Unjust crimes & Unjust executions

Theodore Dalrymple discusses Capital Punishment: “Apart from pulp novels, airport bookshops often have an eccentric selection of books. A few years ago, for example, in the bookshop in the airport nearest my English home, I found a volume devoted to the last meals requested by men about to be executed in Texas. I suppose this was to persuade passengers that there were worse meals in life than those offered by the airlines.

To my lasting regret I did not buy the book and have not found it since. It was both horrifying and fascinating. I am ashamed to say that what really horrified me were not the crimes of the condemned men but their choices of a last meal: If I remember right, they all wanted to go out on a full stomach of junk food and industrially produced sweet drinks. Whether the Texas Department of Corrections would have stood for more sophisticated tastes I don’t know: Belon oysters, for example, and a glass of fine Chablis. Would inability to find the delicacies demanded by a condemned epicure have been grounds for a stay of execution? I rather doubt it; but since most of the condemned men were executed a decade or more after they committed their crimes, it would have been no more frivolous a reason for granting a stay than many that must have succeeded. Fortunately, most of the executed men were not of the Belon-and-Chablis-consuming class.

My horror at their choices was not quite as frivolous as might at first appear, for junk food is criminogenic. Sometime later, I happened to read in a medical journal the results of an experiment conducted at a prison for adolescent criminals in England. It was a double-blind trial of dietary vitamin supplementation. Half the young tykes received vitamins, the others placebo, identical in appearance. Those who received vitamins were subsequently much better behaved than those who received placebo—less violent and with fewer infractions of the rules. When those who received placebo were given vitamins and those who were given vitamins placebo, their behaviors changed in the reverse direction.

This suggested that the young criminals were chronically malnourished, notwithstanding their strength and healthy appearance. And the reason for their malnutrition could only be their diet, almost certainly composed of the kind of junk food chosen by the condemned men of Texas. A taste for junk food established in childhood lasts, apparently, up until the very moment of death. Thus one of the causes of crime is the laziness, stupidity, and incompetence of mothers, particularly in Anglo-Saxon society’s lower reaches. (The same goes for obesity.) I use the term “Anglo-Saxon” not in its racial, but in its political sense.

These memories and reflections were stimulated by the announcement that a man called Herbert Smulls had been executed by lethal injection in Missouri 22 years after having committed his terrible crime. He duly had the last meal of his choice and though the announcement did not say what it was, Mr. Smulls looked more like a man who went in for quantity rather than for quality. There was a link, however, to the story of the execution in Oklahoma of a man called Michael Lee Wilson, who was executed after a meal of “stuffed crust pizza and cherry Dr Pepper.” This execution, also by lethal injection, became famous, or infamous, because the condemned man’s last words after the injection were “I feel my whole body burning,” which has been taken by some, especially trial lawyers, to indicate that lethal injection is a cruel and unusual punishment of the type outlawed by the United States Constitution. Now if a few seconds of a burning sensation unaccompanied by any sign of physical distress can be counted cruel and unusual, it seems to me that practically all punishments must be regarded as cruel and unusual; nevertheless I am against the death penalty, despite the fact that I recently found strong evidence that, at least in England, it was effective in deterring murder.

Alas, I am not at liberty to reveal what that evidence is, for I gave it to a friend of mine who is writing a book whose impact I do not want to reduce. But the efficacy of a punishment and its justification are not the same, except on a purely utilitarian view of punishment. I have little doubt that the amputation of hands would deter burglars, thieves, and robbers, but I would not advocate it because I think that such a savage retribution would be brutal. Moreover, on a utilitarian argument it would be permissible to punish the innocent if by doing so it produced the desired effect. Punishment must be according to desert as well as effect; therefore, the utilitarian justification of punishment is wrong, or at least very incomplete.

I have little doubt that some men deserve death, but there are also men who deserve much worse than death: men who have done such horrible things (sometimes worse than murder) that no punishment would or could be condign enough to be unjust. But we do not inflict such punishments in order to preserve; therefore, desert cannot by itself justify punishment, either.

But in my opinion, the decisive argument against the death penalty is that mistakes are made even in the most scrupulous and careful of jurisdictions, whether the penalty be death or any other. And for the state to do to death its own citizens who turn out to have been innocent is not only terribly wrong in itself, it leads to very bad long-term consequences for society as a whole.

In the case of Herbert Smulls there appears no doubt at all of his guilt. No one, as far as I know, suggests that he did not do what he was accused of having done. Wrongful conviction, meaning innocence of the crime, was never (I think) part of his appeal. Therefore, executing him does not pose the slightest risk of executing the wrong man.

But this raises a problem. Under our system of justice, all convicted men are supposed to be guilty beyond reasonable doubt. That, indeed, is the legal definition of guilt. To allow Smulls to be executed on the grounds that he was undoubtedly guilty, that is to say really, really guilty, is to imply that there are at least two classes of men found guilty under our law: the undoubtedly guilty, and the less undoubtedly guilty, namely the quite probably, or quite possibly, guilty. But that distinction is precisely what our system is supposed to avoid, even if in practice it cannot altogether be avoided.

Be this all as it may, the 22-year delay in Small’s execution was inexcusable. If a legal system cannot persuade itself of the correctness of its judgment within a few weeks, how could it do so after 22 years? A judgment that takes 22 years to become indubitable cannot be indubitable. And if it were indubitable earlier, then it would be the utmost cruelty, and a sign of deep brutalization of feeling, to execute a man not immediately but after 22 years. It is, or ought to be, revolting.

I do not at all sympathize with what Herbert Smulls did. I have no idea, either, what he became in the 22 years between the commission of his crime and his execution. We know that his crime was brutal and without excuse; so, alas, was his execution.” (http://takimag.com/article/unjust_crimes_and_unjust_executions_theodore_dalrymple)

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