grow up, hopefully. He’s going to want to know what happened. And he is going to know what happened to his baby sister and his mother. He is going to want to know what happened. With your verdict, you will provide the answer.35
Franklin E. Zimring analyzes what happened in this case: “The prosecutor . . . presents himself as Nicholas’s lawyer instead of the state’s lawyer. The jury is being asked to make its only choice in the penalty trial by vindicating and recognizing the loss of a little boy. The implication of this type of argument is that the selection of a sentence other than death in this phase of the trial would be a direct rejection of the interests of Nicholas Christopher.”36 The jury is addressed as some sort of God-like entity that must enact moral justice through personal vengeance. The jurors are addressed as if it were their indisputable moral duty to come up with a death verdict, and if they do not, they themselves would be immoral! The only way for the jurors to preserve their own morality is to call for the execution of the offender. If the jury does not do this, it continues the suffering of the victim and becomes a partner in this crime. How many jurors are able to withstand this enormous moral pressure?
Nearly one-third of all jurors in such cases who were surveyed in an empirical study believed that the law required them to impose the death penalty, whereas in fact “under the law of almost all states, a jury is never required to impose a death sentence on a defendant; the trial judge instructs the jury that the proper sentence in a capital case is always a matter of jury discretion.”37 Obviously, these jurors have misinterpreted, likely under the influence of the prosecution, a legal possibility as a moral requirement. They were fooled into thinking that their moral judgment was legally prescribed. It was not, but moral discourse had already brainwashed them.
Given the moral quest for retribution that underlies the sentencing phase, it is no wonder that a jury will easily disregard evidence or other legal matters that are in favor of a defendant—after all, this is no longer an issue since guilt has already been established and is not to be reviewed. What counts here is ethics, and ethics alone. Under these circumstances, there is no legal recourse for the wrong-fully convicted. At this stage, exoneration is impossible and so an innocent and a guilty person are equally likely to receive the death penalty.
Still, one could argue that since the guilt phase is separated from the sentencing phase, the latter cannot really be blamed for the mistakes of the former. It seems that wrongful convictions originate in the guilt phase—when the guilt is wrongly established—and that this is not a result of moral discourse in the sentencing phase but of legal error in the guilt phase. However, it is an illusion that moral arguments do not play a major role in the guilt phase as well. While there is obviously more emphasis on evidence and other legal matters in the guilt phase than in the sentencing phase, this does not mean in practice that there is less moral discourse. The only difference between the two phases in this respect is that while the sentencing phase is entirely moral, the guilt phase is only partly moral. According to the empirical study mentioned above, nearly 65 percent of the jurors who were interviewed “reported discussing their feelings about the right punishment during the . . . guilt phase deliberations.”38 Technically, a jury is supposed to reflect during the guilt phase of a trial only on the issue of the defendant’s guilt that has to be proven beyond a reasonable doubt. Despite this, the jury is exposed to a wide variety of arguments from the prosecution concerning victim impact statements, the personal character of the offender, moral outrage about the nature of the crime, and so on that have little to do with the actual guilt of the offender. In violation of the legal idea of the guilt phase, the prosecution tries to direct the jury’s attention away from this amoral question to the question of what punishment is morally deserved. And this obviously works quite well. The prosecution typically stresses the moral aspects of the case even during the guilt phase in order to obtain a guilty verdict.
Moral polarization is not less effective in obtaining a guilty verdict than in obtaining a death sentence: “Emotional arguments by lawyers, pressures from the mass media, and personal disagreements within the jury room often seem to distort jury decision making.”39 The emotional arguments mentioned here are in fact mainly moral arguments. The jury’s emotions are stirred and manipulated by the prosecution and the press. Moral outrage is as good a rhetorical weapon in the guilt phase as in the sentencing phase. Just as a jury in the sentencing phase may impose a death penalty on a defendant on moral grounds, it may impose a guilty verdict in the guilt phase for the same reason. It is an illusion that the guilt phase is morally clean and only focuses on fact-finding.
Since the death penalty in the United States is seen as morally necessary in the context of retribution and closure, every capital punishment case there is morally tainted from the beginning. Once the prosecution decides to seek the death penalty it has already, for all practical purposes, introduced a moral framework into the case. Since the death penalty is not so much about criminals as it is about evildoers, no phase of the trial can be concerned only with the amoral facts—moral facts play a decisive role throughout the whole trial. In my view this is probably a major reason for the extent of wrongful convictions in capital punishment cases. These cases, more than any other type, are inherently infected by morality that may well make reasonable doubt a moral matter rather than a matter of hard evidence.
The now anachronistic U.S. jury system invites excessive moral discourse and a limitation of legal discourse. The jury members are not legal experts, so the prosecution and defense fight for the jury’s moral approval. This is, in varying degrees, true for every trial decided by jury. Cases that involve the death penalty are highly moral from the beginning, and so tend to be among the most moral and least legal of trials. Therefore, arguably, they are more prone to legal errors than others.
