Is the death penalty even a penalty?

I recently watched Werner Herzog’s latest documentary feature Into the Abyss. The film examines the morality of capital punishment through the prism of a triple murder that took place in Montgomery County, Texas in 2001. Herzog dedicates a large portion of the film to recreating the grisly sequence of events that led to the murder of Sandra Stotler, her son Adam Stotler, and his friend Jeremy Richardson. The film also features interviews with the victims’ family and the families of the convicted murderers Matthew Perry and Jason Burkett, who were also interviewed. Matthew Perry, at the time of filming, was on death row for his crime.

The film is bleak, minimal and stripped down; devoid of all the usual flights of fantasy one is accustomed to in Herzog’s films- his so-called ‘ecstatic truth’. Perhaps attempting to portray the many ‘truths’ of this particular case, Herzog’s voice is uncharacteristically absent throughout (although he has made his position against the death penalty clear from the outset) and instead we are encouraged to make up our own minds by hearing the different voices of those on all sides of the crime. And in so doing he allows those grieving to have the final say, lest we forget that a terrible hurt was brought to bear on that grotesque night; irrespective of our own personal positions on the matter. It was a successful tactic. After watching it, I felt conflicted and wished for the comfort of categorical certainty. I thought about it for a while and my conclusion on the matter was that I was still opposed to the death penalty, but for different reasons.

It is an issue on which I have vacillated a great deal. Intuitively, from a young age I was always opposed to the concept of capital punishment. It just seemed unduly harsh and cruel, and before I was able to articulate my thoughts on the matter more coherently, it just ‘didn’t seem right’. As I grew older my position solidified, especially after watching Nick Broomfield’s documentaries on Aileen Wournos, and the films Dead Man Walking and Monster’s Ball.

I then, however, as most people do at some point in their lives, experienced the deep pain of loss; and it was then that I realised that I too had an appetite for vengeance and even death. Although I have never experienced the type of loss that Lisa Stotler-Balloun (daughter and sister to the murdered Stotlers) has, I empathised with her when she said that after witnessing the execution of Matthew Perry, it made her feel better. Particularly when she recounted a moment at the beginning of the murder trial, when, as she was sat in the public gallery, both Perry and Burkett, upon entering the courtroom and seeing her for the first time, had done a double take as she looked exactly like her late mother; a haunting image.

And one only has to watch scenes like this and this in courtrooms to understand the animalistic rage one feels after losing a loved one in such violent circumstances; the urge to punish like with like, is very strong.

Punishment, viewed in this way, is not then solely intended as justice for the victim, but also acknowledges that no individual exists in isolation, that the damage extends beyond that which has been done physically to the victim’s body- hence the use of victim impact statements during trial proceedings.

And most of us want to hurt someone who has hurt us. Which is exactly why punishment is administered by the legal system, and not the victim’s loved ones. Some may argue, however, that punishment should not be retributive, but rehabilitatory. Indeed this is true; however, it is not an either/or proposition. Punishment is always a mixture of the two, and indeed should be. Although we speak of justice for the victim, we must also speak of justice for the convicted, which must be manifold and not singular. The steps that must be taken against him/her as an individual must be as restorative and/or retributive as the particulars of the case demand; exactly why levels of culpability and remorse are taken into account.

Similarly in the same vein, the most obvious argument against the death penalty is a very practical one: human beings are fallible, their reasoning is not perfect, and it is possible to wrongfully convict someone. There are a plethora of cases in the US where the wrongfully accused have been exonerated whilst on death row. And recently, most disturbingly, a case has emerged of an American man who may have been wrongfully executed, in a serious miscarriage of justice.

But what if, by some miracle, human beings were suddenly gifted with perfect, infallible reasoning? Would the death penalty still be undesirable?

I would argue yes, for precisely the same reasons that I can empathise with the victims of violent crime, as well as acknowledging the humanity of the perpetrator (as much as people will argue against that, no legal system, or society would be complete without it). From the perspective of punishment, one is not punished when dead; one is incapable of feeling or experiencing anything. It is more of a cessation of punishment than anything else. And it almost goes without saying, of course, that this is equally true for rehabilitation.

Is this cold comfort for someone like Lisa Stotler-Balloun? For her, it was an injustice that Matthew Perry lived, whilst her mother and brother did not. Which makes me wonder if the catharsis of Perry’s execution was really just desert, or the removal of a stark reminder of what had been lost. That was not punishment; it was erasion. Of the person, the punishment, and justice.