Eating a Hershey Bar on Death Row

Eating a Hershey Bar on Death Row

Capital punishment is a moral abomination: That is the consensus among elites in developed countries. Everyday people, however, often disagree. So there's a lot riding on The Death of Punishment, a memoir and manifesto from New York Law School's Robert Blecker, one of the death penalty's leading advocates. It is an opportunity for an eloquent, informed, and passionate activist to defend the instincts that so many feel.

Blecker drives an important point home: Life without parole, at least as it exists in today's prisons, is simply not an appropriate punishment for the tiny, sadistic sliver of the criminal population he dubs the "worst of the worst." Unfortunately, however, Blecker's argument for giving these people death -- as opposed to harsher punishment in prison -- will not convince anyone who doesn't already agree with him. And conversely, he will not persuade aggressive death-penalty supporters that capital punishment should be strictly limited to the "worst of the worst." As a result, The Death of Punishment is a worthwhile but rarely satisfying read.

Death-penalty abolitionists often insist that spending life in prison is "worse than death" -- an argument that has never made much sense, given the extensive legal maneuvers condemned prisoners will go through to keep living behind bars instead of facing execution. But by actually visiting Death Row in numerous states and reporting the conditions there, Blecker completely destroys this notion.

Modern prisons are not designed to actually punish anyone -- the simple fact of being in prison, as opposed to being free outside, is supposed to be the punishment. Prison officials see their job as one of management; the goal is to keep things running safely and smoothly, and if that means giving everyone access to basketball courts and video games, so be it.

This approach may be the best one for prisoners who will eventually reenter society, and perhaps Blecker spends too little time considering the safety benefits it holds for staff. But much of what Blecker finds is truly shocking: In states without the death penalty, even the worst offenders can often work their way to lower-security facilities, with countless freedoms and perks, through good behavior. Once a man enters prison, the slate is wiped clean, and all that matters is how he behaves as an inmate.

And bizarrely, in prison after prison, Blecker finds that Death Row inmates are actually treated better than the rest. At Florida State Prison, for example, inmates who have been condemned to death, but not other prisoners, have a TV in each and every cell; Death Row inmates are also the only ones who are allowed physical contact with their visitors. Ohio's Death Row has a basketball league.

Thus we find Danny Rolling, a Florida serial killer who raped several of his victims, "relaxing, reading a book, a pillow tucked behind his head, reading glasses comfortably perched on his nose"; apparently Rolling also "played a mean game of volleyball there on the Row." And we see Steven Hayes, one of two men who raped and murdered a mother and her two daughters in Connecticut, fast asleep in his Death Row cell surrounded by a Hershey bar and various other junk foods from the prison commissary. After Hayes was sentenced, Connecticut repealed capital punishment -- technically only for future cases, but it is unlikely that Hayes will ever be put to death.

So, on a purely informational level, The Death of Punishment is eye-opening. It reveals a startling lack of justice even in supposedly backward, vengeful America. Blecker's suggestion for a new and improved life-without-parole option for juries -- tasteless food, strictly curtailed visitation rights, no recreation save basic exercise, etc. -- could provide a terrific starting point for a reform agenda.

The book will be inadequate, however, for those wanting a capital-punishment argument capable of convincing people whose thirst for payback is limited -- for example, the 57 percent of Boston residents who supported life without parole, instead of death, for Dzhokhar Tsaernev just six months after the terrorist set off a bomb at the city's marathon. Here's a summary of Blecker's case provided early in the book, and frankly it never gets much more nuanced than this, despite all sorts of citations to great philosophers and legal experts: "Killing eight students nurses in their townhouse or 6 million Jews in gas chambers made a man deserve to die. Not because I wanted it, not because most of us wanted it -- but because objectively, in fact, he deserved to die."

Blecker himself concedes, in a speech before an audience of German students recounted late in the volume, that when it comes to the urge to punish, "if you don't understand this, if you don't feel this, if your intuitions don't tell you this, I can never persuade you." His arguments are often framed as statements of what "we retributivists" believe, rather than as reasons one should be a "retributivist" to begin with.

And curiously, despite making such an emotion-driven case, Blecker provides little evidence that the death penalty confers real emotional benefits. Certainly, most of us feel a drive to see justice done -- it is difficult to read what many of these Death Row inmates did without wanting to see their throats slit, ever so slowly -- but what happens when we succumb to that urge and have someone killed? Do victims' families actually report feeling better? Do the rest of us really experience the "cleansing" Blecker writes of? These are largely empirical questions, and Blecker never really answers them.

Also missing is a detailed discussion of why people evolved to feel the urge for retribution, what purpose it serves -- a discussion that's needed to evaluate what we gain and lose by indulging or suppressing the urge in various ways. Statistical evidence about deterrence, for example, is hardly mentioned until an appendix, when Blecker says he knows prisoners who killed only in states that lacked the death penalty but concedes that the research is mixed.

The state's role in meting out appropriate punishments so that people don't take matters into their own hands is also barely explored. Blecker notes that elites in some European countries have banned the death penalty despite widespread popular support, but he doesn't explain what the consequences are when a state refuses to carry out the popular will in this way. Is there any sign that this is backfiring, or is the full extent of it simply that punishment isn't as severe in these countries as most people would like?

With Blecker's case for death resting on such a shaky foundation, it's even harder to accept his system for determining who gets the ultimate punishment and who is spared. He says that death, being the worst punishment we have, should be reserved for the "worst of the worst" offenders.

But as he also notes, death isn't really the worst punishment possible -- we could torture the condemned before they die, for example. The Constitution and our morals preclude this possibility. So what we have here isn't a sliding scale that can be adjusted to fit to every crime perfectly, but rather a scale that is artificially capped at the death penalty -- some people may deserve to die, while others deserve to die quite painfully, but plain death is the most we can give to both groups. In this situation, why shouldn't we kill all of them, rather than reducing the punishment for run-of-the-mill murderers to preserve a distinction between them and the Hannibal Lecters?

Of course, drawing any sort of line between those who deserve death and those who don't is a purely subjective process. Blecker, for example, will happily sentence a man to die for raping, torturing, and killing a series of victims. But if a stickup artist shoves a loaded gun in a store clerk's face, and then intentionally shoots the clerk for trying to grab the gun, that doesn't qualify. And after getting to know Daryl Holton, a Tennessee Death Row inmate who murdered his four young children rather than letting them live in alleged squalor with his ex-wife, Blecker comes to suspect that this man isn't quite the "worst of the worst," either. Those of us who didn't develop a friendly rapport with Holton before his electrocution might be inclined to disagree.

In The Death of Punishment, we have the story of one man who's convinced that some people deserve to die -- and his experiences as he gets to know the prison system and the people housed in it. This makes for an informative and often gripping read, and Blecker's descriptions of life and leisure for brutal killers will move many to outrage. Yet the book never succeeds in its most difficult tasks: to explain how we benefit from putting criminals to death, and to explain why we should draw the line at the "worst of the worst."

Robert VerBruggen is editor of RealClearPolicy, and this piece was cross-posted at RealClearBooks. Twitter: @RAVerBruggen

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