The Victims and the Furies in American Courts

Article excerpt

DURING THE POINT in the jury selection process called voir dire, prosecutors and defense attorneys question prospective jurors and, everyone hopes, have their questions answered truthfully. This provides an opportunity for both sides to size up those who will decide the case. The following are the questions I heard while waiting to learn whether I would be empanelled on a jury in a recent capital murder case before the Sixth U.S. District Court (I wasn't selected):

"Have you or any of those close to you ever been the victim of a violent crime?" Yes, my father was shot to death when I was a young child.

"Do you have any religious or moral beliefs or convictions that would prevent you from imposing a death sentence?" No.

"Do you feel that society has a right to impose the death penalty for especially heinous crimes?" Yes.

My answers may puzzle some readers. If I'm not morally opposed to the death penalty--if in fact I would be willing under certain circumstances to impose it--why do I take a position against it?

I oppose the death penalty not because it is morally wrong but because it is ineffective and dangerous. Furthermore, it doesn't deter criminal behavior, it's more expensive than life imprisonment, it's unsure, and it's sold politically and implemented widely in ways that pander to racial bigotry. Worst of all, it threatens through another sort of pandering--this time in the name of "victims' rights"--to undermine the very basis of justice.

It is this latter that I wish to discuss in detail.

Twentieth century journalist and social critic H. L. Mencken pointed out that the shocking or degrading nature of the death penalty is as irrelevant to most people as is the fact that it doesn't deter others from heinous crimes. The most important aim of capital punishment in Mencken's opinion is revenge. The immediate victims of the crime and society as a whole, he says, want "the satisfaction of seeing the criminal actually before them suffer as he made them suffer. What they want is the peace of mind that goes with the feeling that accounts are squared." As usual, Mencken is useful in getting us to admit what really motivates us, regardless of what we claim the justification for our acts might be. Revenge--the ancient spirit embodied for the Greeks in the form of the furies--is the real justification for killing people judicially, and we wont think clearly about the whole process until we admit this to ourselves.

Vengeance seems to be society's strongest reason for embracing the death penalty, regardless of what name we give it. And it doesn't bother most people that it might actually be in conflict with other justifications, such as deterrence. As Gary Wills points out in a June 2001 article in the New York Review of Books, juries that impose the death penalty for horrendous crimes "reflect more the anger of society" while they "fail to make the calculations that we are told future murderers will make."

Perhaps the awakening of the furies--this "anger of society," without coolness or reflection--is justified by heinous criminal acts. Perhaps the egregiously cruel, the wantonly violent (Timothy McVeigh once referred to the nineteen young children who died in the Murrah daycare center as "collateral damage"), and the sadistically homicidal acts of murderers justify society's thirst for retribution and reprisal. Never mind that the New Testament revises the so-called biblical injunction of taking an eye for an eye. "When the injury is serious," writes Mencken, "Christianity is adjourned, and even saints reach for their sidearms."

Well, if society is making the judgment on the basis of the wrong done to it as a whole, then it would be futile to cry out against the judgment. But if, as seems more likely, what is increasingly happening is a failure to distinguish between the interests of society and those of the immediate victims, then the whole purpose of a judicial system is being subverted. …