When the Indiana Supreme Court put the state’s capital punishment pursuits back on track last month, ruling in effect that it could choose whichever drug cocktail it wished for executions, it prompted my sister and me to have a discussion about the death penalty. We discovered that we had arrived at different but similar positions.

She acknowledges that there are some crimes so heinous that nothing less than the death penalty seems appropriate, but she is so bothered by many aspects of capital punishment that she can’t quite bring herself to endorse it. I have been increasingly disturbed by capital punishment over the years, but the fact that there are monstrous people capable of truly evil acts keeps me from completely abandoning it.

We are both on the razor’s edge of the same moral dilemma, one leaning one way, one the other, neither completely comfortable with where we seem to have landed. And that seems appropriate when considering the most profound action a state can take against its citizens.

There are currently only 11 men on Indiana’s death row. And only 94 people have been sentenced to death in the state since 1897. Those low numbers are both a good thing and part of the problem. They help reinforce my sister’s position and mine as well.

On the one hand, they show that Indiana is not a bloodthirsty state, executing its miscreants with reckless abandon. You can’t get the death penalty in this state for mere murder. You have to really work at it by killing with an “aggravating circumstance” such as murder for hire, serial murder or killing a child or a police officer. Capital punishment in this state is truly for the worst of the worst.

On the other hand, when so few killers face the death penalty – the tiniest fraction of 1 percent of the tens of thousands of them – what exactly is the point?

The death penalty is the most severe punishment of all, but it has to undergo the same scrutiny of the three justifications we use for all punishments – retribution, deterrence and reform.

The point of rehabilitation is that a prisoner might return to decent society or, failing that, at least finish out his days a more decent person. It seems absurd to claim we are reforming people by killing them. And the rarity of capital punishment makes it an unlikely inducement for other would-be killers to reconsider their evil ways.

That rarity also makes the deterrence argument problematic. If we went back to hanging – Indiana’s first method of execution – and dispatched 10 or 20 people a month in the public square, there would quite likely be a noticeable reduction in capital crimes. But putting on average fewer than one person a year on death row to face execution after 10 to 20 years of appeals does not give a single potential murderer the slightest pause.

That leaves us with retribution, and that’s the hardest moral case to make. There can be a fine line between retribution and revenge, and if that line is crossed, society is not replacing the hot blood of passion with the cold logic of reason, as it should, but adding to the nihilism it ought to be trying to erase.

Certainly, the case can be made for retribution. We have not just the right but the duty to protect ourselves and each other by clearly defining the crimes we will not tolerate and setting punishments that are appropriate to the crimes. If we say we will not resort to the ultimate punishment, that gets close to saying there is no ultimate crime, and I’m not sure society can afford to do that. Immanuel Kant argued that for the most heinous crimes, the death penalty is even a moral obligation.

I don’t know that I’d go that far, but I’d say it’s certainly permissible. We are all moral agents, responsible for our actions and their consequences, the wicked few no less than the righteous many.

My biggest problem, as a conservative with strong libertarian tendencies, is allowing public officials to handle that moral duty. At times, I can barely trust the government to fill potholes or haul away the trash with any degree of competence. So how much can I trust it with the power of life and death?

But as long as there are monsters so depraved that nothing less than removing them from the planet seems appropriate, I don’t think there is any choice but to offer that trust, if reluctantly and cautiously.
That might sound like a bad bargain but I think it’s the best one possible in the uncertainty of an imperfect world.

“Communities would plunge into anarchy,” said constitutional lawyer Bruce Fein, “if they could not act on moral assumptions less certain than that the sun will rise in the east and set in the west.”

Comments...