December 1, 2021

The state of Oklahoma plans to execute Bigler Jobe Stouffer II on December 9, and officials there are hoping for an uneventful procedure. For the past decade, Oklahoma’s lethal injection program has attracted international scrutiny for its botched executions, including one in 2014 that lasted nearly 45 minutes and another this past October in which the prisoner convulsed and vomited over himself.

Citing these events and their potential conflict with the American constitution’s prohibition of “cruel and unusual punishment”, Stouffer’s lawyer appealed for a stay of execution; but the request was denied. The 79-year-old was convicted of killing a woman and seriously injuring a man in 1985. He has been on death row for 36 years.

I am a single-issue voter because of capital punishment. I would support almost any politician committed to abolishing it. I think the practice infects societies with the singularly putrid idea that someone, or some bureaucracy, could have a right to the body and soul of another person. And I suppose I should feel encouraged by the fact that public opinion in the US is turning against the death penalty, that the Democratic Party declared support for its abolition in its 2016 platform, and that voicing this stance appears a necessity for aspiring politicians on the American Left.

I should feel encouraged, but I’m not. What is notable in the Left’s new anti-death penalty rhetoric is the absence of any principled rejection of capital punishment. Instead, the Left focuses on racial bias in the implementation of capital punishment. This focus no doubt responds to a horrifying record of the death penalty’s use in the United States, but it is also symptomatic of a Left that is reluctant to profess values other than equality, shackling social and moral analysis in the process.

Things weren’t always this way. Old guard voices on the Left, such as Bernie Sanders or the American Civil Liberties Union, continue to condemn the death penalty by citing the inherent value of human life or the need to limit the power of the state. But you will struggle to hear that language from progressivism’s frontline ambassadors today. President Joe Biden, once a hawk on capital punishment, now clarifies through spokespeople that he has “grave concerns about whether capital punishment, as currently implemented, is consistent with the values that are fundamental to our sense of justice and fairness”. Vice President Kamala Harris agrees, and stated during the 2020 race that she opposed the practice for “how it has been applied, which has been to really do it in a way that has been […] against people of color”.

Secretary of Transportation Pete Buttigieg introduced his call to end capital punishment by claiming that it “has always been a discriminatory practice”. And in August 2021, 17 Senate Democrats signed an open letter to Biden urging full repeal on that grounds that “there are serious concerns about arbitrariness in the application of the death penalty, its disparate impact on people of color, and the alarming number of exonerations in capital cases”.

When my home state of Colorado repealed the death penalty in 2020, the main justification offered by the bill’s leading sponsor, Democratic State Representative Adrienne Benavidez, was that “it has been a very discriminatory practice, not just towards people of color, but people within geographic areas within the state”. As our Democratic governor, Jared Polis, signed the repeal into law, he justified it with the argument that “the death penalty cannot be, and never has been, administered equitably in the State of Colorado”.

Concerns about racism in death sentences are justified. While some scholars suggest that minority defendants are no longer at greater risk of receiving a death sentence, black people appear disproportionately vulnerable to wrongful convictions, and research shows that the execution rate remains significantly higher for murderers of white, rather than black, victims — up to 17 times higher, according to a review published in 2020.

Those statistics make for frightful commentary on the state of racism in American society. But they are not indictments of capital punishment per se. If the worst thing about capital punishment is inequality in its application, can’t we solve the problem by executing more white people?

Equality by itself is hardly irreconcilable with the death penalty. It is at the heart of the most powerful philosophical justification for capital punishment, that of Immanuel Kant. Following talionic law, Kant regarded the death penalty as an indispensable centerpiece for a rational justice system.

As he wrote in The Doctrine of Right:

“What kind and what amount of punishment is it that public justice makes its principle and measure? None other than the principle of equality (in the position of the needle on the scale of justice), to include no more to one side than to the other.”

In other words, crime and punishment must be identical. The rational response to a killing is a killing, always. And the ability to implement such a response was, according to Kant, the hallmark of a dignified society that had overcome animalistic, sentimental impulses.

We can fault Kant for attempting to impose an abstract rationalisation onto irrational actors, but we cannot say that his ideal system is biased. So long as it enforces equality in the proportionality of punishments and the universality of their application, it is the very model of impartiality.

Kant’s reasoning helps us to see why criticism of capital punishment, if it is to confront the practice in general, must observe values beyond equality, such as the sanctity of human life and the limits of state power. On its own, the principle of equality struggles to explain why states can claim sovereignty over to their subjects’ property or freedom but not over their lives. Nor can it help us distinguish among different types of state killings; say, the instrumental killing of a renegade shooter in emergency law versus the symbolic killing in the execution of a prisoner.

But if today’s anti-death penalty voices are motivated by values other than equality, they seem uninterested in saying so. This may have to do with entrenched rhetorical habits in American politics. Libertarians and conservatives own the language of limited state power, while appeals to the sanctity of human life are mostly associated with the anti-abortion movement. Conversely, death-penalty abolitionists may believe that the best way to cultivate support for any position among leftists is by tying it to anti-racism. Recent survey data suggests declines in support for the death penalty are driven by shifts among key Left-wing demographics like the young and the college-educated.

But the reason for this silence may also be ideological — a reflection of the belief that equality is the Left’s only worthwhile cause. Historically, after all, the Left has been suspicious of ideals like nationalism and religious faith on the grounds that they can distract from inequality. Perhaps now it also considers conversations about universal human dignity, compassion, and the rights of the individual too off-topic to suffer.

Such ideological narrowing stultifies and dehumanises. A political culture that cannot think outside of group disparities and power differentials will struggle to identify, describe, and respond to some social problems. Similarly, if the death penalty were to be abolished because of a technicality in its implementation, it would be a missed opportunity. A principled rejection of capital punishment is about far more than capital punishment. It is about the incalculable value of human life, the non-sanctity of mobs, collectives, and bureaucracies, and the demand to reduce violence throughout society.

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