Is the death penalty ever justified?

Closing the semester with a class visit from Prof. Robert Blecker

The semester is over but for the shouting (and I admit I sometimes get nearly to shouting and screaming while doing final grading…).

In the Faces of Death course, the last guest visitor was a week ago last Friday. Robert Blecker is a law professor emeritus at New York Law School. I read his book on capital punishment, The Death of Punishment, some years ago. It struck me immediately as the best single work on that topic I had come across.

Then I found the documentary film Robert Blecker Wants Me Dead, which deals with Blecker’s analysis of the terrible case of Daryl Holton (more on that in a minute). It is a powerful document, attesting at once to the humanity even of brutal murderers and to the legitimacy of the act of taking their lives as retribution for their monstrous deeds.

I was tremendously pleased when he accepted my offer to visit our class, and his visit was a highlight of the semester for me. As I sat there behind the podium, watching the computer screen on which the Zoom interaction took place, Professor Blecker’s face on one side, my class on the other, it recalled to me the wonderful times during grad school when I sat listening to the words of people who knew much more than I did, grateful for the opportunity to soak in some of the tremendous amount of knowledge these wise people had gathered in their lives.

[On my campus, sadly, this kind of experience almost never happens, at least not to me, and I have essentially sworn off the professional conferences in my discipline because the same is broadly true there. The people who surround me in fields at all close to mine on my campus—that is, those whose knowledge I can objectively judge—are in my humble view intellectually unimpressive. This is of course a subjective analysis. I’m fairly sure that (or worse!) is my rank in the view of many of them. And a good number of them at least have the excuse I no longer have—youth. Perhaps some of them will become more interesting later on, and time is about up for me on that score.]

I invite the people I invite to visit my courses most directly because I know my students can learn from them. But when I’m being completely honest, I have to admit that I invite them at least as much in order to sit and learn from them myself.

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Professor Blecker’s position on capital punishment is retributivist. The goal of the punishment, in this framework, is not deterrence, nor is it the rehabilitation of the guilty. Punishment has as its charge to, in the words of Adam Smith in his Theory of Moral Sentiments (that other, in my view even more important major work of the author of The Wealth of Nations that so many fewer people know at all), “fully gratify” the resentment and anger we feel at the murderer. As Blecker writes in his wonderful book:

“For Adam Smith, “revenge, the excess of resentment” was “the most despicable of all the passions.” And yet too little resentment also was despicable. How can we know the proper punishment…Adam Smith too had joined the chorus for a language richer than rationality: God had given humankind not only reason but also intuition. We must, Adam Smith insisted, “oppose to the emotions of compassion which we feel for a particular person, a more enlarged compassion which we feel for mankind.”

Blecker then recounts the affair of Hitler’s Deputy Führer, Rudolf Hess, and the dispute between the Western powers and the Soviets concerning his fate. Aged and feeble, Hess languished in prison. The Western allies believed he should be given compassionate release. The Soviet response was this: “We remember everything about the past…Is it necessary to be merciful to one of those who wanted to drown humanity in blood?” Blecker notes that this was the first time he’d believed the Soviets were correct against the West. (And I am with him completely here).

“The past counts,” Blecker writes. “How many times I would shout that, if only they’d let me, and you’d listen. The past counts. Not rationally, but really. The past counts.”

Stirringly profound.

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A few years ago, Bucknell gave entering students a first year reading (which is accompanied by student attendance at two of a large collection of faculty presentations on various aspects of the book) that advocated for abolishing capital punishment. The book was Just Mercy, by an activist attorney named Bryan Stevenson. I had read the book and understood how weak its argument was and how carefully it avoided taking on any of the many questions raised against the abolitionist case by facts.

I also knew I could safely bet my house that there would be not a single faculty presentation that would alert students to any of the problems with the book and the argument. So I volunteered to do a presentation myself. This piece distills the basics of that endeavor into article form.

One slide in the presentation on Stevenson’s book that I gave students attempted to do some of the same work Blecker does to define the cases that merit the death penalty. He presents a number of such awful cases in the book, and there and in the documentary film we find Daryl Holton as an exemplar.

Holton used a semi-automatic rifle to murder all three of his young children and their half sister, ages 4 to 12, claiming he did it to save them from the underclass life they were leading in the chaotic home of his ex-wife. Holton had also planned to kill his ex-wife and himself, but did not follow through with that latter part of his plan.

Blecker spent much time conversing with Holton about his horrible crime. He came out of that recognizing that Holton was a complex individual with some admirable traits, but none of that shook his conviction that he deserved to die for the dreadful thing he had done, in accordance with retributivist principle.

The example of the kind of person for whom the death penalty is made that I give students (I use much of the material from the first year book session now in the Faces of Death course) is evident in the slide reproduced at the start of this article.

I walk them through the details of Timothy McVeigh’s deed that day in Oklahoma City in April of 1995.

Then I tell them who the dead little girl is in the fireman’s arms. Her name is Baylee Almon, and she had just celebrated her first birthday the day before McVeigh, with cold and merciless calculation, murdered her and 18 other boys and girls under the age of 5 with a homemade bomb.

I say to them: “So, if Timothy McVeigh does not deserve to be executed by the state, then no one does, and Stevenson is right. But if we can find it justifiable to remove the man who performed this atrocity from our midst, then the abolitionist argument falls, and now it’s down to the moral details of what does and what does not constitute a sufficiently heinous deed to merit such a response by the rest of us.”