Charles Lane — fresh from writing an article about our allegedly foolproof death penalty system that never used the words “Cameron Todd Willingham” — wishes we could stop all the “polarized” debates about the death penalty and just concede that he’s right:
Yet, on one point, Breivik is not talking crazy. At his trial, which began April 16, he pronounced the maximum penalty for his actions — 21 years in prison, or longer if the government meets certain conditions — “pathetic.” He “would have respected” the death penalty, Breivik said. Of course, he won’t get it; Norway abolished capital punishment long ago.
Norway has suffered deeply because of Breivik, and I don’t mean to add insult to injury. But this situation illustrates what’s wrong with banning the death penalty in all cases. If executing an innocent man is the worst-case scenario for proponents of the death penalty, then threatening Breivik with prison is the reductio ad absurdum of death-penalty abolitionism.
Both abroad and at home, we need less polarized debate, less moralizing — and more honest legislative efforts to reconcile valid concerns about the death penalty with the public’s clear and consistent belief that it should remain available for the “worst of the worst” offenders.
First of all, note the clever bootstrapping here. I agree that if Brevik actually would be released after 21 years that the sentence would be inadequate, and that there’s no reason that life without parole shouldn’t be available for first degree murder. In this case, if Brevik really could be released after 20 years the European model really is too lenient. But by ignoring the possibility of life without parole Lane sets up a false dichotomy; it’s imply not true that executing Brevik is the only way to ensure that he won’t return to threaten the public again. Lane’s “reductio ad absurdum” fails because — contrary to what he seems to think — putting Brevik in prison for the rest of his live doesn’t strike me as “absurd” at all. I live in a state with precisely that legal status quo and what negative consequences have followed from “merely” imprisoning the worst criminals for live is…not obvious, while the immorality of executing an almost certainly innocent man — which, Lane’s hand-waving aside, is not merely hypothetical — really is obvious.
But even if we assume that death really would be the most appropriate penalty for Brevik, that’s irrelevant to evaluating actually existing death penalty systems. Our death penalty system does not, and will not, limit itself to a few clearly guilty people who Chuck Lane has identified as a particularly deserving monster. It is racially discriminatory; it executes people who are not clearly guilty and in some cases are almost certainly innocent; and in practice it arbitrarily selects a small number of people who commit fundamentally similar crimes for the most severe punishment. And to think that this actually existing death penalty will be transformed into Lane’s idealized model is dreaming in technicolor. If it’s divisive to evaluate the death penalty as it actually works, call me the great polarizer.