Monday, January 20, 2014

Never Forgive, Never Forget, Never Pretend It's Easy

It's not revenge, it's retribution.  Carefully parsed and calculated.  Based not on getting even but on payback.  Dispassionate, though driven by hatred.  Just as long as we're sure.  Really, really sure. Which we can be and if we're wrong, well, that's a small price to pay.

OK, I'm not being fair.

On the back cover, David Dow says that the "argument is one that any death penalty supporter will identify with, but more importantly, it's one any opponent must answer."  Dow also says of Robert Blecker that he "is probably the most articulate death penalty supporter around, and easily the most honest."  Allowing some hyperbole for what is, after all, a blurb (and one by someone who is specifically thanked in the acknowledgements as "my sometime public adversary, [who] gave me a model with his own moving memoir"), that may just be true.

In its simplest formulation, one he repeats with some regularity, in his book, The Death of Punishment: Searching for Justice Among the Worst of the Worst, Blecker has a single point.
The past counts.
To forget that, is to trivialize.  We praise, so must we blame.  We honor, so must we . . . .  Well, that's where it gets tricky.  The antonym of honor is something like revile.  But that's not Blecker's choice.  He chooses hate. And really, it all follows from that. 

It's a moral position.  Morality requires hatred of evil and, specifically, those who both do evil and are in fact evil.  Those who do the worst things and are themselves the worst people.  Morality requires that they be killed.  

It's about Justice with an uppercase J.  I've said before and repeatedly that I don't know what that is (though I can recognize injustice).  Becker's on a different plane. He knows what Justice is.  It's the cry of the dead for death in return.  And he can recognize it, at least some of the time, with absolute certainty.
"On every question there are two sides," the Sophists claimed and still do.  I knew better.  I had always known better.  Justice wasn't simply a matter of opinion.  Whatever "progressives" might proclaim, Adolph Hitler, Charles Manson, and Richard Speck were evil and deserved to die.  That was moral fact.
Justice demands payment in kind - well, no, that's not right.  It doesn't demand payment in kind or it would require, in some cases, lingering torture.  Justice demands quick but painful death - following a period of confinement as horrific as the 8th Amendment would allow.  Of course, if you start there, you end up there.

There may be a mistake.  Every effort should be made to avoid it.  Every possibility of error - both on guilt and on whether this or that Hitler or Manson wannabe is actually the worst of the worst who did the worst things - should be indulged.  No screw ups except those that are beyond human capacity to recognize as plausible.  But then?
Sometimes innocent persons must get hurt for the public good.  Sometimes we must reluctantly risk innocent lives for the sake of justice.
Which has the virtue at least of honesty.

It's easy to dismiss Blecker as a self-satisfied, egotistical prig who simply knows where we who oppose execution are deluded.  That's not wrong, but it's also not fair.  Blecker does what an honest thinker does.  He challenges himself.

Blecker confronts his own certainty, his own sense that the only thing that matters is what whoever it was did back then.  And so he tells at some length of his relationship with Daryl Holton, on death row in Tennessee for the murder of his four children.  

Holton is, at least in Becker's account, accepting.  He opposed efforts by his attorneys to fight his death sentence.  He deserved to die because the jury said so.  The law is what it is.  He insisted he was competent, insisted he should die - chose the electric chair rather than the gurney.  He was in charge, taking the responsibility the jury said was his.

Blecker interviewed him repeatedly, corresponded with him, argued with him. Tried again and again to get him to admit that he was a monster.  Or that he had remorse.  
Daryl looked up at me--looked me right in the eyes. "You're looking for remorse," he said quietly, "but you're not getting it."  The silence between us sunk in, as his words echoed and my resentment built.  "Why would  I express remorse to you? You have some illegitimate emotional investment in my children who you never met.  it's one thing to act from a civic sense of duty.  But your imagined emotional connection to them is unreal, unhealthy, and illegitimate.
. . . We sat and stared at each other.  I felt sorry for him.  Then I hated him.  Why would he not show remorse? Why did I need that?
Grudgingly, Blecker concluded that in many respects he liked the guy, that he was, ultimately, a friend. That left him with some ambivalence.  I mean, it's hard to believe that someone you've come to know and like and respect, to call a friend for godssake, should be killed.  Yet that's absolutely where he ended up.
Perhaps we did make a mistake by executing Daryl Holton.  It disturbs me deeply.  But in the end, it remains a price I'm willing to pay for justice.
The odd mistake, no matter how sure Blecker is.  Well, yeah, but omelets require broken eggs.  And it's not just executions.  Prisons for bad people should be hellholes where the horror is unrelieved.  But that would put prison guards at more risk, Blecker's told by a Warden.  His response?
Make life as unpleasant as you can.  Legally.  Even if you endanger your staff slightly more.
Justice is a harsh mistress. Morality is tough.  But then Abraham was prepared to kill his beloved son because his god told him to.

Daryl Holton's is far from the most horrific story Blecker tells.  He befriends Dr. Petit and spends time watching the trial of Joshua Komisarjevsky, cheering the death sentence but bemoaning his conviction that it's unlikely to be carried out.  He talks about Andres Behring Breivik, mass murderer who will serve only 21 years in prison - and those without being tortured.  (In fact, it's likely that Breivik will serve considerably more than 21 years - possibly the rest  of his life.  Blecker ignores the provision of Norwegian law that allows the sentence to be extended for 5-year intervals, repeatedly, should Breivik be considered still dangerous at the end of his sentence.)

