What Do Murderers Deserve?
No civilized nation ever takes the death penalty for granted; two recent cases force us to consider it yet again. A Texas woman, Karla Faye Tucker, murdered two people with a pickaxe, was said to have repented in prison, and was put to death. A Montana man, Theodore Kaczynski, murdered three people with mail bombs, did not repent, and struck a bargain with the Justice Department; he pleaded guilty and will not be executed. (He also attempted to murder others and succeeded in wounding some, myself included.) Why did we execute the penitent and spare the impenitent? However we answer this question, we surely have a duty to ask it.
And we ask it—I do, anyway—with a sinking feeling, because in modern America, moral upside-downness is a specialty of the house. To eliminate race prejudice we discriminate by race. We promote the cultural assimilation of immigrant children by denying them schooling in English. We throw honest citizens in jail for child abuse, relying on testimony so phony any child could see through it. Orgasm studies are okay in public high schools but the Ten Commandments are not. We make a point of admiring manly women and womanly men. None of which has anything to do with capital punishment directly, but it all obliges us to approach any question about morality in modern America in the larger context of this country’s desperate confusion about elementary distinctions.
Why execute murderers? To deter? To avenge? Supporters of the death penalty often give the first answer, opponents the second. But neither can be the whole truth. If our main goal were deterring crime, we would insist on public executions—which are not on the political agenda, and not an item that many Americans are interested in promoting. If our main goal were vengeance, we would allow the grieving parties to decide the murderer’s fate; if the victim had no family or friends to feel vengeful on his behalf, we would call the whole thing off.
In fact, we execute murderers in order to make a communal proclamation: that murder is intolerable. A deliberate murderer embodies evil so terrible that it defiles the community. Thus the late social philosopher Robert Nisbet: “Until a catharsis has been effected through trial, through the finding of guilt and then punishment, the community is anxious, fearful, apprehensive, and above all, contaminated.”
Individual citizens have a right and sometimes a duty to speak. A community has the right, too, and sometimes the duty. The community certifies births and deaths, creates marriages, educates children, fights invaders. In laws, deeds, and ceremonies it lays down the boundary lines of civilized life, lines that are constantly getting scuffed and needing renewal.
When a murder takes place, the community is obliged, whether it feels like it or not, to clear its throat and step up to the microphone. Every murder demands a communal response. Among possible responses, the death penalty is uniquely powerful because it is permanent and can never be retracted or overturned. An execution forces the community to assume forever the burden of moral certainty; it is a form of absolute speech that allows no waffling or equivocation. Deliberate murder, the community announces, is absolutely evil and absolutely intolerable, period.
Of course, we could make the same point less emphatically if we wanted to—for example, by locking up murderers for life (as we sometimes do). The question then becomes: is the death penalty overdoing it? Should we make a less forceful proclamation instead?
The answer might be yes if we were a community in which murder was a shocking anomaly and thus in effect a solved problem. But we are not. Our big cities are full of murderers at large. “One can guesstimate,” writes the criminologist and political scientist John J. Dilulio, Jr., “that we are nearing or may already have passed the day when 500,000 murderers, convicted and undetected, are living in American society.”
Dilulio’s statistics show an approach to murder so casual as to be depraved. We are reverting to a pre-civilized state of nature. Our natural bent in the face of murder is not to avenge the crime but to shrug it off, except in those rare cases when our own near and dear are involved. (And even then, it depends.)
This is an old story. Cain murders Abel and is brought in for questioning: where is Abel, your brother? The suspect’s response: how should I know? “What am I, my brother’s keeper?” It is one of the very first statements attributed to mankind in the Bible; voiced here by an interested party, it nonetheless expresses a powerful and universal inclination. Why mess in other people’s problems? And murder is always, in the most immediate sense, someone else’s problem, because the injured party is dead.
Murder in primitive societies called for a private settling of scores. The community as a whole stayed out of it. For murder to count, as it does in the Bible, as a crime not merely against one man but against the whole community and against God—that was a moral triumph that is still basic to our integrity, and that is never to be taken for granted. By executing murderers, the community reaffirms this moral understanding by restating the truth that absolute evil exists and must be punished.
