Opinion: Crime and Punishment

After being incarcerated on death row for 35 years, and after surviving a multiple hours-long botched lethal injection attempt 16 months earlier, on Jan. 25 Kenneth Smith became the first person in the world to be executed with nitrogen gas. 

Alabama state officials described his execution as a model for other states looking for alternatives to lethal injection. Even though most witnesses to this morbid event, which took 22 minutes, described it as profoundly disturbing, several states began considering laws to adopt the use of nitrogen gas in their executions. A moral person might ask not how, but why? What really is the objective when we, as a society, decide to carry out a death sentence as punishment for crimes, even for those that cause irreparable harm like murder, sexual crimes and crimes against children?

Typically, we recognize four purposes for punishment: deterrence, incapacitation, rehabilitation and retribution. Deterrence is rooted in the idea that incentives modify behavior. If a crime is followed by a severe enough punishment, the offender will think before committing that crime. However, if people perceive that the odds of getting caught are low, they are less likely to be deterred. Incapacitation involves physically preventing an offender from committing a crime. Opportunities are limited in prison. They are expensive and temporary. Rehabilitation aims to change offenders into law-abiding citizens through education, vocation training and other programming. However, some behaviors and individuals are more susceptible to rehabilitation than others. Retribution, really the only objective attributable to the death sentence, is effectively “an eye for an eye.” It strives to impose a proportionate punishment validating victims and expressing societal condemnation of behavior beyond the pale. It is essentially “revenge.”

Thinking about the purpose for punishment can be a powerful mental tool to discuss whether something should be a crime and, if so, what type of punishment will effectively serve the interest of society. American culture assumes that crime deserves punishment. But if punishment is not tailored to serve a purpose it ends up being pointless suffering. Suffering for the offender and expensive for the taxpayer.

Over the centuries political elites have used the threat of punishment to control their adversaries. From the Roman and Greek time to the Middle Ages potential culprits faced the threat of stoning, burning, quartering, whipping, drowning and other violent acts. Subsequently, well into the 18th century, dominant elements used horrifying torture methods, like “brazen bull,” “iron maiden” and “the rack” to force confessions, punish the accused and strike fear in the minds of potential offenders.

Governments became gradually more civilized in their approach to punishing crime. For a long time the primary focus of state administered punishment became banishment or exile. Incarceration was not widely used to detain prisoners before trial or for imprisoning people without judicial process until relatively recently. In 1689 England even adopted a Bill of Rights which prohibited “cruel and unusual punishment.” In December of 1791 the Eighth  Amendment to our Constitution did the same.

Today we are one of 55 countries in the world which still imposes the death penalty. We are joined by China, Iran, Saudi Arabia and Egypt as the countries that execute the most people. Several other states, especially in Africa and Asia that apply a Sharia-based criminal code also continue the process, sometimes even for offenses like homosexuality. Most countries in our sphere of influence have rejected the practice. The European Union routinely reaffirms its “strong and unequivocal opposition to the use of the death penalty at all times, and under all circumstances.” None of its member states will even consider extraditing criminals to the United States if they could face the death penalty in our system.

Twenty-seven U.S. states still keep the ultimate punishment on their books. They tend to argue that it is legal punishment, which deters crime, and that, essentially, retribution is  appropriate. Although opponents vehemently disagree, the Supreme Court has ruled that the death penalty does not violate the Eighth Amendment ban on “cruel and unusual punishment.” (1976 – Gregg v. Georgia). It is difficult to argue, however, that the mere ability of the state to execute offenders for certain crimes is a deterrent. Typically, death row inmates spend a decade or more on death row prior to execution. (Kenneth Smith was incarcerated for 35 years before he was killed.) Nearly a quarter of inmates on death row in the U.S. die of natural causes while awaiting execution. And then there is the issue of convicting innocent people – in some cases to satisfy the need of a prosecutor to show results regardless of the facts. Since 1973 at least 197 people who had been wrongly convicted and sentenced to death in the U.S. have been exonerated. According to the Academy of Sciences, 4.1% of people currently on death row are likely innocent of committing the crimes they have been sentenced for.

Again, revisiting our objectives when establishing the type of punishment we mete out for certain crimes should generate a wake-up call. Case in point is the situation in The Netherlands. For the past two decades crime rates in that country have fallen spectacularly thanks to its approach to law enforcement  which prefers rehabilitation over incarceration. Dutch prisons are being converted into hotels and apartments because of the lack of prisoners. According to Rene van Swaaningen, professor of criminology at the Erasmus School of Law in Rotterdam: “The Dutch have a deeply ingrained pragmatism when it comes to regulating law and order. Prisons are very expensive. Unlike the U.S. where people tend to focus on the moral arguments for imprisonment, The  Netherlands is more focused on what works and what is effective.”