"Arbeit Macht Frei" Thinking about Capital Punishment

November 4, 2012

I wrote the essay below based on the dark side of Proposal 34 to abolish capital punishment.  They are legitimate concerns, a reaction to the illusion that it will be an unalloyed advance for society.  Yet, the proposal is a referendum on reality, the dysfunctional operation of California's penal system's treatment of condemned prisoners.  It could be that their death penalty gives them a more full existence during the interminable delays compared to those who were spared, and only received life without parole.

I'll include in the addendum, the words of  L.A. Times Columnist, George Skelton, who in spite of being in favor of the death penalty in principle, nevertheless is voting for this bill to abolish it.

October 1, 2012

"Arbeit Macht Frei",  meaning "Work makes Free", the sign that greeted those condemned people entering Auschwitz during WWII, was brought to my mind by the California proposition 34 in this 2012 election.  This bill is a political document, as such its elements can be thought of as "memes," which are the values encompassed in the slogans that we all internalize in thinking about public issues.

Capital punishment is one of those issues central to the cultural divide that separate Americans, largely, defined by the two parties.  Liberals consider themselves more thoughtful, and as such less willing to take strong action, something ridiculed by the other party as weakness or political correctness.  So, ending the death penalty is generally supported by Democrats over Republicans by two to one.

Because this bill (an alternate term for the proposed law) must get bipartisan support, it is crafted with some unusual elements that make it more palatable to the compassionate liberals as well as hard nosed conservatives.  As such, in my view, the outcome is both a moral and pragmatic abomination.

There is a central assumption that must be questioned before proceeding, which is that the alternative to execution, life without parole, is the more benign punishment.  There are several ways of getting at the subjective experience of the two sentences, one being the number of suicides among those with no possibility of ever leaving prison.  Each attempted suicide is a vote for the premise that death under these circumstances is their wish, being less onerous than life in prison.  This puts a different slant on this bill, not that it is more humane but actually more cruel to those who must endure it.   This article in The Economist illustrates this:

The chance that a given prisoner will end his or her life in prison is not unusually high.  It is for lifers. At 8% of the prison population, and less than 1% of receptions, they account for 21% of suicides. Murderers and men who expect to die in jail are particularly likely to perish at their own hand.

California executes only the "worst of the worst," as determined by a mandated second punishment trial by the jury, and publicly funded automatic appeals.  Only these determined to have more aggravating than mitigating circumstances are sentenced to death, with very few actually executed  These few represent that wrath of society as expressed by jurors; and then receive the  most expansive protection of the judicial system to ensure that there are no errors of evidence, prosecution or process.

Let me stop to make one thing clear, that I happen to believe that miscarriages of justice including in murder trials do happen, and worse, that they fall disproportionately to the impoverished and to racial minorities.  What I am suggesting, is the attempt to deal with this by the current proposition is based on unfounded, even if widely held, beliefs that have unexamined adverse consequences.

Our highest courts have determined that execution is the single punishment that requires a review of every aspect of the trial, allowing the convicted individual a taxpayer funded appeal to a higher court.  Since this is not mandated for a prison term, it is the cost of this that makes capital punishment more expensive than life in prison.

The most frequently relied upon forensic evidence is now being demonstrated to be far from the valid science that the public, and jurors, have been led to believe. The savings of money that this bill describes will be from eliminating the valuable effect of scrutiny by appeals courts, and the public focus on such cases, that have shown the limits of forensic science that have convicted uncountable innocent defendants.  If the death penalty is to be abolished, it must not mean the end of focusing, by the court and the public, on the many deep injustices that define our criminal justice system.  Appeals courts must continue to monitor convictions of what had been capital crimes,  treating life without parole as they now treat executions,  not based on ability to pay but randomly selected.  If we remove the universality of appeals oversight, we are left with such review only being for those with wealth, missing the demographic most likely to suffer from systemic lack of fair representation due to limits of funding for public defenders.

This proposition should raise some profound issues that should be part of the public conversation.   The first is on the concept of punishment itself, something that has only been accepted in recent decades in this country and not an overriding purpose in others.  In Mexico, not only is there no capital punishment, but there is no life without parole. In fact,  Mexico will not extradite to the U.S. anyone who faces, not only the death penalty, but even life in prison.  While the conditions of their prisons make a mockery of this formal legal proscription, nevertheless it exists in principle.

While the penological principle of redemption in practice in Scandinavian countries such as Norway is rooted in theological and enlightenment era values, current neuroscience (article here, my comment 8th down) has provided some increasing new insights into causation that question the very concept of free will, the absence of which makes punishment itself a non sequitur.

But, most of civilization is stuck with a model of punishment for that which society condemns, that which we label "crimes." This is reinforced by the illusion enshrined in the final affirmation of our national pledge of our being a nation of, "....justice for all."   The only requirement is that such imposed suffering of the perpetrator is proportionate to the suffering he or she inflicted on the victim and the broader community.

