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When Criminals Deserve To Die

November 12, 2009

Retribution.  The idea that society punishes criminals in order to right a moral wrong, coercing them into paying back their debt to society.  Though utilitarian calculus or rehabilitation largely overshadow these ideas in academia, no theory has yet found a way to eliminate our gut instinct that criminals should get what they deserve.

This instinct likely motivated, in part, the U.S. Supreme Court’s and Gov. Kaine of Virginia’s decision not to stay the execution of John Muhammad, the same day the President flied to Fort Hood to honor the victims of Army psychiatrist Nidal Hasan’s monstrous mass killings last week.

Muhammad was killed by lethal injection at 9 pm Tuesday, and the same fate likely awaits Hasan after his inevitable court martial sometime in the near future.  Whenever a prominent case results in a death sentence, it should give the nation pause to consider whether the state’s taking the life of another human being in our name is really necessary or justified.

It’s an issue I’ve long considered and kept my reasons for dormant for some time now.  My views probably piss off a lot of people on either side of the debate.  But one conclusion is clear to me – the men directly responsible for the D.C. Sniper Shootings and Fort Hood Massacre absolutely deserve the death penalty.  Justice demands that crimes of this nature be punished by the ultimate punishment.  However, due to the severity of the measure, we should limit its application only to similarly heinous crimes.

As an intellectual exercise, I believe this position represents the best counter-argument to death penalty abolitionists.  What I’d like to accomplish with this post is to put forth the strongest argument for why these men (and others who committed similarly heinous crimes) deserve to be put to death as an expression of retribution for their actions.

(Warning: this is extremely long for a blog post, but if you are at all interested in this issue it’s probably worth it.)

First off, what I am not proposing.

Am I arguing that the death penalty should ever be used when there is a sliver of actual, rather than simply legal doubt?  No.  The chief executive has a moral responsibility to act as a life preserver.  In death penalty jurisdictions, the clemency power is arguably the most important function of the governor, for this alone has the greatest impact on the life or death of an individual under his or her charge to protect.  We should force governors to personally review the files of each prisoner on death row and make public statements explaining why they believe sending a person to death serves the public interest.  I would even argue that death penalty sentencing require a standard higher than “beyond a reasonable doubt.”  So this conception of a justified death penalty is extremely limited, albeit necessary, in scope and application.

Instead, the death penalty should be used only when all of these conditions are met 1) the crime is mass murder 2) the perpetrator intensely planned or deliberated 3) the murders were done in such a heinous way as to be unimaginably horrifying 4) the murders caused panic and paranoia, threatening our way of life.

The death penalty should only be used on mass murderers for two reasons.  The first is practical.  The death sentence is an irreversible mistake.  We simply cannot guarantee the level of evidential certainty required to put a person to death for the killing of only one or two people.  The patterns aren’t there, the motives can’t be totally clear, and DNA evidence can be faked or used mistakenly.  On the other hand, mass murder leaves a paper trail, witnesses, and enough missteps along the way that we generally catch the killer red-handed.  Hasan was caught with the same rifle used to kill 10 people according to ballistics tests, the computer of his first victim, and a map program marking ‘skull and crossbones’ where previous killings had taken place.  You don’t generally get that kind of evidence with your run-of-the-mill first degree murder.

Furthermore, the death penalty is too harsh a punishment on people who have only killed once, or even twice.  Often, murders are mistakes in judgment or temporary rage.  They occur under very unique circumstances.  While a murder certainly shows in someone a propensity to take another life, incapacitating her in prison should be enough to protect society from her further misdeeds.  Mass murder is also rare enough that it limits the scope of the death penalty to the truly exceptionally disgusting acts that make the punishment a symbol of moral condemnation rather than a clinical means to an end.

Why is it important that the criminal plan or deliberate?  The deliberation shows in him a uniquely immoral heart or wicked mind.  Over the course of months or even years, people like Timothy McVeigh or Hasan had the opportunity to consider the impact their actions would have on innocent people.  They were aware of the risks of capture and went ahead with their plans anyway.  They took advantage of the freedoms afforded to law abiding citizens and repaid us with a total disregard for any of the rules, moral or legal, by which the rest of us are bound.  In essence, they are the most culpable of the culpable.  There is no possible excuse that their actions were accidents, fits of passion, or out of character.

