The Weekly Sift

The execution of Troy Davis on Wednesday unleashed a wave of anti-death-penalty articles (I’ll link to the best ones I found as they become relevant), and a few defenses of capital punishment (or at least of the process that found Troy Davis guilty). Some even suggested that this case would be a turning point in Americans’ support for the death penalty.

I’ve got my doubts about that, because the two sides are still talking past each other — arguing with straw men rather than saying anything that might turn an opponent around. The real issues remain in a visceral realm where they can’t be discussed because they aren’t fully verbalized.

You can tell that people are talking past each other when they affirm the same principles, but imagine that the other side is denying those principles. A productive discussion can’t even get started until those agreements are recognized. Then the real disagreements stand out rather than remaining unspoken in the background.

Here are some principles held by death-penalty advocates and opponents alike:

• Innocent life should be protected.
• The state should affirm the value and dignity of life, not undermine it.
• Actions should have consequences, and similar actions should have similar consequences.
• Murder is a horrific crime in general, and many specific murders are acts of incredible inhumanity.
• The people who loved the victim deserve our compassion.

On either side, if the bulk of your argument emphasizes one of these general claims, you’re probably just talking to yourself. No one disagrees with you. The disagreement is about where those principles lead.

Some of the surface-level disagreements concern questions that could be resolved by evidence, if anybody could gather and evaluate the evidence fairly. The biggest ones are to what extent the death penalty deters future murders, how many innocent people get convicted, and the roles that race and class play in determining who gets executed.

But the root disagreements, the ones that cause everyone to misrepresent evidence and project straw men onto each other, are very basic:

• We disagree on the continuing worth of an ancient principle of justice: Suffering pays for suffering and blood pays for blood. 
• We disagree on how to weigh the risk of punishing the innocent against the risk of insufficiently punishing the guilty.

Our arguments go round and round because these questions are not amenable to logic or evidence, no matter how much both sides wish they were.

Recognizing the agreements. A great deal of pro-death-penalty energy is devoted to horror stories about murders, as if death-penalty opponents believe that murderers are basically decent people who deserve our sympathy. (If somebody somewhere believes that, I haven’t met them.)

Similarly, death penalty advocates agree in principle that innocent people should not be convicted and that execution should not depend on the race or class of either the murderer or the victim. But they disagree about how perfectible the process is and how to balance those risks against the risk that the guilty will be insufficiently punished.

The real difficulties come with the principles that pull both ways. How should the state affirm the dignity and value of life? Those who believe blood-pays-for-blood think that not killing the murderer devalues the life of the victim. (And they project that devaluation onto DP-opponents).

But DP-opponents believe that life is affirmed at the extremes: Even the murderer should not be intentionally killed by the state; that’s how valuable life is.

Similarly, how should we protect the innocent? By deterring future murderers with the threat of death, DP-advocates say. By not executing any innocent people, DP-opponents counter.

A hidden agreement. One false assumption — that death is the worst punishment we can inflict — sneaks into the discussion and hides an area of agreement by producing a false either/or: We either should or shouldn’t inflict the worst possible punishment on murderers.

In fact, no current execution method approaches the worst possible. We could flay the murderer alive, for example, or let him be eaten slowly by rats.

Many of the same arguments would apply: The murder-victim’s family might take satisfaction in a more gruesome execution, and it might be a better deterrent than, say, lethal injection. But who advocates these more extreme punishments? Overwhelmingly, both sides agree that we should not inflict the worst punishment possible.

Evidence-based disagreements. Because we all want to be provably right, both sides exaggerate their evidence-based points. It would help if we could all admit two things:

• Truly innocent people are a very small fraction of those executed. Even in the Davis case, we don’t know he was innocent; we’re just not sure he was guilty.
• If the death penalty has a deterrent effect, it’s tiny. If deterrence worked, Texas wouldn’t lead the nation in executions year after year.

If you want to see a real deterrence effect, look at interceptions in football. It’s been 29 years since the same player led the NFL in interceptions two years in a row, and I don’t think three years in a row has ever been done. After you intercept a few passes, quarterbacks stop throwing in your direction. But Texans never stop committing murders.

Deep disagreement: weighing our mistakes. Every human process will make mistakes. (Andrew Cohen’s Atlantic article shows just how fallibly human our capital-punishment process is. Repeated attempts to fix it led Justice Harry Blackmun to write, “From this day forward, I shall no longer tinker with the machinery of death.”) One of the most basic liberal/conservative differences is whether you want to err on the side of mercy or strictness. A liberal would rather feed ten moochers than turn away someone genuinely in need. A conservative would do the reverse.

This issue shows up all over: unemployment payments to people who might be able to find jobs, torturing those who are probably terrorists, the number of civilian deaths that are acceptable “collateral damage” in war, and so on. The proper balance is a deep intuition, not a conclusion based on logic or evidence.

This is why the Davis case will not turn be a turning point. It may be obvious to DP-opponents that a single execution of an innocent man invalidates the whole capital-punishment process. But DP-advocates can look squarely at that possibility and remain unconvinced.

Deep disagreement: Only blood pays for blood. Scales became a symbol of justice from crimes of property: If a measure of grain was taken from you, you got the same measure back; that was justice. Metaphorically, this got extended to crimes of violence — an eye for an eye, a tooth for a tooth. Justice means balancing the scales.

This principle is so old that many people don’t realize it’s a metaphor. Killing the killer does not balance anything literal. Nonetheless, many Americans feel deep down that justice has been circumvented if a murderer lives. He got off cheap, or perhaps the victim’s life was valued cheaply. Any talk about “victim’s rights” (or the rights of the family, which stand proxy for the victim) or any comparison between the murderer and his victim (“how much compassion did he have for my daughter?”) is implicitly invoking the scales-of-justice metaphor.

This issue is complicated by the dogmatic needs of fundamentalist Christianity. If blood isn’t a necessary payment, then what was the crucifixion about? Deep down, fundamentalists know that if they give in on the death penalty, their whole religion is undermined.

Strategy. When a disagreement is not amenable to evidence or logic, evidence and logic become distractions. So there’s no point arguing about the statistics of deterrence or racial imbalance if the root disagreement is whether blood is necessary to pay for blood.

When you reach that point, a DP-opponent really has only two options. If you are comfortable with the religious or mythological language the other person thinks in, you can sometimes get your point across that way. (Example: Even though God told Cain “The voice of thy brother’s blood crieth unto me from the ground“, God did not answer that cry by killing Cain. Quite the opposite, God put a mark on Cain to prevent anyone else from killing him. It was the original example of executive clemency.)

But there is an alternative: Simply being in the presence of an alternate moral vision can change a person, particularly someone who has never taken seriously that another view is possible. To employ this strategy, you have to shed the projections DP-advocates throw at you, and refuse to be distracted by issues-of-fact that won’t change anybody’s mind. Eventually you need to make clear that you see what the other person sees, but you just don’t make the same judgment: Blood does not pay for blood. The scales of justice are a metaphor; we have a choice about whether to apply it.

Letting someone else see the example of your alternative moral vision may not be as satisfying as crushing them in an argument about facts or logic. But in the long run it may be more effective.