Now we get to another central element of proposition 34 from the official summary:

"This measure specifies that every person found guilty of murder must work while in state prison and have their pay deducted for any debts they owe to victims of crime, subject to state regulations."

This is what brought to mind the sign over Auschwitz as well as the chain gangs that could be seen along the side of southern roads decades ago.  Or is it to be something completely different;  actually providing the satisfaction that work is meant to bring to people.  Will the workers eventually be allowed to unionize to ensure decent conditions-as the product of their labor will be in competition with that of other citizens; or will it go the other way, and become the worst expression of slave labor, with productivity being enforced by the threat of.....what is the threat to one who has already been sentenced to life without parole?  Is it  to be put in solitary, which would mean he wouldn't have to work at all, or is in the "hole,"  a dark cramped place with nothing to occupy his mind except recurring visions of a nightmare life.  Perhaps during this period, when the full extent of his miserable existence becomes inescapable, perhaps with memories of his childhood, probably surrounded by the most brutal violence by those who were to care for him, perhaps he will long for release, for ending the suffering.

But it will not be possible.  He will be allowed no implements of self destruction, which means that the pain shall have no relief, that he will endure the suffering until a natural death, fed, housed and perpetuated under the edicts of the law that citizens of this state shall decide on within the next few weeks.

This bill is carefully crafted to have something for everyone.  If you want to see those killers suffer even more, this is the ticket, as they will rot in jail for the rest of their lives.  "So what if a few may not have actually committed the actual crime they are convicted of, they probably have done worse, so no big deal;  and this will make it easier to send a lot of "them" away, with no intrusive appeals courts second guessing the juries."

And those who think this as humane, the elimination of a civilized society taking the life of a human being, so ending the possibility of killing an innocent person, you have the same bill to get this done.  All it takes is ignoring the adverse consequences described here:

This bill would impose what for many is a harsher punishment than execution.

The details of the work requirement are not defined, so they will either soften or exacerbate the punishment.

It eliminates the universal appeals process that results in fairer trials.

It removes the public abhorrence of false guilty decision when the result is execution, thus possibly increasing such errors.

We should not imbue the act of execution, of taking a life by due process of law, with all of life's injustices, whether forensic, juridical or existential.  Many of the  protections against failures of our legal system only apply to capital punishment, so the elimination of the punishment will also eliminate these protections, such as automatic appeals for the indigent.  The abolitionist impulse must be directed to the deeper causes that are much more entrenched, to grave injustices that will only become more routine, less disturbing with the abolition of the most shocking manifestation of these harsh realities.
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On October 23, the L.A. Times printed my letter: Death row vs. solitary, that made several points in this essay.  The letter expanded on this article in Mother Jones Magazine describing Solitary Confinement in California Prisons.

The politically motivated massacre of 90 campers in Norway, threw in sharp relief the contrast between that country's redemption oriented penology, where the killer will serve a maximum of 21 years in a comfortable setting to our own system, with a meaningful commentary in this N.Y. Times OpEd,  Justice? Vengeance? You Need Both  The contrast between the two countries is explored in this article, In Sentencing Criminals, Is Norway Too Soft...
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George Skelton's views from the LA Times of Nov. 4

•Prop. 34 would abolish the death penalty and replace it with life in prison without the possibility of parole. But, in essence, California's death penalty was eliminated long ago. We're paying for it, just not getting it.

There have been only 13 executions in the last 34 years and none since 2006. There are 729 killers housed on San Quentin's death row, living in single-bunk cells with TVs and extensive yard privileges.

The question is not whether we should have capital punishment. We should. But we're apparently incapable. So give up the costly charade. Double-bunk the murderers with other inmates, make them work and save $130 million a year. Stop dumping tax money down a rat hole.





1 comment:



  1. The following is from the San Diego Chapter of the ACLU urging vote YES on this proposition:

    Proposition 34 (SAFE California Act) replaces the death penalty with justice that works: life in prison without the possibility of parole. This initiative would save $130 million per year, which could be better spent on public safety, education, and social services. 140 people have been freed from death rows across the country after being wrongfully convicted—3 of those in California. And we know that hundreds of innocent people have been wrongfully convicted of serious crimes in California alone. Replacing the death penalty is the only way to ensure that California never executes an innocent person. We know that 46% of murders and 56% of rapes go unsolved in California each year, with even higher numbers in Latino and African American communities. This initiative also establishes the SAFE California Fund, which directs $100 million of the savings from replacing the death penalty to local law enforcement for the purpose of solving more rapes and murders
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    The director did not respond to my request for a specific comment on my arguments, so I will take the occasion to rebut this statement on their web site
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    The number of those sentenced to death who are released is over a ten year period, and largely due to the availability of exculpatory DNA evidence which now will be brought into the original trial, lessening exoneration due to this emerging science.

    The implication of citing the 46% unsolved murders is that with more funds it would be higher. This is unfounded, as there are a large number of such crimes where evidence is simply not available. Pressure for closure while may increasing conviction rates, as history shows could very well increase the spurious guilty decisions that the ACLU should be most opposed to

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