And he goes to Germany to teach, a place he swore he'd never go because the Germans must never be forgiven for the holocaust.  But he goes, to teach the young of that non-capital-punishment nation that they should kill.  And teach he does.  But he also listens.  He listens, for instance, to Andrew Hammel who's also there teaching and whom he debates.
I personally think Breivik should be strung up from a tree," And Hammel candidly admitted in response. "I think he deserves to die--metaphysically," he continued.  "he's about the guiltiest criminal ever.  Only I don't think the state has a right to kill him.  [Applause] I just don't trust the state enough to do that.  It's really hard because Breivik is so heinous.  But we're not going to sink to his level  We protect his human dignity not for his sake but for our sake.  We treat him better than he deserves because of what it says about us as a society, about our ability to overcome these completely understandable and natural feelings of vengeance and hatred. 
Blecker understands the force and strength of Hammel's argument and rejects it.  We shouldn't "overcome those natural feelings of vengeance and hatred."  We should, he says, embrace them.

Blecker's is a serious book by a serious guy.  It deserves to be taken seriously.  But ultimately it needs to be understood not as an argument (and it is, frankly, weakest as an argument) but as a declaration of faith.  A faith that Blecker challenges, that he confronts, that he considers, but that he holds, well, faithfully.

In an Appendix he calls "Countering the Abolitionists: Their Arguments, Our Replies," Blecker responds, with varied success, to simplistic versions of arguments some (but by no means all) abolitionists offer.  It's at the end that we get to the nub.
10. IT'S JUST WRONG
Argue all you like, we're still sure.
Countering the ClaimAt last we reach common ground.  We too feel just as certain.
As I say, Blecker's isn't really an argument.  His insistence that he's after retribution rather than revenge?  He never explains how they differ.  His insistence that Justice must be inflicted, albeit carefully?  Because it must.  He just knows.

We must punish, not merely protect.  We must never forgive, never forget, never let up.

If you read the comments to the news stories on how Ohio seemingly botched the execution of Dennis McGuire last week, you'll see the hatred and vituperation:  Who cares about that piece of shit? the commenters write.  He raped and murdered.  He should suffer.

I said, when I wrote about the execution,
If that's justice, I don't want any part of it.
Blecker cares about that piece of shit.  And still he wants that sort of justice, even when it's hard. That's no small thing, really.  It's worthy of some respect whether you agree or not.



10 comments:

  1. Is his position really worthy of some respect? I don't think so. It's a reversion to the most primitive aspects of human thought, and we can't afford that anymore.

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  2. I don't have any respect for the idea of retribution (though I certainly understand the impulse. I have respect for Blecker for making the effort to engage seriously with the consequences of his position and with those who don't share it. And I respect his recognition of his own ambivalence.

    If I didn't make that clear, well, I should have.

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  3. I received a review copy of Blecker's book as well, and I've been sufficiently troubled by it that I wasn't prepared to review it. Given his thoughtfulness about many aspects of retribution, the friendships he developed in prison and the length and depth of his experience with killers, one would think he could provide sometime, whether tangible or theoretical, to support his unshakeable base conviction that killing is necessary. Yet, there's nothing. It simply is because he is absolutely certain it is.

    I reread the opening of his book, and suspect there is some childhood trauma in there that explains his inability to get past this almost compulsive need to kill. Despite his intelligence, he is ultimately empty of justification for his bizarre adoration of retribution, or to be more accurate, his need to see killers killed.

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    1. Yep. It's cause he just knows. Which is scary.

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    2. Ultimately, that's all he has. There is nothing else there.

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  4. So someone who rapes and murders should not suffer? There should be no consequences whatsoever? If it was your wife that was sodomized and knifed you'd want to kill the guy too. Yet you sit in judgement over people that are actually living that nightmare, telling them that it is not the rapist and murderer who is a monster but them.

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    1. I don't believe that I've said the rapist and murderers aren't monsters but those who condemn them are. And I would want personally to rip the lungs out of someone who did to my family. But wanting to do it and thinking it should be done are two different things.

      We should strive to be better than our basest instincts. And punishment which is aimed at neither rehabilitation nor protection is just striking back. I'd like to think we can try to be better than that.

      Becker, of course disagrees with me. S do you, I guess, which is certainly your privilege, but doesn't just make me change my views.

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  5. "Make life as unpleasant as you can. Legally. Even if you endanger your staff slightly more."

    Has this man no compassion for the innocent? Not the innocent in prison (he says you gotta break some eggs) but the innocents out in the world who will become victims of released prisoners who have never been treated decently, never witnessed kindness or mercy, never been shown the value of participation in society. He's not only willing to risk harming the innocent through error (an admirably honest position), he wants retribution so bad that he doesn't seem to care who else is harmed.

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    1. You're assuming those folks will be released some day.

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  6. Well, first of all, I always thought the (presumably mistaken) execution of the innocent was not a good argument against the death penalty, any more than the (again, presumably mistaken) incarceration of the innocent is an argument against incarceration. Despite the SCOTUS' position, death is not 'different' in this respect and at least in my opinion treating it that way has contributed to incoherence in the justice system, and in particular the criminal justice system. And that doesn't serve anyone well.

    Second, I suppose the Abraham and Isaac story just seems a mindlessly cruel anecdote unless you understand the Christian take on it: that is, Abraham is willing to sacrifice his most cherished son for God, and so God reciprocates. Which is not to say you should believe any of that, but it does make the allegation that the whole story is just mindless cruelty a bit unfair.

    I think the argument that failing or refusing to punish trivializes wrongdoing carries weight. It also has problems.

    Bottom line is that for the most part, you've persuaded me. I'm not sure I'm happy about that, but I do enjoy reading your stuff over here. I don't write nearly as well:

    http://strikelawyer.wordpress.com/2014/01/21/extending-the-discussion/

    At least most of the time I don't.

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