The third standard helps elucidate what makes these crimes unique enough to justify the severity of the death penalty.   Mass shootings are peculiarly deserving of punishment because the gunmen had an opportunity to stop after each additional life taken.  Each pull of the trigger came with a new decision to indiscriminately kill.  The moral and ethical choice was renewed at each moment Hasan decided not to turn or do himself in.  Moreover, a person who makes a bomb does so knowing that dozens of people will lose their lives as a result.  That a person is able to conceive of the idea and plot it out makes one extremely dangerous.  To actually follow through with it is so exceptionally evil and wrong that it demands an exceptionally severe response.

Crimes like these take a toll on our social psyche.  It takes an especially twisted mind to go up into a bell tower and use a sniper rifle to mow down coeds.  Or to use fertilizer to blow up a federal office building.  The inventiveness and creativity of the crimes are uniquely harmful to us because they introduce new risks, desensitize us to future acts of violence, and traumatize our ability to think of human beings as inherently good creatures.  Our psychiatrists are not now close confidants, but close-confidants-that-just-might-be-plotting-to-set-fire-to-seven-churches.  Anyone could be suspect; our neighbors are potential enemies.  This effect is unique to particularly heinous attacks, as they thrust upon us a previously unrecognizable darkness in our humanity.

Don’t the methods used themselves show that people like McVeigh or Hasan are insane, and should be shown mercy?  This begs the question.  Only a crazy person would blow up a building.  Why?  Because it’s crazy to blow up a building.  Why? Because you would only be capable of this if you were crazy.  I’m not convinced.  In each of these cases, the plotters were able to function at a level high enough to purchase or make weapons and evade detection.  Some fashioned themselves freedom fighters; political beliefs motivated their intent.

An incapacity for empathy is not insanity – it’s a defect. A personality defect like sociopathy doesn’t make someone insane to the degree that they would literally have no conception of the possible consequences of their actions.  McVeigh understood people would die, and he understood that if he were caught bad things were going to happen to him – he just didn’t care.  Coldheartedness ought to be condemned and punished, not sympathized with.

The last, and most important, standard is that the killings created such fear and paranoia that they have threatened our way of life.  By way of life, I don’t mean something as abstract as in the previous paragraph.  Rather, I mean that the killer designs to undermine our daily routines, our ability to function, and our basic trust in the others we interact with not to bring us harm for reasons totally out of our control.  The murderers in these cases all have one common goal: to terrorize.

This is opposed to the highly personal motivations behind a typical killing.  When a bar fight gets out of hand and one of the brawlers ends up impaled by a pool cue, we are predictably mortified.  That bar will likely never gain back its reputation.  But none of us are particularly scared of going to bars in general.  Or afraid of pool halls.  The crime is much too context dependent for us to form fears that would significantly alter the way we go about our lives.

Not so with the Oklahoma City bombings.  When reported that McVeigh had placed his truck beneath a day care center, claiming the lives of 19 children, what mother in the country with kids in a federal office building’s playpen didn’t consider pulling their kids out in case something like that happened again?  Which government official felt safe simply showing up to work the next day in case it was just the first wave?  When Muhammad was on the loose, who didn’t look for cover when he stepped outside in Northern Virginia?  Or feared for her life just minding her own business driving on the highways?

Hasan may have permanently damaged the morale and cohesion of military units now paranoid that one of their own might go on a murderous rampage.  What place should feel safer than the barracks of a military base located in the United States?  If an installation as heavily armed as Fort Hood can’t stop a doctor from killing 12 and injuring over 30, what hope do the rest of us have in a shopping mall, church, or city square?

What these cases do to us is demolish the illusion that society in any way protects us against the violence of a highly determined and organized individual.  The motivation and the true intended victim is society.  The goal is panic and general paranoia, the breakdown of order.  These harms have drastic psychological and economic impacts that are as immeasurable as they are impossible to solve completely.  Each of the criminals I’ve used as examples attempted to prey on our animal-level instincts, risking the health of our communities and the future preservation of our liberties (we generally overreact and pass insane, ineffective counter-measures as in the Columbine shootings) to further some bizarre interest.  To McVeigh, Hasan, or Muhammad, the specific victims were inconsequential.  They could have been replaced by any names or faces and it wouldn’t have mattered to them.  The crimes were directed against us as a people, therefore only in these instances are we both justified and obligated to take a life in the name of the people.

My viewpoint is not without some valid counter-arguments.  The prime objection I must overcome is that it is never justified for the state to take a life.  Insert John Locke quote here.  First, if we were to take that idea to its extreme, we would not give our police the authority to use lethal force, nor could we justify the existence of the military.  Both legitimate state actions result in far, far more deaths each year than would result under my proposal.  Neither afford the deceased the opportunity for due process.  State-sponsored killing is a fact of modern society, so unless one is willing to argue for a defenseless state (maybe Costa Rica is on to something, probably not) one must admit that at least in some circumstances it is ok for the government to take lives.

