Unlike some commentators on the subject, I am not bothered by the fact that the discussion of the death penalty has divided the nation. I think it is better to have a society divided by a moral debate than one unified by an unexamined impulse. It is definitely a sign of moral progress when a community takes time to debate the question of whether the killing of a fellow human being can ever be justified as punishment even for the gravest crime.
Punishment is not a science. There is no natural correspondence between offenses and penalties. Concepts of just punishment and capital crimes differ from society to society. They also change over time, reflecting the shifting concerns and mores of an evolving community. In biblical times, the formula used was “eye for an eye”. In Athens many centuries later, the lawgiver Draco did away with the calculations of reciprocal punishment and prescribed death for all criminals regardless of the offense. That is how severe laws came to be known as draconian.
Common English law, writes Edward Tivnan, provided the standards for the first American colonies. In the Massachusetts Bay Colony, death was prescribed for twelve capital crimes: “murder, manslaughter, witchcraft, idolatry, blasphemy, poisoning, manstealing, bestiality, sodomy, lying in a capital trial, rebellion, and adultery.” If these standards had remained unchanged, Bill Clinton would find himself today on death row.
The death penalty still exists in about half of the American states, but is mostly prescribed for murder. Every execution in the US today provokes the same passionate and emotional debate that we witnessed in our own society in the past week. The 8th amendment to the US Constitution explicitly forbids the infliction of “cruel and unusual punishment” and, on this basis, a number of state supreme courts have ruled that capital punishment is unconstitutional. The trend is unambiguously in that direction. Resonating the highest moral aspirations of humankind, the United Nations also condemns the use of the death penalty and admonishes its member states to scrap it from their statute books.
A lot of our beliefs are changing. And we should never hesitate to revise our laws as often as we need to in order to keep them in step with the norms of the civilized world. In our society, I think, the concept of punishment as just retribution remains very much the operative code for dealing with crimes. We do not place much hope in individual reform, that is why our prisons are run the way they are. Yet it is good to note that even advocates of the death penalty no longer frame their position solely in terms of retribution. They now cite deterrence as the principal justification for capital punishment.
Studies on deterrence, however, are at best inconclusive. No one can say if the execution of Leo Echegaray will deter future rapists. But we can reasonably say that the public discussion of the Echegaray case has done a lot to focus much-needed attention on the social evil of rape, especially of incestuous rape. The story of how Baby Echegaray and her grandmother persisted in securing the conviction of her rapist-father provides an inspiring lesson to all those who find themselves in the same situation and are silenced by the fear of stigmatization. The sexual abuse of children by their own relatives is not a new phenomenon in our society, but our culture has kept it from being exposed for what it is. The Echegaray case has made it visible as a crime. That, to me, is moral progress.
It may be argued, of course, that none of this would have happened if Leo Echegaray were not about to die. But my point is that his death is not the essential element that would deter future criminals. Time and again, studies have shown that what deters criminals, more than anything else, is the certainty of being caught and convicted.
At the risk of being counted among those who have shown more sympathy for the criminal than for his victim, I will say that nothing is to be gained from killing the offender that cannot be achieved by the simple act of locking him up for life without hope of parole. Baby Echegaray’s recuperation from this terrible trauma will not be hastened by the taking of this man’s life. Her hope for a normal life from hereon can only be assured if she is removed from her present context and permitted to live in relative anonymity. With generous help from those who wish her well, she will hopefully bounce back and live a full life.
But it is we who cry for blood who probably need some help too. We need to be released from the deforming pessimism that stems from being surrounded by so many failed institutions. We cannot look to the shortcut of one dramatic execution to accomplish that for us. It will only brutalize us.
“I felt very tired,” recalls the Russian writer Ivan Turgenev after witnessing the public execution of a convicted murderer in Paris in 1870, “and I was not the only one to feel like that. They all looked tired, though they all obviously felt relieved, just as if a load had been removed from their backs. But not one of us, absolutely no one looked like a man who realized that he had been present at the performance of an act of social justice: everyone tried to turn away in spirit and, as it were, shake off the responsibility for this murder….
“I remembered the young laborer, who had been shouting senselessly and whose face I had studied for several minutes. Would he start work today as a man who hated vice and idleness more than before? And what about me? What did I get from it?”
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