Liberalism and the Death Penalty

with Craig S. Lerner,
hosted by Richard M. Reinsch II

Is the abolition of the death penalty in most western countries an unmitigated good? Craig Lerner, Professor of Law at George Mason’s Scalia Law School, discusses this question and the willingness of liberal societies to defend law and order.

Richard Reinsch: Today we’re talking with Craig Lerner, Professor of Law at George Mason’s Antonin Scalia Law School, about the moral and political meaning of the death penalty and if its demise is, as we are frequently told, imminent. Professor Lerner, you recently wrote an essay on the death penalty called “Is the Death Penalty Dead?” in the most recent issue of the Claremont Review of Books, which I read and thought significant. You analyzed this punishment through several different ways: political, philosophical, and also a geographical survey of jurisdictions around the world, civilizations around the world, and how they treat the death penalty.

Before we get into your essay, maybe just an obvious question here, one that I think any enlightened, certainly liberal arts professor would ask: Is it not an unmitigated blessing that the Western world has basically abolished the death penalty, America excepted?

Craig Lerner: Well, I would say no. Or, I would say that it’s at least a question whether the impulse to abolish the death penalty is unambiguously good, or whether it reflects a diminishing impulse to justice and a sense of a community that demands justice that is not unambiguously good. I would say certainly there’s a narrative that the decline of the death penalty in the West is an attempt to support higher principles of the enlightenment. And that the impulse to retain the death penalty is atavistic urge to pursue vengeance, which we should welcome its demise. But I think there’s a legitimate argument on their side that has been articulated many times over the centuries, and I think still has some viability today.

Richard Reinsch: What does it mean? What does it exactly mean to abolish the death penalty? Is it in fact an unwillingness, or even not an unwillingness but just a sheepishness about imposing justice on those who commit heinous crimes? A lot of people remarked the Norwegian shooter who murdered 70 teenagers on an island in Norway was a political assassination. Obviously a deranged person. But the most he could receive for that crime, I read, was 20 years in jail. Of course, in America you would probably receive the death penalty. I mean, that sort of I think maybe illustrates your point.

Craig Lerner: Right, and a similar case when the bombings in Madrid in Spain.

Richard Reinsch: In 2005.

Craig Lerner: Right. 200 people died. I think that in that case, I forget exactly what the punishment was, but it was comparable. Again, a mass murder and a Western European nation imposing something not simply less than death, but just less than life. And the question is if that’s something that we should applaud as a sense that these nations have ascended to a respect for human rights? Or is it something to be concerned about that a nation will tolerate this grievous harm to the community and not have the conviction to exact a far more serious punishment?

Richard Reinsch: Now, thinking about your essay. You do something interesting in it. In this, you review three books, The End of History and The Last Man by Francis Fukuyama. Famous book, obviously. And also another famous book, The Clash of Civilizations and The Remaking of World Order. Also, a third consideration is the late Walter Berns’s book on capital punishment, Crime and the Morality of the Death Penalty. How do these works illustrate the way you write about the death penalty and what it means for nations?

Craig Lerner: Well, the two books have been often paired because they present these very competing frameworks for viewing the world and predicting its trajectory. Fukuyama’s book, which to some extent has been caricatured, because I think his thesis is more nuanced than it’s sometimes made out to be. But at some level it is this idea that the principles in the Western enlightenment are being adopted throughout the world. And this is somehow an inevitable ascent of almost a Hegelian necessity. In this view, the world is ascending to a particular world view that will have universal adoption.

And then Huntington two years later counters with a different framework that suggested that he saw that the world was divided now and would, at least as far as we could see into the future, would continue to be divided into these different civilizations that are rooted in different histories and at some very high level value different things, and that this will continue.

Richard Reinsch: Thinking about Fukuyama, who I think is also a student of Alexander Kojeve, that some other future would be a universal homogenous state, more or less. I mean, that’s a simplification of Fukuyama’s thesis, but a liberal democratic world order in which, what? What would that mean though for how we defend that position? Or would it need a defense so much as just verbal articulation and defense that way because its gifts would just be so manifestly good.

