O Argumento Moral para a Pena de Morte

Editor's note: The author of this essay, Robert James Bidinotto, is also the author of numerous articles and several books, including: Freed to Kill, Hunter: A Thriller, and Bad Deeds: A Dylan Hunter Justice Thriller.

On March 25, 1997, officials of the Florida Department of Corrections strapped condemned killer Pedro Medina into the electric chair at Florida State Prison. Like thirty-eight other infamous murderers since 1976, including serial killer Ted Bundy, Medina would meet his end in the embrace of "Old Sparky."

This time, however, the seventy-four-year-old oak electric chair more than lived up to its grisly nickname. After the black leather mask was lowered over Pedro Medina's face, the first of three surges of two thousand volts of electricity jolted his body. He lurched back in the chair. Suddenly, flames shot up from the mask and burned for perhaps ten seconds. The death chamber filled with smoke.

A KILLER BECOMES A CAUSE

Death penalty opponents immediately cited the gruesome nature of Medina's death to call once again for an end to capital punishment. "It was brutal, terrible," declared witness Michael Minerva. "It was a burning alive, literally." Minerva—a defense lawyer for a taxpayer-supported state agency that defends death row inmates—demanded that the governor halt all pending executions.

"When you torture someone to death," added Robyn Blumner, executive director of the Florida chapter of the American Civil Liberties Union, "the Eighth Amendment [barring "cruel and unusual" punishment] clearly has been violated."

Of course, Medina had not been "burned alive" or "tortured to death." The medical examiner later said that he had found no signs that Medina had suffered or felt any prolonged pain; most likely, he had died almost instantly. But the truth hardly mattered; the charges of suffering and torture were only the latest of many spurious arguments employed by death penalty opponents during Medina's long appeal process.

Medina himself had been the most cynical of claimants. Not only did he maintain his innocence of the murder for which he was convicted, he also argued, on appeal, that he should not have been given the death penalty even if guilty. His reason: the trial court had erred in finding his crime both "especially heinous, atrocious, or cruel" and "for pecuniary gain"—aggravating factors necessary for imposing a death sentence. A review of the facts, however, suggests otherwise and provides some telling insights concerning the morality of capital punishment.

Recall that in 1980, Fidel Castro cleansed his nation of some 125,000 criminals, mentally ill citizens, and other "undesirables" by means of the notorious "Mariel boatlift." Pedro Medina was among Castro's castoffs.

Once in America, Medina nurtured dreams of upward mobility, symbolized by having a car of his own. Appeals court records describe it as a "tremendous desire," even "an obsession." By 1982, Medina also had a jailed girlfriend, another source of frustration.

Medina gained the friendship and sympathy of Dorothy James, a fifty-two-year-old mother and schoolteacher. And it turns out that Mrs. James had a car—just the kind of car Medina yearned for.

A simple, direct sort of man, Medina did the only practical thing: in order to obtain the car, he stabbed his "friend," Mrs. James, to death.

He was not very skilled at it, but he was persistent. In fact, he inflicted a total of ten wounds—six to her chest, one in her neck, another in her abdomen, and two more to her left wrist. Even so, Dorothy James refused to die. Irritated, Medina jammed a gag in her mouth. The medical examiner later determined that Mrs. James, in physical agony, took up to a half an hour to die.

Pedro Medina finally had the car of his dreams. Unfortunately, in his excitement, he had left his hat behind at the murder scene.

Eventually, he decided that it might be better to sell the hot car, in order to raise bail for his girlfriend. But negotiations did not go well with a prospective buyer. So, Medina stabbed and robbed him, too.

Police caught up with Pedro Medina in Lake City, Florida. They found him asleep at the side of the road in Mrs. James's stolen car.

At his trial, Medina was asked to try on the hat, which had been recovered from the murder scene. It fit perfectly. Being a simple, direct sort of a man, Medina then asked the judge if he could keep the hat. "You've got to be kidding!" the judge exclaimed.

Medina was convicted of murder and given the death penalty.

Years of appeals and endless protestations of innocence failed to sway a small army of appellate judges, who affirmed that his murder of Dorothy James had been "especially heinous, atrocious, or cruel" and "for pecuniary gain"—thus meriting the death penalty.

MORALISTS VERSUS PRAGMATISTS

Of course, that did not persuade opponents of capital punishment that putting Medina to death was right and just. They argued, in effect, that however heinous or cruel, his murder of Dorothy James should be irrelevant to the degree of punishment he might receive. He should not be punished in proportion to the harm he had caused an innocent woman; he should not get "revenge," or "just desserts," or "an eye for an eye"; he should not receive justice but mercy.

This argument, typical of death penalty opponents, is based on several unstated, and usually unchallenged, moral premises:

1. Mercy is ethically superior to justice (which they call "revenge");
2. Any human life—even that of a killer—has "intrinsic value," so it is immoral to take another's life under any circumstances; and
3. Society's response to a crime should not be proportionate to the harm caused by the criminal, but governed by other considerations.

How do supporters of the death penalty answer such claims? Too often, they ignore or evade these moral questions at the core of the debate, and instead try to advance "practical" (or utilitarian) arguments for capital punishment.

