Douthat's column can be read in full here.
It's already been dissected ably by TBogg, driftglass, Susan of Texas, Freddie deBoer, John Casey, and Steve M. Feel free to check those out; I'll make some similar points, and as usual, I'm getting to this way later than I'd have liked. But while Douthat making poor and disingenuous arguments is nothing new, this piece exemplifies his worst traits and cannot receive too much scrutiny.
September 24, 2011
Justice After Troy Davis
By ROSS DOUTHAT
IT’S easy to see why the case of Troy Davis, the Georgia man executed last week for the 1989 killing of an off-duty police officer, became a cause célèbre for death penalty opponents. Davis was identified as the shooter by witnesses who later claimed to have been coerced by investigators. He was prosecuted and convicted based on the same dubious eyewitness testimony, rather than forensic evidence. And his appeals process managed to be ponderously slow without delivering anything like certainty: it took the courts 20 years to say a final no to the second trial that Davis may well have deserved.
For many observers, the lesson of this case is simple: We need to abolish the death penalty outright. The argument that capital punishment is inherently immoral has long been a losing one in American politics. But in the age of DNA evidence and endless media excavations, the argument that courts and juries are just too fallible to be trusted with matters of life and death may prove more effective.
The invocation of DNA evidence is odd and unclear, since it's lead to innocents being freed, and capital punishment opponents are all for a more accurate judicial system. Still, let's say Douthat's on decent ground here. He glosses over the many arguments against capital punishment, particularly those about its inherent immorality, but in an op-ed with limited space, this may be forgivable. Poll data shows that public opinion is not as clear-cut as Douthat suggests:
A 2011 Gallup poll showed 61% of Americans favored it in cases of murder while 35% opposed it, the lowest level of support recorded by Gallup since 1972. When life in prison without parole is listed as a poll option, the support for the death penalty drops substantially; a 2010 Gallup poll found 49% preferring the death penalty and 46% favoring life without parole.
Nonetheless, Douthat's last sentence here seems to be his main point: for death penalty opponents, emphasizing that innocents have and will be killed will persuade more people than arguing that execution is inherently immoral. All right.
If capital punishment disappears in the United States, it won’t be because voters and politicians no longer want to execute the guilty. It will be because they’re afraid of executing the innocent.
Douthat rephrases his previous point. Again, there's some truth to this. It's probably Douthat's best paragraph.
This is a healthy fear for a society to have. But there’s a danger here for advocates of criminal justice reform. After all, in a world without the death penalty, Davis probably wouldn’t have been retried or exonerated. His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.
This is Douthat's first huge pivot in the op-ed. Counterintuitive arguments can have substance, and when backed by empirical evidence and sound reasoning, can even be profound. On the other hand, shallow contrarianism is a favorite ploy of Slate writers and other hacks. It's a good way to churn out something provocative, to attract a few links, and to posit one's self as a bold, independent thinker. The shallowest and silliest counterintuitive arguments amount to little more than debater's tricks or attention-seeking ploys, pseudo-intellectualism sold with swagger, glossy enough to fool some of the rubes, but not capable of holding up to deeper scrutiny. Let's see where Douthat falls on the spectrum.
His main argument seems to be, "Careful what you wish for, death penalty opponents!" bolstered by, "That more effective argument I just mentioned? It's not that great, after all!" Astute readers, remembering the glaring fact that Troy Davis was in fact executed and is thus, ya know, dead, may at this point be thinking to themselves, "What a load of bullshit." Douthat emphasizes his point in the next paragraph:
Instead, he received a level of legal assistance, media attention and activist support that few convicts can ever hope for. And his case became an example of how the very finality of the death penalty can focus the public’s attention on issues that many Americans prefer to ignore: the overzealousness of cops and prosecutors, the limits of the appeals process and the ugly conditions faced by many of the more than two million Americans currently behind bars.
Douthat's throwing out a great deal here, perhaps to see what sticks. Most strikingly, Douthat is indeed arguing that Troy Davis – who was recently killed – is a lucky ducky. Holy crap. (I'm envisioning a cocky high school student confident in his powers of bullshit standing up to make his bold, daring, opening statement, smugly assured that his opponent will be flummoxed and never see this one coming.)
You may have noticed that Douthat has conveniently completely glossed over whether capital punishment is moral or not. We'll return to that. But he's basically said, "Argument B is more effective than argument A – but argument B isn't effective, either!" He's attempting to tightly frame the terms of debate and move it to ground where he thinks he can win. In the process, he's implicitly characterized death penalty opponents as only caring about banning capital punishment in the long run, not caring about its inherent immorality, and not caring about injustice to Troy Davis specifically. (Those death penalty opponents are a cold, crafty bunch.) He's also used a preposterous, offensive argument to get this far. Douthat's at least partially aware this is a hard sell, so he piles it on:
Simply throwing up our hands and eliminating executions entirely, by contrast, could prove to be a form of moral evasion — a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked. We should want a judicial system that we can trust with matters of life and death, and that can stand up to the kind of public scrutiny that Davis’s case received. And gradually reforming the death penalty — imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well — might do more than outright abolition to address the larger problems with crime and punishment in America.
