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Virginia sets an example by ending the death penalty

The Virginia legislature passed a bill to abolish the death penalty last month that the governor has vowed to sign. This would mark the first time a Southern state has abolished the death penalty — welcome news for many of us. To others, let me set out the reasons why the death penalty is bad public policy, and why every state should follow Virginia’s lead.

There are two general arguments that are given against the death penalty — the “mistakes” argument and the “concurrence with the purpose of punishment” argument.

The mistakes argument works on the principle that no system of justice is perfect. Mistakes will be made, and the consequence of making a mistake in a capital crime is the loss of a human life. No consequence can be worse, and public policy should never take such risks when the stakes are so high. At this moment in the state of Tennessee, relatives of Sedley Alley (with the help of The Innocence Project) are trying to test the DNA from the crime scene to determine the possible innocence of Alley in a 1985 murder. This was not procedure at the time, and Alley was executed in 2006. If this evidence is tested and found not to be Alley’s DNA, then his innocence of the murder will be demonstrated.

The innocence of those convicted of capital crimes has been the focus of the Innocence Project, a nonprofit founded in 1992 by Barry Scheck and Peter Neufeld that has overturned the convictions of those wrongfully convicted. To date, more than 300 people have been exonerated through DNA testing. These prisoners averaged 13 years of wrongful imprisonment before their release, which shows the system can make mistakes. It is one thing to wrongfully imprison someone for 13 or more years — it’s another to take their life.

When mistakes are made in cases not involving the death penalty, there is the option to release the inmate from prison with a stipend from the state. This is not possible after prisoner execution — that precious life is no more. This would constitute a grievous moral crime by the state.

The second argument concerns the concurrence with the purpose of punishment. In retributive justice, the ideal is to “give back” what was taken away. In the case of a $50 theft, the miscreant could (in the second stage) give back the $50, plus some additional penalty for committing the act. This is the model. 

For murder, there can be no giving back. Thus, some people call for the taking of a second life as recompense for the first — but this goes against the purpose of punishment. Going back to Plato, the purpose of punishment is to purge the soul of the miscreant so that they might reform and become improved. This is what repentance is all about. Our prisons should be structured to help change the lives of those who are incarcerated. This “rehabilitation” used to be a primary goal of our prisons (at least by lip service).

Some may say that rehabilitation of those in prison is a dream and not realistic. Some characterize criminals as nonhuman animals who are beyond redemption. This was not my experience when I engaged in volunteer work in prisons years ago. It is also not the experience of Sister Helen Prejean, C.S.J., a longtime advocate for the abolition of the death penalty. So long as the prisoner is alive, they may turn their life around. 

Our prison system should be structured so that might happen. It may be a long shot, but our purpose of punishment should not be “inflicting pain” as the second stage of retribution. This sort of revenge motive grounded in schadenfreude — pleasure derived by someone else’s misfortune — is unworthy of us as humans. In its place, we should work for redemption, even for those incarcerated for life without the possibility of parole. Only then would we fulfill the proper purpose of punishment.

Thus, the death penalty fails on both points: It sets a punishment that cannot be undone in the case of mistakes, causing an unacceptable tragedy, and it veers away from the proper purpose of punishment, per se. This is why many in recent years have called for the end of the death penalty, including Pope Francis in “Fratelli Tutti” (All Brothers). Let us applaud the state of Virginia for its actions and hope that others soon follow suit. Life is too precious to wait another minute.

Boylan is a professor of philosophy at Marymount University in Arlington. He is the author of “Natural Human Rights: A Theory” and 36 other books.


© Arlington Catholic Herald 2021