Humans have long pondered how to punish people who unjustifiably kill other people. The Code of King Hammurabi of Babylon in 18 B.C. prescribed death as the punishment for 25 crimes. The 7 B.C. Draconian Code of Athens and 5 B.C. Roman Law of the 12 Tablets made death the only punishment for all crimes. Across time, the death penalty has been carried out by hanging, drowning, stoning, clubbing, burning at the stake, boiling, beheading, impalement, drawing and quartering, firing squad, electrocution, cyanide gas, and now by lethal injection of chemical agents.
In a 1767 essay titled "On Crimes and Punishment," Cesare Beccaria reasoned that there is no justification for the state to take a life. Beccaria's essay led to capital punishment being abolished in Austria and Tuscany, and influenced Thomas Jefferson to introduce a bill to revise Virginia's death penalty laws so that capital punishment would only be used for murder and treason. It was defeated by one vote.
For most of U.S. history, lawyers, judges, and scholars about crime and punishment highlighted four objectives for criminal punishment. One objective is to deter others from committing similar crimes against society. Dr. Benjamin Rush, a signer of the Declaration of Independence from Pennsylvania, questioned the notion that the death penalty has a deterrent effect on murder. Instead, he viewed the death penalty as having a "brutalization effect" that, perversely, works to increase criminal conduct.
Another objective is to express societal displeasure about criminal behavior by separating offenders from the rest of society. A third objective is to rehabilitate or reform persons who commit offenses. And the fourth objective is to exact retribution for the wrong done to society by criminal behavior.
In a recent guest column to this newspaper, State Senator Trent Garner asserted that the death penalty is morally necessary so relatives of murder victims can obtain closure for their pain. According to that argument, appeals in death penalty cases prolong suffering of relatives of murder victims and that suffering is only healed when the people who commit murders are killed by the state. Senator Garner then makes two baseless claims: 1. Opposition to the death penalty disregards suffering experienced by relatives of murder victims. 2. One's personal moral opposition to capital punishment disqualifies people like me from serving as judges in cases involving the death penalty.
Society always acknowledges and respects the anger, sorrow, and other pain suffered by relatives of murder victims by prosecuting and punishing people accused and convicted of committing murder. Criminal prosecution and punishment for murder demonstrates societal condemnation about the act of willfully and deliberately killing another person. We never express that condemnation only on behalf of surviving relatives of murder victims. Every criminal case in Arkansas, including every murder case, is styled State of Arkansas v. ___.
Societal anger, sorrow, and other pain with the relatives of murder victims reflects our collective sympathy toward them and the grievous suffering they bear. Yet justice involves much more than sympathy. Whenever people kill others without valid cause, justice requires that society search for and find killers, charge them with murder, conduct fair and open proceedings to determine if evidence proves their guilt beyond a reasonable doubt, and issue sentences that express public condemnation, including (but not limited to) our outrage, sorrow, and pain about the terrible wrong people convicted of committing murders have inflicted on society.
We do not entrust homicide investigations and decisions about whether to file murder charges, who should be charged, and what evidence can be introduced in murder trials to grieving relatives of murder victims. We do not allow relatives of murder victims to preside over and be jurors in the trials of people accused of wrongfully killing their loved ones. Grieving relatives are never permitted to set or carry out sentences, no matter how much we sympathize with and respect their pain.
However much we sympathize with relatives of murder victims, we know better than to confuse sympathy with justice. Judges instruct juries in every criminal case that passion, prejudice, and sympathy must never affect juror decisions about guilt or punishment. However much judges and jurors may be outraged, sorrowed, and pained, fairness demands them to know and respect the fundamental difference between feeling sympathy and doing justice.
Justice also involves far more than satisfying bloodlust--meaning desire for vengeance. Bloodlust is real for relatives of murder victims and for the wider society, but it is questionable whether killing people who murder others can or does satisfy personal or collective bloodlust. While people may disagree on that question, we should honestly admit the big difference between satisfying bloodlust and justice--doing what is right.
We have long known it is not just for society to hire people to rob thieves, torch the houses of people who commit arson, or torture people who commit battery. We know it is not right just for society to hire and command people to rape people who commit rape. Neither Senator Garner nor anyone else claims that having public employees sexually molest people convicted of child molestation will provide closure for children who have been molested or closure for their relatives. We do not lack sympathy for robbery, battery, arson, rape, and child molestation victims or for their loved ones. We reject and abhor such "eye for eye, tooth for tooth" punishments in those crimes because we know they are fundamentally wrong.
I oppose capital punishment--the state-sanctioned premeditated and willful killing of people convicted of committing premeditated murder--for similar reasons. I have followed Arkansas law in capital and other murder cases, including allowing executions to go forward when the law so requires, despite my personal moral and religious views. I can and will continue doing so, however displeased Senator Garner and others may be about my moral and religious opposition to capital punishment.
Personal opposition to capital punishment does not make me or any other judge biased or unfit to preside over capital cases. The U.S. Supreme Court declared in Witherspoon v. Illinois (1968) that it is unconstitutional to dismiss potential jurors solely because they express opposition to the death penalty.
I am free to believe that capital punishment is morally wrong and free to express that belief as a follower of the religion of Jesus (who was crucified by the Roman Empire). Neither I, nor anyone else, may be punished or otherwise discriminated against by the government for holding and expressing that religious conviction in lawful ways.
Fair-minded people disagree about whether satisfying bloodlust actually produces closure for grieving relatives of murder victims. However, we know the difference between sympathy, bloodlust, and justice. We reject demands for "eye for eye, tooth for tooth" punishments in all other crimes because we know them to be morally wrong and fundamentally unjust. Dedication to fairness and justice should inspire us to follow the same reasoning when we punish people who commit the most reprehensible murders.
Rev. Wendell Griffen is pastor of New Millennium Church in Little Rock and Circuit Judge for the Sixth Judicial District of Arkansas (Fifth Division).
Editorial on 10/29/2017