What would that mean for punishment? What would that mean for how one would defend these orders? Or would they need to be defended because they’re just good in themselves and that would just be realized? Yeah.

Craig Lerner: It was a small part of Fukuyama’s book, a very small part. I don’t want to make it out to be a crucial part of it, but I was struck that at one point he suggested modern liberal societies would have a decreasing tolerance for violence. He predicted that the spread of compassion, the sense that it’s simply wrong to punish people would gain in wider and wider acceptance. He thought that that would correspond to a decrease in support for the death penalty. And, as a description and as a prediction, that seems to have been correct, in the Western world at least.

Richard Reinsch: The exception of America.

Craig Lerner: And then even in America, sorry.

Richard Reinsch: But, I think also here, you quote as a response, I mean he wasn’t responding to Fukuyama. The book was published in 1979. But Walter Berns’s book for capital punishment. Let me read you a quote from that book and get your reaction. “There is a point in the history of society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly.”

Craig Lerner: Actually this sort of situates that book in a particular time in American history. It’s actually quite interesting. There was a Supreme Court opinion in 1972 which had the effect of imposing a moratorium on capital punishment.

Richard Reinsch: Furman vs Georgia.

Craig Lerner: 1976 there was another opinion that essentially said that with amendments that capital punishment could continue. But at the time that Berns wrote the book, and there were very, very few if any, I think, executions. It is interesting that he wrote at a time in which it seemed as if capital punishment was, if not exactly dead, in its death throes. What’s interesting is that in the years that followed Berns’ book is capital punishment did make a significant return. And actually the number of executions in America increased over the next 20 years, reaching its height around the year 2000 at around 100. Actually, it is interesting that these things go in cycles and so it did reach a low point in 1979, but it returned and I think we’re actually retreating again.

Richard Reinsch: The perception in the ’70s and ’80s was, rightly so I think, of a crime wave in this country, particularly in urban areas. The death penalty became a response of what the revenge, blood lust of Americans had returned. You note in the book that after this Supreme Court opinion in Furman vs Warren, Furman vs Georgia, 35 states reenacted death penalty statutes. What do you attribute that to? And maybe now it’s this perception that the war on crime has been won in a big way. We hear the stories of large cities, New York, Chicago, other places where crime is greatly declined. Although recent upsurge in the last few years I’m told and so similarly does that explain a falling off the death penalty?

Craig Lerner: Well, it is true that there was the crime wave in the ’80s and you can explain in some sense that the increase in executions by that, although I think that it was interesting after Furman that this, I’m not sure how high the crime rates were in the ’70s. I think what was striking to me when I researched this in the early ’70s you had the justices, apparently some of them amongst themselves, they’re wondering whether it is even necessary to abolish the death penalty because in their view, the support of the death penalty was declining and it would evaporate even without any elitist intervention.

And it was so striking that immediately after Furman was decided, you had this overwhelming number of states saying, no, we want the death penalty. To me that was just part of an interesting kind of narrative in which elitist opinion or elite opinion consistently underestimates the depth of the support for capital punishment. And I don’t think that support is simply a matter of assessing crime waves. I think it goes to something deeper about what people think is just.

Richard Reinsch:  That would be sort of the elite read of opinion regarding the death penalty that it’s sort of blood lust and that’s about it.

Craig Lerner: And in recent years, the number of executions has gone down actually about 20 or so this year so far, 25 last year, which is again down from the peak around 1999, 2000. But, and even more dramatic, the number of death sentences has declined. I would wonder, I’ll just say one quick thing. I would wonder whether that represents a really significant decline in support for the death penalty or just the incredible number of legal hurdles that are now necessary to be surmounted before a death sentence could be imposed?

