“Was sentence of death ever pronounced except at midnight, by the light of torches, in a dark, gloomy hall, and on a cold, stormy winter's night? Why, in the month of August, at eight o'clock of such a lovely morning and with such kind-hearted jurors, it’s impossible!” These are the thoughts of Victor Hugo’s capital defendant in The Last Day of a Condemned Man, as he sits awaiting his sentencing, which will return to him a verdict of death.
Although this reads as absurd — because of course one may receive a sentence of death even on the most beach-worthy day of the year (just ask California, who holds the record for the nation’s largest death row despite boasting Malibu) — it might have some larger implications about how we, still today, visualize and expect the death penalty to be carried out. It must be imposed under the ‘right’ circumstances, right? Just as a sunny day seems wrong, a prosecutor in a particularly bad mood when deciding to seek the death penalty should be wrong. For neither the weather nor the mood have any relation with a defendant’s culpability.
For one, we expect such an “awesome punishment” to carry out the principle objectives of our judicial system: retribution and deterrence. In order to accomplish this, we have historically acknowledged retribution’s law of retaliation — biblically “lex talionis,” or an “eye for an eye” — therefore legitimizing that to kill is to forfeit one’s right to live. However, social and judicial limits have been imposed on this right to retaliation. Much to my dismay, it is not considered acceptable for me to shove people out of my way in the Collegetown Bagels line just because they did it first. Even more abysmal, it is not legal for me to shoot someone in the foot because they once shot me in the foot. If we consider these reactions to be excessive, despite the lighter degree of severity, why do we make an exception when it comes to murder? The sentence of death is qualitatively different in its immensity and irreversibility.
The Eighth Amendment provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” If we grant that the death penalty is not cruel in itself we may wonder how it then becomes cruel when procedural safeguards are disregarded (meaning bifurcated proceedings, narrowed pool of eligibility and so forth), or when discretionary decisions are made by the prosecution about whether to seek the death penalty. It is my opinion that a punishment so grandiose is cruel when it is geographically imposed unevenly on the whims of each prosecutor’s office, regardless of its justifiability in a particular case.
The risk of arbitrariness has been addressed in many respects, including by constitutionalizing provisions preventing racial discrimination against a defendant, ensuring a fair trial by an impartial jury, securing the defendant’s right to avoid self-incrimination through bifurcated proceedings and more.
However, the geographic disparities of the death penalty’s application, which rely on the deference granted to prosecutors, do not seem to contribute to the fear of its arbitrary application. I believe they should.
In ignoring these discrepancies, we implicitly condemn the same set of defendants to confront an enhanced risk of facing the death penalty. These are our usual suspects, who are not only geographically unlucky, but whose exposure to death is shaped by the socioeconomic and institutional circumstances surrounding their prosecution.
So why do we ignore this? Keri Blakinger ’14, a Pulitzer Prize finalist who has worked closely with inmates on death row in the course of her journalistic work, sat down with The Sun to discuss this very question. As she put it: “There’s also some very common misconceptions that a lot of people still seem to have. There is a surprisingly common belief that this is just standard, that if you murder someone, you get killed. A lot of people aren’t aware of how incredibly rare it is to actually be sentenced to death if you’ve committed a murder.”
Indeed, the death penalty is justified by exceptionalism, supposedly reserved for the ‘worst of the worst,’ which makes its rarity seem responsible. However, because of financial, political and largely discretionary reasons, it is administered through contingencies which silently cherry-pick just what the ‘worst of the worst’ entails, creating an arbitrary imposition of the death penalty.
Blakinger added: “Even if you happen to do it in a state that has the death penalty, it has to be a capital murder. It has to have specific extenuating circumstances that would even make it eligible, and some of those can feel a little bit random in some ways.” She continued, “aside from that, it has to have been committed in a county that is even interested in seeking the death penalty; which many are not. Either because they don’t have the money, or the resources, or it is not politically aligned with what that county’s prosecutors’ office is doing.”
We tell ourselves our system reprimands the ‘worst of the worst,’ when maybe we should see these exceptional cases as the exceptionally circumstantial intersection between capital eligibility, prosecutorial enthusiasm, geographic luck or lack thereof and available resources. Blakinger noted, “I think many people don’t appreciate the randomness to the way in which the death penalty is applied,” “It’s not complete randomness, but it’s a very specific kind of geographic randomness.”
Moreover, as Cornell Law School Professors John Blume and Theodore Eisenberg concluded in one study: “politicization of the death penalty issue has affected state court behavior.” This means that the political environment in which judicial professionals operate may influence how death-penalty cases are adjudicated, introducing yet another variable that has little to do with a defendant’s culpability.
Yet, as we have established, for retribution to be warranted, culpability must first be demonstrated in a credible manner, and a punishment inflicted consistent with our evolving standards of decency and precedents. How can this be possible when geographic, economic and political circumstances produce results foreign to each other in what appear to be similar cases? As Blakinger said, “Part of the idea of what justice is, is evenness.” Therefore luck is not invited. What may be invited, however, is responsibility, for “at the end of the day, it’s a system created by, and run by, humans. There’s always going to be elements of arbitrariness. … We, as citizens and voters, have to think about what level of randomness and unevenness is acceptable for our notion of justice.” Although arbitrariness may be indelible in a system created and governed by people, we can refuse to accept it when the stakes are most radical: when the punishment is death.
Elise Clifford '29 is an Opinion Columnist and a Philosophy and Russian student in the College of Arts & Sciences. Her fortnightly column, State of Confusion, approaches the liberties and anxieties honed by disagreement, and the responsibility that comes with forming identity. She involves aspects of symbolism and skepticism that accompany the weight of glorification. She can be reached at eclifford@cornellsun.com.