For example, they typically base their case on the notion that capital punishment is a necessary measure for crime control. From this, they go on to argue that (a) capital punishment incapacitates (or prevents) the killer from ever repeating his crime, and (b) the existence of a death penalty deters future murders by frightening other would-be killers.

Now it is certainly true that executing a convicted killer will prevent him from ever committing another murder. It is also probably true that some unknown number of potential killers might hesitate, out of fear of being put to death themselves.

But there are two major problems with this line of argument. First, it evades the question, for it does not address the moral claims of death penalty opponents. Second, as primary objectives of the law, deterrence and incapacitation do not aim to punish a past offense but rather to prevent future ones. And that can lead to gross injustices.

To elaborate on this second point: As a response to crime, punishment "looks back"—to the criminal's specific past crimes and victims. You punish someone for the bad things he has already done. By contrast, so-called crime-control measures "look forward," into the future, trying to reduce the rates of future crime. They do not directly address what someone has already done; rather, they try indirectly to alter what he might do. They largely forget the criminal's past crimes—and his past victims.

But are not the past victims of central importance to our system of justice?

If preventing future crime is the main goal of the criminal law, then we could easily reduce the number of future murders by blindly imposing brutal penalties on all potential killers—penalties that most people would find to be grossly unfair and disproportionate.

For example, since most killers have escalated from less serious crimes, we might execute all those convicted of violent crime. That way, we would be sure to eliminate a significant number of budding killers and reduce future murder rates. Or, since killers share many psychological characteristics, we might execute any criminal who fits a psychological profile that places him at high risk for future violence. In fact, if reducing the future crime rate were the only consideration in how we punish people, we could simply execute all criminals, from petty to serious. Surely that would be an effective crime-control measure. But would anyone think it was fair or just? Should a pickpocket and a serial killer merit exactly the same punishment?

A crime-control agenda based strictly on deterrence and incapacitation can also lead to unexpected leniency. If reducing future murders is all that matters, then it is not logical or cost-effective to execute those murderers who are unlikely either to repeat their crimes or to inspire "copycats."

For example, most people would probably agree that Susan Smith, the woman who drowned her own children, would be unlikely ever to repeat such an atrocity. Nor would her unspeakable act be likely to encourage other mothers to drown their own babies, even if she went unpunished. Well, then, why bother punishing her at all, let alone with the death penalty? Solely on the "practical" ground of deterrence or incapacitation, it does not make sense.

Yet most of us would think it obscene to let Susan Smith go totally unpunished for her murders. We might free Susan Smith tomorrow, on the grounds that she poses "no further threat to society." But is that the issue? Is the point of the criminal justice system simply to render Susan Smith safer to those she may encounter in the future? Or is the law also supposed to represent her past victims, her two dead babies? Who speaks for them? Do they not count in any system of justice worthy of the name?

Americans are a fair-minded people. They think that a criminal should be punished roughly to the extent of the harm he has caused to people—not more and not less. This is the principle of proportionality—and most Americans intuitively understand that proportionality lies at the heart of justice. That, more than anything else, is what they want, expect, and demand from the criminal justice system. But a utilitarian system, based solely on controlling future crime, invariably sacrifices justice to expediency.

Ironically, many criminal justice "hardliners," who believe in tough deterrence and incapacitation, share a common premise with the "bleeding hearts," who believe in rehabilitation and mercy. Hardliners typically want to impose penalties that are much more severe than the damage criminals have actually done to victims. Bleeding hearts want penalties far less severe than the damage done to victims. Both groups believe that the severity of punishments should have no necessary relationship to the seriousness of a crime. Both groups thus reject the principle of proportionality—of justice.

THE PROPORTIONALITY OF JUSTICE

Justice is a punitive response to a criminal that penalizes him in direct proportion to the harm he has done to actual individuals.

Contrary to contemporary thinking, crimes are not offenses against an abstraction, such as "the state": they are offenses against individuals. Today, the crime victim is typically ignored in court; he or she is a mere witness to an offense allegedly committed against the state, whose interests are represented by the prosecutor. A justice system based on individualism would grant the individual victim standing in court as the offended party, and it would be his interests that the prosecutor represented.

This brings us back to capital punishment. The moral defense of the death penalty is the principle of justice. In the case of premeditated murder, capital punishment is the only just punishment: It is the only punishment roughly proportionate to the harm that has been done to the murder victim.

Now, anyone who respects life is understandably uneasy about taking even the lives of killers. But the principle of justice demands it, because proportionate punishment for crimes is the moral keystone of any system of justice.

If we undermine or abandon proportionality, how do we then gauge whether to punish someone for a crime, and how much? Why not a hundred lashes of the whip for stealing a loaf of bread—but a mere five dollar fine for rape? We are stuck in a trap of arbitrary punishments, of different punishments for the same crime, of punishing someone either too much or too little—and of having our entire legal system lose public credibility and respect, on the grounds that it is inherently unfair and unjust. (That, in fact, is the situation our utilitarian-based legal system finds itself in today.)