Richard Reinsch: In 2015, Supreme Court justices, Stephen Breyer and Ruth Bader Ginsburg, and you used a quote, “The death penalty is dying away and majority of Americans reject capital punishment.” Justice Antonin Scalia astutely responded, “Welcome to Groundhog day.”

Craig Lerner: And the very next year, as I pointed out, as many people have pointed out, there were these state referenda in Oklahoma, Nebraska, and California about the death penalty and the ones in Oklahoma and Nebraska, the death penalty one by two to one or 60% but it will seem even more striking in California. There were two referendum and each one with respect to the death penalty won narrowly. I don’t want to make it out to be overwhelming. But, even in California.

So in the last few months, the Governor of California commuted the sentences, which was totally unnecessary because none of the people on California’s death row are going to be executed. But it was a symbolic gesture. It was noteworthy. It’s still the governor doing it because it couldn’t prevail or didn’t prevail in the referendum.

Richard Reinsch: But that sort of prompts a question and you ask it in your piece. Why does America bother to retain the death penalty? I mean one answer would be, we have an incredibly secure criminal justice system. We can warehouse these people, criminals for the rest of their lives. They’re not a danger to the community. It’s not a question of resources allocation really. So why retain it? Why do we retain it?

Craig Lerner: I don’t want to suggest that there’s not a good argument for abolishing the death penalty in the quite peaceful and orderly conditions of the West. So there are strong abolition arguments. My point is that there are also very strong arguments on the other side. And actually it does seem as if the arguments that have been raised for millennia by virtually every political philosopher who thought about the issue until, Cesare Beccaria, the Italian criminologist in the 18th century. But I mean sort of the monolithic Western tradition on this has been support for the death penalty until 1800 or so.

The founders all thought it was morally justified with just one minor exception. Benjamin Rush. So Abraham Lincoln thought it was morally justified, Immanuel Kant thought it was morally justified. So I mean it’s not like these are odd creatures who we can regard as morally debased.

If you put Abraham Lincoln and Immanual Kant on one side and you’re on the other side, if you were in favor of abolishing the death penalty. So I guess the question is who bears the burden here? If I’m supporting the death penalty, I have Immanual Kant and Abraham Lincoln. You have Benjamin Rush and Cesare Beccaria. So who’s the weightier figure? So I mean, I would just say that this is one way of approaching this, but I would say with respect to why America retains the death penalty is that there are certain crimes that just seem to call for the greatest punishment because the harm to the community was so grievous that anything less than that would somehow be disproportionate and unjust. At least that’s a sentiment that many people have. And I think the criminal justice system to some extent has to reflect the views of the community.

Richard Reinsch: Moral retribution. Would be a philosophy that would support the death penalty, I think. How difficult is it to execute someone inside the United States?

Craig Lerner: Well, it’s extraordinarily difficult. After Furman vs Georgia, there’s a 1976 opinion that essentially said that states could have a death penalty under certain conditions. And over the past 40 years, there’ve been just dozens of precedents and some would say that ever changing goalposts as to what the states must do in order to achieve a death sentence. And you know, actually, first of all, you could say in response, well, it should be very hard. And I don’t question that. It should be very hard. First of all, we are in a criminal justice system in which it’s established that before you can even get a conviction, the state has to prove beyond a reasonable doubt every element of the crime. So it is difficult and it should be difficult. and it should be difficult then to get a death sentence.

And the way it operates today is there’s a completely separate penalty phase in which you have the state introduce aggravating factors and the defendant has an opportunity to raise mitigating factors. And at this point, although it’s never been healthy, constitutionally required, in every state, there needs to be a unanimous and the federal system, that unanimous jury verdict in favor of the death penalty. So only one juror can dissent and could prevent the death sentence.

So there’s simply that mechanism that it’s very hard to secure a death sentence. And then even if a death sentence is secured, then you’re talking about decades of appeals and in many jurisdictions in America today, it’s extraordinarily difficult to prevail in affirming that death sentence.

