What do Murderers Deserve?

In a responsible society, the death penalty has its virtues
by David Gelernter, from Commentary
March-April 1999
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A Texas woman, Karla Faye Tucker, murdered two people with a pickax, 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. 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 wrote: “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.”

When a murder takes place, the community is obliged 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. 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.

Of course, we could make the same point less emphatically, by locking up murderers for life. The question then becomes: Is the death penalty overdoing it?

The answer might be yes if we were a community in which murder was a shocking anomaly. But we are not. “One can guesstimate,” writes the criminologist and political scientist John J. DiIulio Jr., “that we are nearing or may already have passed the day when 500,000 murderers, convicted and undetected, are living in American society.”

DiIulio's statistics show an approach to murder so casual as to be depraved. 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.

This is an old story. Cain murders Abel, and is brought in for questioning: “Where is Abel, your brother?” The suspect's response: “What am I, my brother's keeper?” It is one of the first human statements in the Bible; voiced here by a deeply interested party, it nonetheless expresses a powerful and universal inclination. Why mess in other people's problems?

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 is a moral triumph still basic to our integrity, and it should never be taken for granted. By executing murderers, the community reaffirms this moral understanding and restates the truth that absolute evil exists and must be punished.

On the whole, we are doing a disgracefully bad job of administering the death penalty. We are divided and confused: The community at large strongly favors capital punishment; the cultural elite is strongly against it. Consequently, our attempts to speak with assurance as a community sound like a man fighting off a chokehold as he talks. But a community as cavalier about murder as we are has no right to back down. The fact that we are botching things does not entitle us to give up.

Opponents of capital punishment describe it as a surrender to emotions—to grief, rage, fear, blood lust. For most supporters of the death penalty, this is 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. 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 no longer feel that obligation; we have urged one another to switch off our moral faculties: “Don't be judgmental!” Many of us are no longer sure evil even exists. The cultural elite oppose executions not (I think) because they abhor killing more than others do, but because the death penalty represents moral certainty, and doubt is the black-lung disease of the intelligentsia—an occupational hazard now inflicted on the whole culture.

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. If that is true, we would still have had no business forgiving her, or forgiving any murderer. As theologian 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.

I would 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.

As for Kaczynski, the prosecutors 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 and murderer as a tragic abdication of moral responsibility. The community was called on to speak unambiguously. It flubbed its lines, shrugged its shoulders, and walked away.

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 in which capital punishment is no longer the necessary response to deliberate murder may exist. America today is not one of them.

David Gelernter is the author, most recently, of Machine Beauty (Basic Books, 1998). From Commentary (April 1998). Subscriptions: $45/yr. (12 issues) from the American Jewish Committee, 165 E. 56th St., New York, NY 10022.


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