The Death Penalty: The Hard Case

letterstomycountry:

One of the reasons that the death penalty remains alive in America today, I think, is because many Americans still entertain the notion that it is ok for the government to kill people who appear to have done something terrible.  It is not an entirely unreasonable reaction for someone to witness a brutal crime, and believe firmly that the person responsible should have at least equal suffering visited upon them as well.  The retributive impulse is most strong when we perceive that a person has been unjustly harmed.  The greater and more permanent the harm, the greater our collective lust for retribution grows.

This is Lydia Tillman.  On July 4 of this year, while Lydia was walking home after holiday festivities, she was attacked, assaulted, brutally raped, and left for dead.  Her attacker poured bleach on her body and set her apartment on fire before he left.  By what must’ve been sheer force of will, Lydia managed to escape the impending inferno of her apartment by jumping out of a second-story window, and then waited in bushes near her building until emergency crews came to respond to the fire.

This is what Lydia Tillman looked like after the attack:

Lydia’s brother is now raising money for reconstructive surgery on her jaw (h/t MohandasGandhi).  The attack also resulted in a rather serious stroke that has impacted her ability to speak, although her speech abilities have improved with time.

Lydia’s attacker was caught through diligent police work.  A Denver, Colorado police detective was able to put two and two together, and connected the circumstances of Lydia’s attack to the murder of another woman, 19-year old Kenia Monge, who had been killed recently.  Police used DNA evidence from Lydia’s case to track down a man named Travis Forbes.  Travis was arrested, and is currently serving life behind bars.

For some, the arrest and life imprisonment of Travis Forbes is justice.  For others, it is too sweet a fate for a man who has inflicted such unconscionable damage on the lives of others.  The comments from the Daily News article linked above express frustration with the result.  One commenter laments:

[T]he good people of Colorado get to foot the bill for this savage for the rest of his life. Justice……Stinks.

He got life because he agreed to take the police to where he buried the body of Kenia Monge, the 19-year old girl he strangled to death.

Another:

He got life on a plea, but even that shouldn’t have been an option - it should have been ‘lead us to the body and we won’t use bleach before your execution.

Another appears to be a fan of the phrase “cruel and unusual:”

Let’s lock him in a 2 by 3 foot cell and feed him gruel through a straw. Every now and then we can pour bleach through the straw instead of gruel to remind him of what got him in such a predicament. And no toilet or sink to wash up. Just a drain on the floor. He can wallow in his own filth as his limbs atrophy from lack of exercise.

Hmm.

Travis Forbes presents the “Hard Case” for Death Penalty abolitionists.  He is clearly a danger to himself and the people around him.  He committed two heinous crimes, and if he wasn’t caught, likely would have committed more.  Understandably, people want Travis Forbes, at a minimum, to experience the same pain that he inflicted on his victims.  He raped and murdered Kenia Monge, and then raped and nearly murdered Lydia Tillman.  It seems fundamentally fair, at the most basic level, that he should experience some equivalent manner of suffering.  Moreover, given that he has killed at least one person, it seems fair that he should be killed.  After all, fair is fair.

Yet killing Travis Forbes will not bring Kenia Monge back to life.  It will not undo the damage to Lydia Tillman’s body.  It will certainly not extinguish the sorrow, regret, and emptiness that no doubt burden the hearts of Kenia Monge’s family.  The only purpose it can serve is to satiate our vicarious lust for vengeance on Monge and Tillman’s behalf.  Still, is this not enough to justify whatever terrible fate we can visit on Travis Forbes?  Has he not forfeited the right to be treated decently?

In November of last year, I wrote a lengthy post about the Jerry Sandusky case, in which I explained why Jerry Sandusky should not, if found guilty, receive the death penalty.  In that post, I recounted a scene from the movie The Proposition,in which the youngest member of a band of Australian Outlaws, referred to collectively as the “Burns Gang,” is arrested and held for truly awful crimes.  The youngest brother, Michael, is held in custody in contemplation of a “Grand bargain” of sorts.  One of the brothers, named Charlie, is told by Captain Stanley, a local law enforcement official, that if Charlie can bring his older brother, Arthur, into custody, he will let Michael go.  During the interim, however, the townsfolk in a local village come to realize that Michael is in custody, and demand that Michael be brought into town square and made to answer publicly for his crimes:

Michael is strapped to a whipping post, and proceeds to be viciously whipped with a cat-o-nine-tails by an Executioner.  A local official calls for 100 lashes as the townsfolk gather to witness Michael being flogged.

What happens is that the townsfolk see firsthand the skin being flayed off Michael’s back.  They hear his cries of pain.  They see the blood streaming out of deep grooves laid into his back.  They see the strips of sinew hanging loose from his desecrated torso.  At one point, the Executioner flinches as a droplet of blood from Michael’s back catches him in the eye.  There is little, if any skin left on Michael’s back at that point, and the Executioner is barely past 30 lashes.

Eventually, after Michael falls limp and unconscious from the shock of the injuries being inflicted on his body, the assembled townsfolk grow disgusted with the spectacle.  Their thirst for retribution is dulled by their sudden realization that even hideous criminals, who do hideous things to other people, are still human beings.  We come to realize that, in order for Michael to be punished commensurate with his crimes, it would have to be done outside the presence of those who, moments ago, were calling for his head.  They can’t bear to witness the functional results of their desire for punishment, even knowing that Michael has done terrible things to “earn” his fate.

The Death Penalty is objectionable, even in hard cases like that of Travis Forbes, because it reduces us to the same moral plane as the murderer.  Most normal people have an aversion to killing.  It’s the reason why soldiers who kill someone for the first time often experience revulsion and mental trauma.  It’s also the reason why the townsfolk in The Proposition could not bare to watch Michael continue to be flogged.  By killing the murderer, we reduce ourselves to his level.  As Justice Brennan said in 1976, dissenting in Gregg v. Georgia:

The fatal constitutional infirmity in the punishment of death is that it treats “members of the human race as nonhumans, as objects to be toyed with and discarded. (It is) thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.” … As such it is a penalty that “subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Eighth Amendment].” I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. “Justice of this kind is obviously no less shocking than the crime itself, and the new ‘official’ murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first.

There are of course other reasons to oppose the Death Penalty: the frighteningly large incidence of wrongful convictions, the unreliability of so-called “humane” alternatives, the racial disparities with which the Death Penalty is inflicted, all counsel against its continued use.  But what remains to be observed in Lydia Tillman’s case is that Travis Forbes is incapacitated.  He will not be able to hurt anyone else.  We do not need to engage in a modern-day equivalent of putting his head on a pike to do justice to the families of his victims.  Perhaps this is why dozens of family members of murder victims supported Governor Malloy of Connecticut when he signed a bill abolishing the Death Penalty in his state.  

But the point is this: Death Penalty abolitionists cannot turn away from a brutal crime like that which was visited on Lydia Tillman.  You must be able to look at the photo of Lydia Tillman’s mangled visage in the hospital, knowing that somebody intentionally did this to her, and be able to argue without a hint of irony or loss of conviction that her attacker should not be put to death.  If you can do that, then you cannot be accused of intellectual inconsistency or moral cowardice.  

The Travis Forbes’ of the world are the hard case for Death Penalty abolitionists.  And you must be able to defend abolition even in the worst case scenarios where guilt is all but certain, and the victimization severe.  If abolitionists can do that, then I think the Death Penalty’s days in America are numbered.  If abolitionists cannot, then I imagine we’ll continue to have the Death Penalty in America for a long time.

The good news is that we can make the case.  We just need to have the courage to do so, even when it’s least convenient.