Richard Reinsch: Also we were discussing Western nations and the abolition of the death penalty almost. It seems also what’s lurking in here though is secularism, progressivism, and individualism, sort of a loss of belief and injustice or truth, accountability for one’s actions. This seems to me, what I think about the West and I kind of situate this within the Roman Catholic church’s response to the death penalty from Saint John Paul the Second forward, which has been at least up until Pope Francis that it was justified, but prudentially unwise, or it shouldn’t be done really anymore in the West.

Of course, he didn’t limit it to the West, but as I thought about that, and the support for the death penalty, it seems to me more of a, I’ll say extension of the enlightenment more than anything else for the retraction of support for the death penalty.

Craig Lerner: Yeah, I agree completely and actually Justice Scalia made this point, various points and he’s not the only one that the decline of the death penalty corresponds to an increase in secularism, not an increase in the religious impulse. And it’s noteworthy that in Western Europe where, which it has declined in its influence that the death penalty has quickly taken hold. And I actually wondered about this and was hoping to do a kind of empirical study, but it does seem as if you know those states in which you’re more likely to find church attendance, you’re more likely also to find capital punishment. So it is nonetheless striking. As not a Roman Catholic, I don’t want to opine on what  the Church is doing.

But I do want to point out actually there was a very interesting book I mentioned that you may be aware of it or maybe some of your listeners, by Edward Feser and Joseph Bessettw, which I came across, and it’s By Man Shall His Blood Be Shed. So these are Catholics who are questioning I think the view of Pope Francis on the death penalty. And so they gather a great amount of evidence that calls into question, I think the current Pope’s view that the death penalty can’t be justified. So I recommend that book for it.

Richard Reinsch: And I think it’s also worth pointing out, that’s interesting too just thinking about first a major starring role, so at least within Christianity against death penalty is really more the egalitarian strains of the Reformation, which are really calling into question authority generally, but also government authority. And I think there’s also this sort of attribution to the government of sort of individual agency as opposed to seeing it as a separate entity called to uphold order itself or impose order, maintain it, and that it stands in a trustee relationship. It’s not acting and thinking as an individual.

Craig Lerner:  Yes. Actually Justice Scalia made that point in his, I think in his First Things essay on the death penalty back in the 1990s. So I’m inclined to agree with that.

Richard Reinsch:  So let’s think about also, in the essay you moved through geographically and civilizationally around the status of the death penalty. Talk about that.

Craig Lerner:  So that was I thought one of the contributions of that article is that if you look at the global trends in the death penalty, I mean there’s one way of looking at it, the way Amnesty International does it every year now where you kind of do it the way that the UN General Assembly would do it. You count the nations that have de jure or de facto to abolish the death penalty, and if you do it that kind of way, something like 170 of the 193 nations in the world have abolished the death penalty.

But I thought that that was probably not the best way to approach this. So I thought looking at it through Huntington’s civilizational framework was quite interesting because if you do it that way, that the trends are far, far less clear. First of all just pointing out for a second that of the 170 of 193 nations that abolished the death penalty, if you look at population wise, I mean the nations that have retained the death penalty correspond to over half the nation’s population and over half the world’s population over half the world’s GNP.

The 23 outliers are actually significant nations. But then if you just look through the Huntington framework, you’ll discover that what he calls the Sinic civilization, which is predominantly China, overwhelmingly has retained a death penalty. The Japanese civilization, and this is Japan, when I wanted to focus on because it’s really a complete embarrassment to those who really make a lot about the embarrassment that the United States has retained the death penalty. They always have to gloss over Japan because I haven’t actually crunched this, but I strongly believe that on a per homicide basis, Japan has more executions in the United States and it’s been that way for the past 20 years.

So it’s hard to question Japan’s status as either a civilized or industrialized nation, but they retain a death penalty. And then you go to the other civilizations in the world, I mean the Islamic civilization in the world there, there are nations that have to some extent abolished it, but there are also other nations that have very emphatically retained a death penalty. And so that’s what I go through the various civilizations and it’s unclear whether the West is the dominant or the outlier or in any event, the minority of you here.

