Last night, October 15th, the state of South Dakota put Eric Robert to death.
Robert’s case was not clouded by questions of possible innocence, of the exculpatory DNA evidence that comes too late. There was no chance that the state was about to kill an innocent man: Robert pleaded guilty to his crime of murdering a prison guard in a botched escape attempt from the SD State Penitentiary in Sioux Falls. Neither was race a concern in this case: Robert was pretty clearly white.
In short, many of the perennial questions that surround capital punishment were absent. In the wake of Robert’s execution, we are faced with a single stark question, unencumbered by procedural concerns: does the state have the right to kill?
When a person answers “Yes” to this question, he or she usually justifies it one of three ways.
In the first place, defenders justify capital punishment on grounds of incapacitation: that killing a violent criminal will keep him from harming others in future. The counterargument is easily made that life in prison is just as effective at incapacitating potential recidivists. For instance, Norway recently sentenced right-wing terrorist and mass murderer Anders Behring Breivik to 21 years in jail. That’s the maximum sentence in Norway. And yet Norway has a murder rate one-seventh that of the United States.
Granted, Robert’s case is somewhat unique, since he was already serving 80 years in prison for a kidnapping committed in 2005, and was sentenced to death for a crime committed while imprisoned. But then, it’s worth wondering whether the danger that capital punishment introduces into society—that of a state with the absolute power of life and death over its citizens—is greater than the dangers averted by executions.
In the second place, the argument is heard that the state has the right to kill in order to deter potential criminals from committing violent crime. 88 percent of criminologists disagree, and their reasons are manifold. When a punishment is handed down as seldom as is the death penalty, with such unpredictability in whether the penalty will be pursued or not from state to state, region to region, even jurisdiction to jurisdiction, it is hardly guaranteed that any crime will receive a death sentence. Indeed, a string of U.S. Supreme Court cases—Woodson v. South Carolina (1976), Roberts v. Louisiana (1976), and Sumner v. Shuman (1987), among others—have forbidden mandatory death sentences for any crime. And predictability is critical to effective deterrence.
But then we have to wonder, along with U.S. District Judge Miles Lord, “about the constitutionality of sentencing one person for a crime that may be committed by another person at another time and place.”
And in the third place, many would say that a murderer deserves to die; that is, many would justify capital punishment on grounds of retribution. Eric Robert himself as much as admitted that he deserves to die for his crimes. More sophisticated, less vengeful retributionists argue that capital punishment is not so much about revenge, but rather about expressing moral outrage on behalf of the community. In order to show its abhorrence of murder, they argue, the community should have the right to impose the ultimate sanction.
Now, arguments over deterrence and incapacitation are fundamentally utilitarian: they involve calculations of social utility. And the abolitionist can easily answer the utility calculations of the defender with what she sees as more accurate calculations. The argument over retribution, on the other hand, plays out on different ethical territory entirely. It requires us to answer a fundamental and deeply unsettling question: can any human being sit in judgment of life and death over another human being?
And so we come to the crux of the matter. Let us leave aside for the moment the fact that a community hardly needs to kill in order to express its moral outrage, that lesser penalties might well suffice for that. For it strikes me that it is precisely on account of such arrogance, such lack of respect for the dignity of every human person, that we impose capital punishment in the first place.
Perhaps such a question is truly a matter of faith. For I know my faith that tells me no human being, no matter how evil, is wholly beyond the grasp of redemption. But whether reasoning or just believing, I simply cannot lend my assent to the proposition that we, as individuals or a as society, have the right, in cold blood, to take the lives of our fellow human beings.
And so today I think of the family of R.J. Johnson, and I wonder whether Eric Robert’s execution brings them solace. My heart aches for their loss, and no amount of political opposition to capital punishment can or should keep me from sharing in their pain as deeply and as humanly as I am able. But my heart aches also for a society that seeks to drive out violence with violence, to conquer hate with hate.
And I pray that the deaths of R.J. Johnson and Eric Robert might spur us on to make South Dakota a state in which we are all, in the words of Albert Camus, neither victims nor executioners. South Dakota plans to execute another man, Donald Moeller, within the next three weeks.
Our work is far from over.
–Tom Emanuel is the executive director of the South Dakota Peace & Justice Center