To abandon proportionality in sentencing is to abandon the quest for justice itself. And to deny the death penalty for premeditated murder is to deny the very principle of fitting punishments to offenses. If we abandon the principle of proportionality in the case of murder, the most serious of crimes, then on what grounds do we argue for proportionate punishments for any lesser crimes?

Capital punishment for proven premeditated murders is therefore not immoral; it is not even a "necessary evil"; it is a moral necessity, demanded by justice.

RETRIBUTION, NOT REVENGE

Critics of the death penalty—and of punishment in general—often denounce proportional punishment as arising from "vengeance," or some crude, vindictive notion of "an eye for an eye." For example, in a tract published by the National Council on Crime and Delinquency, a prominent anti-incarceration group, James Austin and John Irwin (himself a former inmate) warn, "We will severely damage some of our more cherished humanitarian values . . . by our excessive focus on vindictiveness."

Occasionally, "hardliners" play into the hands of these liberal critics of punishment, by equating the concept "retribution" with concepts such as "revenge" and "vengeance." In fact, though, justice is not based on revenge; it is based on retribution, and the two concepts are not the same.

One dictionary defines "revenge" as "the carrying out of a bitter desire to injure another for a wrong done to oneself or to those who seem a part of oneself." "Vengeance" is "usually wrathful, vindictive, furious revenge." Thus, revenge-based punishment need not be just. The injured party may vent his rage quite disproportionately. If we are to have a just and peaceful society, it is clear that the use of after-the-fact-retaliatory force cannot be left to the arbitrary whims of private victims, each employing his own subjective criteria of personal injury.

It is precisely to minimize and avoid vengeance, vindictiveness, and vendettas, and the disproportionate punishments to which they would lead, that a rational criminal justice system must be based upon a policy of retribution, a "just or deserved punishment, often without personal motives, for some evil done."

RETRIBUTION AS REFLECTION

I use the term "retribution" in the sense of "reflection." The basic aim of the criminal (such as Pedro Medina) is to forcibly gain something unearned and undeserved at the expense of someone else (such as Dorothy James). His actions impose undeserved negative consequences—harm and injury—upon the innocent victim. The fundamental strategy of moral retribution, then, is to reflect those negative consequences of harm and injury back onto the criminal who caused them.

This does not mean we need to punish in kind: the law need not literally demand an eye for an eye and a tooth for a tooth, sinking to the specific tactics of the criminal. But it does mean that society should punish in proportion: that the law ought to recognize gradations of evil and harm, and respond accordingly.

This policy is both moral and practical: moral—because it upholds the value of innocent human life; practical—because a policy of reflecting full harm back on the criminal frustrates his goal, which is to profit at someone else's expense. Retribution means that a criminal "won't get away with it"' and that assurance, issued to all would-be criminals, is the only policy of deterrence that the justice system should or need pursue.

The principle of proportionality also answers those critics of capital punishment who say they prefer mercy to revenge. First of all, "mercy," as these people use the term, means a negation of simple justice, for it allows the criminal to bear lower costs for his crimes than the harm he imposes on his victims. This sort of mercy actually encourages criminals, because they know that they can gain more from crime than any costs they will have to bear. In this respect, mercy (embodied in most "rehabilitation" programs) is utterly immoral.

THE WORTH OF HUMAN LIVES

However, one charge by death penalty opponents is true: The moral case for capital punishment does indeed rest upon making a strong distinction about the relative worth of human lives. The concept of justice is incompatible with the view that all human lives are "intrinsically and equally valuable," regardless of the individuals' chosen moral behavior. If that were true, then it would be wrong for an innocent victim to kill an aggressor, even in self-defense or in a wartime—because the aggressor's life would be "of equal intrinsic value."

Only human predators could gain from such a policy, and only the innocent could lose. A system that would leave the morally innocent at the mercy of evil predators can be called many things, but "moral" is not one of them.

On the principle of justice, only the lives of the morally innocent are truly and fully "human." The lives of predators are—by their own choice—subhuman. A system of justice must make a clear distinction between the two—between the Pedro Medinas and the Dorothy Jameses of the world—and it must respond accordingly.

America was founded on the principle that each individual is an end in himself. In such a society, premeditated murder is a crime in a class by itself. Murder negates the highest moral end of civil society: the irreplaceable human life. What possible penalty could be proportionate to such a crime, except the forfeiture of the murderer's own life?

So, in the case of premeditated murder, if there is no question of guilt and no extenuating circumstances, capital punishment should be the standard penalty—on moral grounds.

AFFIRMING LIFE

We should take no joy in the execution of predators such as Pedro Medina. The taking of life is a symbol of the ultimate possible waste. It is a profound tragedy, which should be conducted with solemnity, dignity, and privacy. It should not become cause for public participation, celebration, or spectacle. And it should not involve the deliberate imposition of cruelty or torture: We need not sink to the moral depths of the predators themselves. Executions should be as painless and quick as possible.

But there should be no moral apologies when capital punishment must be employed. Those occasions should be a moral affirmation to the innocent of our common commitment to justice—just as they should be a moral statement to the guilty that there are some crimes no civilized and decent society will ever stoop to tolerate.

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