Richard Reinsch:  And I think also you raised the question, so when we talk about these sorts of issues or the assumption is the hegemony of the West and the inevitability of the West, but that also is something that can easily be called into question. We don’t have to imagine that far ahead in time to see now the rise of China, the ongoing diminishment of Europe population wise, resource wise. And so you begin to think that this is really a perennial question. It’s not something that’s going to be solved by sort of aggressive mentality of the end of history.

Craig Lerner: Right. I mean, it was striking to me is how when we even speak about European abolition, the death penalty, I mean it’s really Western Europe frankly, that has abolished the death penalty. Essentially Europe and Eastern Europe have gone along because they’ve been basically made to by the EU leaders. But if they ever had an opportunity, many people have very strong doubts that the nations of central and Eastern Europe would go that way if they were free not to. So there’s that.

And then the power of the EU to brow beat other nations of the world. Again, at this point, they do have that power, but you know, who knows with population trends and economic trends whether the EU will continue to have that power.

Richard Reinsch:  You note in the article, January 2018, the Israeli Knesset voted preliminarily to authorize capital punishment for convicted terrorists and EU delegation to the state of Israel criticized the move promptly. And then also with the question, the nation of Sri Lanka, the EU threatened to withdraw the favor trade status if they reinstated the death penalty. So not afraid to throw their weight around.

Craig Lerner:  The Sri Lanka thing struck me as just amazing because the conditions in Sri Lanka is so vastly different from the conditions in Brussels and it does seem excessive to demand that the nation of Sri Lanka abolish the death penalty. And of course that actually was before the horrible Easter Sunday killings. So I mean the conditions in Sri Lanka are just so different from Brussels, but to insist that Sri Lanka have abolished the death penalty seems unfair.

Richard Reinsch:  Another form of colonialism in a way.

Craig Lerner:  You could suggest that, yes.

Richard Reinsch: Thinking about the death penalty also and the European Union, European Union has no army or armed forces to speak of. And of course many European nations themselves have pared back their defense forces and also have abolished a death penalty. Did you see a connection there at all in a sense of an unwillingness to think seriously about what order requires and the willingness to defend one’s community?

Craig Lerner: Right. I think this leads into actually in your essay you connect the death penalty or Europe’s attitudes for the death penalty through the work of Pierre Manent. I think that’s where leading with this question is that it seems of a piece that an unwillingness to confront the state of nature that lies behind civil society goes along with both an unwillingness or difficulty in retaining an army as well as the difficulty in pursuing the death penalty against those who have committed horrible crimes. So you could see them at some principled level being the same.

Richard Reinsch:  Yeah, and when I wrote that essay, it was in 2018 after Pope Francis had made the decision that somehow within Catholicism he could unilaterally change the teaching on that and condemned the death penalty outright. And then I began to wonder about Pierre Manent’s point when he looked at his native country of France and also European nations more broadly, and he looked at America and said, “What really separates America from Europe is their willingness to defend their nation state evidenced by the ability to project force abroad.” He said this in 2007.

But also their retention of the death penalty because the use of the death penalty is to suggest that the state of nature never goes away. And the European insistence is that somehow we’ve surmounted that and there’s nothing really to be afraid of. There’s no danger here. There’s just sort of permanent prosperity. And Manent said to the effect, if you make that move, that somehow nations begin to lose moral authority before their people. And I’ve reflected a lot on what he means by that. And I think it’s sort of an evisceration of any real devotion or standing on the part of citizens to their country. And the refusal to defend it in a lethal way.

