Death Not So Different?
posted by Frank Pasquale
Hugo Bedau’s classic book Death is Different commented on the qualitative difference between capital punishment and other penalties. But there appears to be a growing trend to blur the distinctivenss of crimes provoking the death penalty. Consider the following examples:
1) At least five states now authorize the death penalty for child rape.
2) China has sentenced a former drug regulator to death for corruption and bribery charges.
3) Doug Berman has noted that the logic of the hard-core cost/benefit approach of Sunstein and Vermeule may well justify the death penalty for drunk driving.
Even death penalty advocate Robert Blecker concedes that the penalty may have grown too expansive given the way felony murder expands its scope.
What are the cultural trends driving an expanding scope for executions? I can think of a couple offhand. First, at least in America, there is a growing sense that prison is a living hell for just about anyone in it, and there must be some way of isolating out the “worst of the worst” with an even more gruesome penalty.
Second, and far more speculatively, I wonder if secularization of society has anything to do with it–not just in the sense that churches have been eloquent voices for mercy and redemption, but in a fading social conviction that there is some “ultimate justice” done after death. Without such reassurance, it may make perfect sense to seek an “eye for eye,” a settling of accounts in the only reality that matters.
May 29, 2007 at 12:32 pm
Posted in: Capital Punishment
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Responses (6)
Matt - May 29, 2007 at 2:28 pm
I don’t know that it makes too much difference to your post but I’m pretty sure that China has used the death penalty for major economic crime (both government corruption and other white-collar crime) for quite a while.
Mark McKenna - May 29, 2007 at 4:54 pm
Frank -
It’s interesting that you’re inclined to trace the increasing scope of capital punishment to increasing secularization. The states that are the most in pro-death penalty tend also to be southern states, which are probably the places where Christian conservatism is strongest. So I’d actually draw the opposite conclusion – the particular form of Christianity that is most politically active right now is probably pushing the trend.
Frank - May 29, 2007 at 5:14 pm
Mark, that’s a very interesting comment, which reminds me of this post of mine (and Nate’s reply) from last year. I suppose I would respond that the religious case for the death penalty really mystifies me, particularly given the frequency with which we are warned not to “play God.” But the Rev. Dr. Allen Dwight Callahan notes the duality of the Christian tradition on this and other social justice issues in an interview aired here.
Orin Kerr - May 29, 2007 at 8:35 pm
Frank,
It’s also interesting that executions are actually occurring at their lowest rate in decades. Perhaps the blurring of lines has to do with how rarely the death penalty is actually imposed?
Frank - May 29, 2007 at 8:41 pm
Orin, yes, perhaps the idea now is that the system is reliable enough to isolate the worst offenses, so we needn’t be as focused in meting them out.
But the work of my colleague Michael Risinger, cited here, leaves me a bit worried that that perception is unwarranted.
Rick - May 30, 2007 at 9:51 am
With respect to Frank’s and Mark’s thoughts about secularization and the death penalty, I’m inclined to think that “secularization” might work in two very different ways: On the one hand, as Frank notes, the waning of a belief in afterlife rewards-and-punishments removes the reason to say, “don’t execute wrongdoers, but give them the opportunity to reflect and repent.” On the other hand, there’s also a sense in which secularization fuels abolition: If “this is all there is”, then the death penalty becomes all the more ultimate.
All that said, I’m not sure the facts Frank points to are enough to call into question the basic “death is different” idea which, it seems to me, is still well entrenched in our law and culture.
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