Second, the justification for both the death penalty and the military are similar – protection.  The military protects us from external existential threats, the death penalty similarly protects us from internal existential threats.  Third, mass murderers surrender their right to life by breaching the social contract.  They have chosen the way of Leviathan, so let us make the rest of their lives nasty, brutish, and short.

Fourth, the state is not playing God, in any real sense, differently than we allow doctors to play God when pulling the plug on a coma victim.  Sure, she might have a living will implying or explicitly giving the doctor consent to withdraw life support.  But how are we to know that the patient didn’t change her mind moments or even months before the accident, but before she had the chance to update her legal documents?  Or if given the opportunity while in a coma, she would choose coma over death?  If this was the case, the doctor would be killing the patient against her will.  My point is that we accept this possibility and often perform the written wishes anyway, partly out of the interests of the greater good.  If it ever justified to risk taking an innocent person’s life against her will, it is surely justified to take it from the handful of people capable of performing and actually executing mass murder.

Why isn’t life in prison enough?  Crimes at this level of enormity deserve a greater punishment than ordinary murders and justify state killing because they are crimes against society in a real rather than theoretical sense.  When a mugger accidentally kills an innocent by an errant gun shot, he does direct harm to the victim as well as his family.  Society is also harmed indirectly by the senseless loss of the victim’s contribution, and because the crime adds to the general sense of anxiety we feel about violent crime.

The difference between a murder of this character and the cases for which I believe the death penalty is justified is that the actions of the defendants have not contributed to, but created a specific and public anxiety and fear.  Not fear only of the type of crime (federal bombings, shootings at a college, sniper attacks on freeways) but fear specifically flowing from the defendant himself.  The psychic damage done to the public, the idea that one man or woman can act in such a way to give us pause whether to continue our daily routine, is of such a unique and traumatic character that nothing but the most extreme expression of condemnation could possibly suffice to make the punishment proportional to the crime.  Only taking the criminal’s life can bring about the closure society needs to heal the deep wounds caused by the rare, extraordinarily heinous actions of wicked men.

A few words on deterrence that I’m not necessarily dedicated to but I think support my position.  First, eliminating the criminal eliminates potential role models.  This deters copy cat crimes.  Second, the death penalty is final and conceivable, unlike life in prison.  The shame of death row, the idea of the poison coursing through his veins, the judge reading off the condemnation. There is no rationalizing away these consequences – no illusions of early parole, or a life in a mental institution, or being treated like a god in prison.   The unequivocal response to crimes of this nature further increases the certainty of the result.  Any criminal looking to make a statement by murdering innocents will know that the efficacy of his statement digs his or her own grave.  It therefore acts as a greater general deterrent to future acts.

Third, distinctions between murders may create a tiny incentive for a future potential serial killer to stop before he reaches the threshold of mass murder.  In states where one murder gets you the death penalty, the fugitive has no reason to discontinue her senseless violence because the punishment will be the same regardless of how many murders are committed.

Nothing I’ve said here should be construed as defending a broad application of the death penalty.  Rather, this post should function as a philosophical defense of the option to use the death penalty in exceptional cases.  Keep in mind if you respond that I am arguing for a higher standard, and I would oppose the death penalty nearly every time it has been used in Texas or Virginia over the last decade.  I am also not arguing children should ever be sentenced to death.

I am convinced that the only way to argue against my position would be to say that the death penalty is never justified on any grounds, regardless of the magnitude of the offense (number affected, damage to public psyche) and level of certainty (beyond beyond a reasonable doubt).    I welcome and look forward to your arguments, both for and against.

8 Comments leave one →
  1. Brooke permalink
    November 12, 2009 3:34 pm

    This is a well-thought-out argument, and I pretty much agree with you. I’m wondering, what are your thoughts on the punishment of serial rapists? Although I’m not sure of the statistics of how often serial rapists plan their attacks, I’m sure it must happen at least some of the time. The crime indicates the same disregard for human life, and the threat of rape is something women have to be aware of their entire lives.

    Think about that for a minute: People were paranoid about flying for what, six months or a year or so after 9/11, but these days the worry has mostly dissipated. However, every time a woman walks alone to her car in a parking garage, down a dark street by herself, through a bad neighborhood, and dozens of other situations, the threat of rape is right there, and very real — in fact, between 1 in 12 to 1 in 4 rapes occurs in parking garages. This isn’t a fear that ever goes away. Women must go their entire lives knowing that they have a 25% chance of being raped or sexually assaulted.