Craig Lerner:  I think that putting it in a favorable light, the impulse to execute criminals is a way of affirming your sense of a community so that the person who was killed or the family of that person, they’re not strangers to you. They’re part of a community that you value, you treasure it. The harm that was done to them is a harm that was done unto you. You feel anger about that. And anger is not something that we want to promote, but it’s not something we want to extinguish. We want to channel it in some way that’s how they can do so. Assuming that it’s not a lynching, it’s after appropriate judicial process.

So you could say that the impulse to execute a criminal is a willingness to absorb a great cost because the person who died was not a stranger to you. And similarly, the willingness to go to war to defend one’s nation is a sense that the nation or the community means something that you’re willing to absorb a cost. So I think that the two are united in that way. It could be seen as united.

Manent makes another connection about the refusal to put the worst persons to death in your country. Also, it seemed to go along with the unwillingness to defend your country in war. That is, how could I be asked to do this if the government doesn’t even do this? It’s sort of another interesting way to reflect on it.

Craig Lerner: Right. And now I think Walter Berns in his book on the death penalty talks about the majesty of the law as being most displayed by the use of the death penalty. And if law is simply seen as an instrument of self interest, it kind of loses its power. And sometimes the death penalty is a way of a nation saying, this is something that the law is something more than simply the instrument of self interest. It’s essentially greater than that.

Richard Reinsch: You end your essay with an interesting account of the trial of the Tsarnaev brothers. Dzhokhar Tsarnaev who participated in the Boston marathon bombing in 2013 and along with his brother who was killed, which I didn’t know this, that the federal prosecutors sought the death penalty as punishment. And in this sentencing phase they had to go through the sort of celebrity Catholic sister Helen Prejean who spoke out against imposing the death penalty on him and you sort of quote the back and forth between the prosecutor and Prejean. And what he nicely does is communicate to the Boston jury, she’s not a part of our community. She does this all over the world. She’s sort of a celebrity in this regard, humanitarian celebrity. That’s really how she’s seen. So why would you necessarily listen to her? I thought that was an interesting, interesting part of the essay.

Craig Lerner: And I had the fortune of talking to one of the prosecutors on that trial team and he was discussing the strategy that they were thinking about. How to cross examine that witness, which they knew she was going to come and testify and they had a sense that she was going to come and testify that she had spoken to Tsarnaev and that he was repentant. And Helen, she’s a quite sympathetic figure, especially to probably a predominantly Catholic jury in Boston. And so they had to think about how to undermine her testimony. And so they just needed a few questions to bring out that she really wasn’t from Boston. She was kind of a globe-trotting as you say, celebrity.

And so they did get the capital sentence there. And I should just say that, I mean it was really testament to the horror of that crime that the jury returned the death verdict. Because you have actually, there are several cases in the past few years in which really quite, quite heinous crimes and the jury has not returned a death penalty. So, but in that case the jury did so.

Richard Reinsch: And I thought also, we’ve been bringing it up as we’ve been talking about sort of this aspect of defense of the community, the Boston marathon, at least the things that I’ve read about, it was really a significant event within the city for the city. It’s well attended and regarded as sort of an annual event that marks the changing of seasons among other things. And so that all seems to go to that idea as well of this is our place and you tried to destroy it.

Craig Lerner: Right. There are actually a number of interesting things about that because actually that the prosecutor told me one. One of the victim’s family in that case actually requested that federal government not seek the death penalty and they pursued it anyhow. Which is interesting because it really makes the point that in some sense the criminal trial that the client for the prosecutor is not quite the victim. It’s the community in general. Of course the victim is someone extremely important in a criminal trial and I don’t want to discount that, but, the harm was to the entire community of Boston, not just to the people’s families of those who died or were injured.

So it was a controversial decision on the part of the federal government there to seek the death penalty. President Obama’s Department of Justice to seek the death penalty because Massachusetts has abolished the death penalty. One of the victims did not want the death penalty, but nonetheless, then they pursued it and they did get a verdict.

Richard Reinsch: I’ll conclude with your last sentence from the essay, “The evidence suggests that the death penalty is far from dead.” Craig Lerner, thank you so much.