Granted (some people say), the death penalty is a communal proclamation; it is nevertheless an incoherent one. If our goal is to affirm that human life is more precious than anything else, how can we make such a declaration by destroying life?
But declaring that human life is more precious than anything else is not our goal in imposing the death penalty. Nor is the proposition true. The founding fathers pledged their lives (and fortunes and sacred honor) to the cause of freedom; Americans have traditionally believed that some things are more precious than life. (“Living in a sanitary age, we are getting so we place too high a value on human life—which rightfully must always come second to human ideas.” Thus E.B. White in 1938, pondering the Munich pact ensuring “peace in our time” between the Western powers and Hitler.) The point of capital punishment is not to pronounce on life in general but on the crime of murder.
Which is not to say that the sanctity of human life does not enter the picture. Taking a life, says the Talmud (in the course of discussing Cain and Abel), is equivalent to destroying a whole world. The rabbis used this statement to make a double point: to tell us why murder is the gravest of crimes, and to warn against false testimony in a murder trial. But to believe in the sanctity of human life does not mean, and the Talmud does not say it means, that capital punishment is ruled out.
A newer objection grows out of the seemingly random way in which we apply capital punishment. The death penalty might be a reasonable communal proclamation in principle, some critics say, but it has become so garbled in practice that it has lost all significance and ought to be dropped. Dilulio writes that “the ratio of persons murdered to persons executed for murder from 1977 to 1996 was in the ballpark of 1,000 to 1”; the death penalty has become in his view “arbitrary and capricious,” a “state lottery” that is “unjust both as a matter of Judeo-Christian ethics and as a matter of American citizenship.”
We can grant that, on the whole, we are doing a disgracefully bad job of administering the death penalty. After all, we are divided and confused on the issue. The community at large is strongly in favor of capital punishment; the cultural elite is strongly against it. Our attempts to speak with assurance as a community come out sounding in consequence like a man who is fighting off a choke-hold as he talks. But a community as cavalier about murder as we are has no right to back down. That we are botching things does not entitle us to give up.
Opponents of capital punishment tend to describe it as a surrender to our emotions—to grief, rage, fear, blood lust. For most supporters of the death penalty, this is exactly false. Even when we resolve in principle to go ahead, we have to steel ourselves. Many of us would find it hard to kill a dog, much less a man. Endorsing capital punishment means not that we yield to our emotions but that we overcome them. (Immanuel Kant, the great advocate of the death penalty precisely on moral grounds, makes this point in his reply to the anti-capital-punishment reformer Cesare Beccaria—accusing Beccaria of being “moved by sympathetic sentimentality and an affectation of humanitarianism.”) If we favor executing murderers it is not because we want to but because, however much we do not want to, we consider ourselves obliged to.
Many Americans, of course, no longer feel that obligation. The death penalty is hard for us as a community above all because of our moral evasiveness. For at least a generation, we have urged one another to switch off our moral faculties. “Don’t be judgmental!” We have said it so many times, we are starting to believe it.
The death penalty is a proclamation about absolute evil, but many of us are no longer sure that evil even exists. We define evil out of existence by calling it “illness”—a tendency Aldous Huxley anticipated in his novel Brave New World (1932) and Robert Nisbet wrote about in 1982: “America has lost the villain, the evil one, who has now become one of the sick, the disturbed. . . . America has lost the moral value of guilt, lost it to the sickroom.”
Our refusal to look evil in the face is no casual notion; it is a powerful drive. Thus we have (for example) the terrorist Theodore Kaczynski, who planned and carried out a hugely complex campaign of violence with a clear goal in mind. It was the goal most terrorists have: to get famous and not die. He wanted public attention for his ideas about technology; he figured he could get it by attacking people with bombs.
He was right. His plan succeeded. It is hard to imagine a more compelling proof of mental competence than this planning and carrying out over decades of a complex, rational strategy. (Evil, yes; irrational, no; they are different things.) The man himself has said repeatedly that he is perfectly sane, knew what he was doing, and is proud of it.