    “Mass murder is also rare enough that it limits the scope of the death penalty to the truly exceptionally disgusting acts that make the punishment a symbol of moral condemnation rather than a clinical means to an end.”

    The same could be said of serial rape. Although most rapes are committed by friends, relatives, and acquaintances of the victim, it’s entirely possible to detect when a criminal has been targeting women just for the sake of it.

    “An incapacity for empathy is not insanity – it’s a defect. A personality defect like sociopathy doesn’t make someone insane to the degree that they would literally have no conception of the possible consequences of their actions. … Coldheartedness ought to be condemned and punished, not sympathized with.”

    Again, I think this holds true in the case of serial rape. You’re dealing with people who know they’re hurting people and ruining lives, and yet who go ahead and do it anyway.

    The death penalty for serial rapists would have the same benefits you cited for mass murderers: eliminating role models, deterring potential serial offenders, bringing closure to victims and women who fear they could be targeted next.

    Your thoughts?

  2. J W permalink
    November 13, 2009 11:48 pm

    As you know, we disagree on this subject. While I would be prepared to argue that the capital punishment should never be applied, I think there are practical and philosophical reasons that would lead one to reject your position.

    From a practical standpoint, I think there is evidence that the ultimate penalty’s deterrent effect is limited. Spectacular horrors like the ones you mention are not committed by men who are afraid of the consequences. The deterrent effect (if it exists) would only be among those lesser crimes for which you concede death is not appropriate punishment. From a pragmatic standpoint, there is little to recommend the death penalty that does not hold also true for life without parole.

    I am certain that public hangings provided a grim lesson to potential criminals in years past, but our society has progressed beyond this practice. Even with a higher standard of evidence, it is conceivable that an innocent can be executed. There are well worn arguments about the cost of execution trials. It will not deter the heinous crimes where you would apply it.

    On philosophical grounds, it would be in every individual’s interest to remove the power of life and death from their government’s hands. You equate their crimes with attacks on the amorphous mass, demanding the ultimate sanction in return. The crime may be applied ‘socially’, but justice can only be applied on an individual basis. Each citizen regards the threat of mistaken conviction as utterly remote, yet when faced with prosecution every person would demand full quarter to defend themselves.

    A civilized society no longer needs a parade of corpses to justify the power of the state to force cohesion and obedience. I am sure the sight of a wretched old man in shackles will have a similar effect as a the serene body of an executed lunatic, without having to resort to state sanctioned murder.

  3. Ellie permalink
    November 14, 2009 5:25 am

    I don’t think the social paranoia argument works. It seems like the issue here is not necessarily a question of quantity, but proximity. Ft. Hood killings will in all likelihood leave public’s perceived threat level relatively at ease due to the illusion that we don’t live on military bases, therefore it can’t happen to us. Likewise for the collectively induced myth that, for instance, St. Louis is safe because all the murders (including multiple murders at the hand of one person) only happen across the river in East St Louis.
    Panic sets in with the awareness that murder can happen anywhere and at random, not merely at random at the hand of one person. One should account for precedent- an isolated mass killing spree does less to incite panic than the accumulation of multiple, small scale murders happening everywhere, which necessitates multiple actors.

  4. David permalink
    December 30, 2009 6:36 pm

    At some level, punishment may be a deterrent of some criminal behavior; it is not likely a deterrent to most criminal behavior. Instead, most punishments are retribution as David Ogles points out. However, because punishment cannot be a deterrent for most crimes that would lead one to conclude that criminals should not be allowed to live in our law abiding society; criminals will return to recidivist criminal behavior. In essence, locking our criminals away from society is our practice. When a recidivous criminal is freed, especially on parole or probation, and he commits another heinous crime, society is angered and wants a greater level of retribution- lock them away forever or kill them. I conclude that removing criminals from society whether through incarceration or death is an equal result for the law abiding society, excluding cost. (We should not consider the criminal when calculating the sentence; we should only consider the victim and the law abiding society.) To lessen the financial drain on the society, it should employ the death penalty as liberally as possible. In other words, a law abiding society should employ Draconian law and increase the application of the death penalty to a maximum result.


  1. When Criminals Deserve To Die II – Serial Rape? « Generalissimo
  2. When Criminals Deserve To Die, Part III – Proximity Effect « Generalissimo
  3. When Criminals Deserve To Die, Part IV – Deterrence and Innocence « Generalissimo

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