The following passage is from a speech by the prosecution to the jury in the case of Kerry Max Cook. It led to his wrongful conviction—a conviction based on shaky evidence, and put him on death row for twenty-two years. . Finally, a DNA analysis proved his innocence. The quote is taken from the play The Exonerated. According to the authors “with a few exceptions, each spoken word in this play comes from the public record—legal documents, court transcripts, letters—or from an interview with an exonerated person.”40 I thus assume that the following passage is authentic:
Ladies and Gentlemen of the Jury. I would be remiss in my duty if I did not show you every last grotesque detail because the killer sits right before you in this courtroom and it is time for twelve good people from this country to put that man on the scrap heap of humanity where he belongs. He has a warped perversion and he will not reason with you. The victim was a young woman just beginning to realize her dreams and he butchered her body. This is the kind of sick perversion that turns Kerry Max Cook on. You people have no right to even submit prison guards to the kind of risk that man poses. Think about it. Do you want to give this pervert his butcher knife back? Now, we must look upon it as putting a sick animal to sleep. Kerry Max Cook has forfeited his right to walk among us. He no longer has rights. So let’s let all the freaks and perverts and murderous homosexuals of the world know what we do with them in a court of justice. That we take their lives.41
In this case, “twelve good people from this country” did their moral duty and put Mr. Cook “on the scrap heap of humanity.” They did what the prosecution asked them to do, namely let “all the freaks and perverts and murderous homosexuals of the world know what we do with them in a court of justice. That we take their lives.” This is indeed what, in the United States, is done in a court of justice. The question I pose here is, Are these truly courts of legal justice or are they instead courts of a morally infected justice?
The main hypothesis of this chapter is that morality is not a solution to but part of the problem of capital punishment in the United States. A possible counterargument would be: But aren’t there also moral mechanisms within the U.S. penal process that are against the death penalty? There is the right of state governors to grant clemency to convicted offenders or even a moratorium on executions altogether. Isn’t this a way in which morality corrects itself? But the opposite seems to be the case. Currently, moral reasoning is overwhelmingly used to justify not clemency, but the refusal to grant clemency or declare a moratorium. The current function of moral discourse with respect to clemency is not to exert it, but to prevent it. In other words: Clemency is, in contemporary American death penalty rhetoric, typically depicted as less moral than retribution. There has been a “nothing if not spectacular” decline in executive clemency since 1977.42 I presume that the reason for this is the triumph of retributivist morality.
Executive clemency has to be granted by politicians. It is, strictly speaking, not a legal, but a political act. Since politicians desire to be elected or reelected, they tend to present themselves in line with the dominant moral discourse in their constituency. If they do not do this, they run a political risk. The death penalty has been consistently favored by a large majority of Americans during the past fifty years, and its current popularity is immediately connected with a retributivist morality. Retribution and closure are seen as the most important moral bases for the death penalty. A politician who grants executive clemency will thus be seen as either immoral or at least as not moral enough, particularly in the mass media where the death penalty enjoys a high moral prestige. Stuart Banner writes in his history of capital punishment in America: “For an elected official to disagree with that sentiment in public was often tantamount to giving up hope of continuing one’s career. The most visible example took place during the 1988 presidential election, when Michael Dukakis was widely believed to have lost any chance of winning after he emphasized his opposition to capital punishment during a debate against George Bush. Four years later, in the midst of the 1992 campaign, Bill Clinton made it a point to return to Arkansas to sign the death warrant for Ricky Rector, a brain-damaged inmate so oblivious to his fate that he planned to save the dessert from his last meal to eat after his execution.”43
With respect to moratoriums, Franklin E. Zimring reports the following case: “In Nebraska, the state legislature enacted a memorandum on executions in 1999 pending study of the fairness and reliability of that state’s death penalty system. In vetoing the moratorium law, Governor Michael Johanns tells us: ? feel strongly that part of my role as Governor is to do all I can to carry out the law for the benefit of the victims and their families. . . . The moratorium would be just one more roadblock to bringing closure for them.’ “44
Machiavelli remarked that “a prince must want to have a reputation for compassion rather than for cruelty.”45 But what public opinion considers compassionate or cruel is highly contingent. There were times when a political figure would appear compassionate if he granted clemency to a person about to be executed. This seems to have been the case in the United States when executive clemency was relatively frequent (i.e., before 1976). Today, a politician is seen as compassionate if he does not grant clemency, compassionate not to the offender, of course, but to the victims. In accordance with the morality of retribution, ethical compassion is demonstrated by not being “cruel” to victims by halting an execution. There is nothing in morality or compassion that would necessarily lead to an anti–death penalty view.
Larry Myers presents an interesting account of the futile legal efforts to have the death penalty verdict for Herbert Lamont Otey commuted into a sentence of life without parole. The details of the case are quite fascinating but I focus here only on its political and moral aspects. The whole case was highly politicized and attracted considerable media attention. Attorney General Stenberg, a staunch supporter of the death penalty, “occasionally used the victim’s family members standing behind him as a backdrop for his television press conferences.” The clemency process had turned into a political and moral mass media show, and this show had little to do with the law. According to Myers, Otey said to a friend a week before his execution: “If I die, it will be a political killing.”46 Of course, he was right. But it was a political killing for moral reasons. In this case, both the law and politics were overpowered by moral communication.
The current U.S. position on clemency morality leads us back to the one who started it all, the moral metaphysician Immanuel Kant. With him we find the blueprint for the contemporary attitude toward executive clemency. The right to grant executive clemency, according to Kant, has no place in a truly moral law. For Kant it is highly unjust.47 If one reflects on the cases outlined above, it seems that U.S. governors share his perspective. Maybe they should abolish the clemency process altogether since it is, given the Kantian retributive moral imperative, immoral to begin with.