In November, the United Nations called for a worldwide moratorium on the death penalty. In December, Gov. John Corzine signed legislation abolishing the death penalty in New Jersey. Now, in January, the Supreme Court has heard arguments on whether lethal injection violates the 8th Amendment’s ban on cruel and unusual punishment. So, with New Jersey and the UN on one side and Texas and Iran on the other side, the Supreme Court seems poised to pick for us all between the new morality and the old.
Granted, New Jersey hadn’t actually executed anyone in 45 years, so this was a bit like Bill Cosby announcing that he will stop using profanity in his sketches. But the official decision is still noteworthy, as is the fact that New Mexico, Montana, and Nebraska all came close to doing the same thing this year. In the face of the seemingly unstoppable modern sensibility, why would anyone continue to support executing murderers?
There are five possible objectives of any criminal justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. Starting with these values, let’s explore the differences between the two alternatives: capital punishment and life in prison without the possibility of parole.
Incapacitation is the goal of making it physically impossible for the criminal to commit further crimes against his fellow human beings.
Clearly, both capital punishment and life in prison without the possibility of parole fully incapacitate criminals with respect to the general society. The only exception is if the prisoner escapes, but given that there is such a long delay between conviction and execution that death row becomes a de facto prison sentence until then, there is less distinction here than initially appears. But, for the sake of argument, let’s say that once the two paths diverge, execution is 100 percent incapacitation and life in prison without the possibility of parole or LIPWPP (pronounced lip-whip) is 99-plus percent incapacitation. As an advocate of the death penalty, I’m not interested in quibbling about numbers, so I’ll grant that incapacitation is the same for both alternatives.
Within the prison community, however, things are not so clear. Unless LIPWPP is upgraded to permanent solitary confinement, such prisoners will still be a threat to guards and other prisoners during their confinement. This is no trivial difference given the obligations of prisons to protect prisoners from each other. Nonetheless, as long as such isolation is the form of sentencing advocated, I’m willing to grant that incapacitation is a non-issue in this debate.