To call such a man insane seems to me like deliberate perversity. But many people do. Some of them insist that his thoughts about technology constitute “delusions,” though every terrorist holds strong beliefs that are wrong, and many nonterrorists do, too. Some insist that sending bombs through the mail is ipso facto proof of insanity—as if the 20th century had not taught us that there is no limit to the bestiality of which sane men are capable.
Where does this perversity come from? I said earlier that the community at large favors the death penalty, but intellectuals and the cultural elite tend to oppose it. This is not (I think) because they abhor killing more than other people do, but because the death penalty represents absolute speech from a position of moral certainty, and doubt is the black-lung disease of the intelligentsia—an occupational hazard now inflicted on the culture as a whole.
American intellectuals have long differed from the broader community—particularly on religion, crime and punishment, education, family, the sexes, race relations, American history, taxes and public spending, the size and scope of government, art, the environment, and the military. (Otherwise, I suppose, they and the public have been in perfect accord.) But not until the late 60’s and 70’s were intellectuals finally in a position to act on their convictions. Whereupon they attacked the community’s moral certainties with the enthusiasm of guard dogs leaping at throats.1 The result is an American community smitten with the disease of intellectual doubt—or, in this case, self-doubt.
The failure of our schools is a consequence of our self-doubt, of our inability to tell children that learning is not fun and they are required to master certain topics whether they want to or not. The tortured history of modern American race relations grows out of our self-doubt: we passed a civil-rights act in 1964, then lost confidence immediately in our ability to make a race-blind society work; racial preferences codify our refusal to believe in our own good faith. During the late stages of the cold war, many Americans laughed at the idea that the American way was morally superior or the Soviet Union was an “evil empire”; some are still laughing. Within their own community and the American community at large, doubting intellectuals have taken refuge (as doubters often do) in bullying, to the point where many of us are now so uncomfortable at the prospect of confronting evil that we turn away and change the subject.
Returning then to the penitent woman and the impenitent man: the Karla Faye Tucker case is the harder of the two. We are told that she repented of the vicious murders she committed. If that is true, we would still have had no business forgiving her, or forgiving any murderer. As Dennis Prager has written apropos this case, only the victim is entitled to forgive, and the victim is silent. But showing mercy to penitents is part of our religious tradition, and I cannot imagine renouncing it categorically.
Why was Cain not put to death, but condemned instead to wander the earth forever? Among the answers given by the rabbis in the Midrash is that he repented. The moral category of repentance is so important, they said, that it was created before the world itself. I would therefore consider myself morally obligated to think long and hard before executing a penitent. But a true penitent would have to have renounced (as Karla Faye Tucker did) all legal attempts to overturn the original conviction. If every legal avenue has been tried and has failed, the penitence window is closed. Of course, this still leaves the difficult problem of telling counterfeit penitence from the real thing, but everything associated with capital punishment is difficult.
As for Kaczynski, the prosecutors who accepted the murderer’s plea-bargain say they got the best outcome they could, under the circumstances, and I believe them. But I also regard this failure to execute a cold-blooded impenitent terrorist murderer as a tragic abdication of moral responsibility. The tragedy lies in what, under our confused system, the prosecutors felt compelled to do. The community was called on to speak unambiguously. It flubbed its lines, shrugged its shoulders, and walked away.
Which brings me back to our moral condition as a community. I can describe our plight better in artistic than in philosophical terms. The most vivid illustrations I know of self-doubt and its consequences are the paintings and sculptures of Alberto Giacometti (who died in 1966). Giacometti was an artist of great integrity; he was consumed by intellectual and moral self-doubt, which he set down faithfully. His sculpted figures show elongated, shriveled human beings who seem corroded by acid, eaten-up to the bone, hurt and weakened past fragility nearly to death. They are painful to look at. And they are natural emblems of modern America. We ought to stick one on top of the Capitol and think it over.
In executing murderers, we declare that deliberate murder is absolutely evil and absolutely intolerable. This is a painfully difficult proclamation for a self-doubting community to make. But we dare not stop trying. Communities may exist in which capital punishment is no longer the necessary response to deliberate murder. America today is not one of them.
1 I have written about this before in “How the Intellectuals Took Over (And What to Do About It),” COMMENTARY, March 1997.