In “How to Convince Americans to Abolish the Death Penalty,” Amherst Professor Austin Sarat asserts “important lessons about how abolitionists can be successful around the country” can be learned from New Hampshire – which just last month became the twenty-first state to abolish capital punishment – including: “[T]he moral argument doesn’t work.”
Acknowledging New Hampshire is hardly the front-line in the fight to abolish the death penalty – because as the Washington Post editorial board observed “[t]he last time the Granite State executed someone, President Franklin D. Roosevelt was midway through his second term” – Sarat nonetheless urges abolitionists to follow New Hampshire’s lead “by shifting the grounds of the debate so as not to be painted as soft on crime or out of touch with mainstream American values.”
This feat can be accomplished, Sarat says, by eschewing the argument “even the most heinous criminals are entitled to be treated with dignity or that there is nothing that anyone can do to forfeit their right to have rights.” Sarat argues this is a “pitfall” because it “puts opponents of the death penalty on the side of society’s most despised,” and “rejects the simple and appealing rationale for capital punishment: retribution.”
While Sarat is correct, high approbation is due New Hampshire abolitionists – for how they effectively “enlisted conservative allies,” and aligned “themselves with the plight of the families of murder victims” (by arguing “the death penalty does not make citizens safer and that it is archaic, costly, discriminatory and violent”) – his call for abolitionists to abandon appeals to morality and human dignity in crusading to end capital punishment, is, with all due respect, unwise, and even worse, immoral.
Because as I’ve urged in essays like “The prospective gassing of human beings in Alabama is an abomination,” Battling the Death Penalty with James Baldwin,” “Life without parole for Hitler,” “Gov. Kasich: ‘Amazing Grace’ Starts With You” and, more recently, in “My Unforgettable College Stabbings:” “If we want to live in a better and safer world together” our response to violence as a caring, conscious society cannot be “random, reactive, or retributive, as it often tends to be.” Sarat’s regretful and regressive capitulation to the fallacious dogma of retribution is, therefore, in my opinion, as disturbing as it is disappointing.
In his book “The Ethics of Punishment” (Faber and Faber Limited 1968), Sir Walter Moberly sagely observed about retribution that “[t]he executioner pays the murderer the compliment of imitation,” and, more keenly: “Much demand for retribution certainly has a shady origin. It springs from the crude animal impulse of the individual or group to retaliate, when hurt, by hurting the hurter. In itself such resentment is neither wise nor good and, in its extreme forms, it is generally condemned as vindictive.”
To advance that it is a “pitfall” to argue “heinous criminals are entitled to be treated with dignity” is to dangerously disregard now-retired Justice Anthony Kennedy’s 2011 opinion in Brown v. Plata, confirming “prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.” It further ignores Kennedy’s doubling-down on this critical principle, in his 2014 majority opinion in Hall v. Florida, when he wrote: “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.”
The constitutional prohibition against cruel and unusual punishment bears no asterisk for crimes committed by “society’s most despised.” And abolitionists should continue to proudly and affirmatively demand the Eighth Amendment’s guarantee of dignity for everyone, while continuing to make reasoned morality-and-dignity-based arguments to end the death penalty – when it makes sense to – notwithstanding whether or not this strategy was employed during the recent abolitionist success in New Hampshire.
Demanding dignity for society’s most despised is the lifeblood of our weakened, chronically underperforming Eighth Amendment. And it is still at the heart of what it means to be an abolitionist.