At this point, Douthat has completely jumped the rails (although he'll range even further). Who, exactly, is supposed to be performing this "moral evasion," beside Douthat himself? In an amazing coincidence, the same people who object to capital punishment also tend to be concerned about injustice in general, including "the overzealousness of cops and prosecutors," and "the ugly conditions" and "more pervasive abuses" many prisoners face. Perhaps Douthat's heard of the Innocence Project, the ACLU, and the Southern Poverty Law Center? On the international front, there's Amnesty International, Human Rights Watch, and various agencies at the United Nations. The Red Cross has long been charged with monitoring humane conditions for prisoners. In fact, they delivered a thorough and damning report on torture under the Bush administration. (It bears mentioning that Douthat has long been generally supportive of Bush and Cheney, including vouching for their good faith on torture and abuse, but did at least support investigations.) Douthat presents a grotesque and despicable false choice here.
Douthat writes, "We should want a judicial system that we can trust with matters of life and death, and that can stand up to the kind of public scrutiny that Davis’s case received." Why? Where is the slightest bit of support for the first half of this statement? Douthat is once again trying to assert that the death penalty is moral without directly arguing the point. He wants us to take it as a given. By all means, we should work to ensure that our judicial system is fair, can accurately assess the facts, and actually delivers justice. How does it then follow that we should execute people? Douthat seems to be arguing that executions somehow are the mark of a good system... and what? For what purpose? Perhaps it will impress the cool kids, I guess, never mind that many other nations have abandoned capital punishment. Possessing the wisdom to make a life and death decision – if necessary – in no way obligates one to takes someone's life... especially if it is not necessary. Douthat has yet to argue that it is necessary, or that capital punishment is moral. It’s as if Douthat has argued that America's doctors should be so good they can re-attach severed hands – therefore, we should chop off peoples' hands!
He argues that the system should be able to hold up to scrutiny – no disagreement there – but then essentially wants to ignore it if it doesn't. The obvious answer to the system killing the innocent is to suspend executions in the short term, or just abolish the death penalty altogether. Douthat doesn't want that outcome, however, nor is up for challenging it directly, hence his convoluted and scattershot arguments. Here, he claims to favor some "gradual reform," firmly in the Buckley conservative tradition of standing athwart history yelling stop, in this case asking us to search our consciences so that we… continue to execute people.
You may have noticed that Douthat is for the death penalty yet claims to oppose prisoner abuses; all right. Apparently, that's his sense of justice. Yet he still hasn't bothered to argue that the death penalty is just. Nor has he bothered to argue why death penalty opponents are wrong to hold executions as unjust. Instead, he's trying to argue that there's somehow a disconnect, in terms of consequences if not necessarily philosophically, between fighting against capital punishment and fighting for humane treatment of prisoners. That's rather obviously ridiculous, and also pretty offensive given the stakes of this issue. But then, almost all SAHYS arguments (Standing-Athwart-History-Yelling-Stop) rely heavily on theorizing unconnected with facts, and conjuring dread (often implausible) consequences.
Douthat isn't content to stop there; he pushes further, insisting we should want this system, implying that our national honor will somehow be stained, or we will be morally weak, if we don't execute people. I'm not sure if Douthat's arguments are just poor logic or pure sleaze, and they're probably a bit of both, but I'm more inclined toward the latter. My chief objection is that he just isn't honest, and keeps doing an convoluted end-around to get to his pro death penalty stance. He could instead make a forthright case for the death penalty, and directly address the many arguments against it. That, however, has never really been Mr. Douthat's style, and I think he believes his arguments are awfully clever.
Douthat's column is a row of straw men (and we'll return to it in a bit), but it's worth taking a step back at this point to consider the many reasons to oppose the death penalty that he ignores. The Death Penalty Information Center site (DPIC) gives an impressive and thorough overview on the subject, but I'll recap a few arguments here. You don't need to agree with all of these, but were you a serious public intellectual like Mr. Douthat and you supported the death penalty, you'd address at least some of them. Off the top of my head:
1. The Death Penalty is Immoral: It is simply immoral to kill another human being, especially if one has a choice.
2. The Death Penalty is Final: Unjustly held prisoners later found innocent can at least be released from prison and paid restitution. Killing an innocent person cannot be undone.
3. The Justice System is Fallible: DPIC reports that "since 1973, 138 people in 26 states have been released from death row with evidence of their innocence." How many more innocent people have been imprisoned or executed that we don't know about? (Needless to say, argument #3 ties in very strongly with #2, and related to #1, it forms a very strong moral argument against the death penalty.)
4. The Death Penalty has No Proven Deterrent Effect on Society: While this remains a topic of contention and speculation, the burden of proof is on those who advocate an irreversible action – killing another human being. In fact, the murder rate is consistently higher in states with the death penalty.
5. The Death Penalty is Expensive: Because of the cost of capital trials, appeals, and other factors, the death penalty is very expensive, much more so than life imprisonment would be.
6. The Death Penalty is Primarily About Vengeance: The primary reason we have the death penalty is not because it deters other crimes or is cheaper or anything else so practical. It's simply because some people want other people to die. This may be due a specific sense of justice, that some crimes are unforgivable and/or the executed deserve it; it may simply be bloodlust; it may be some mix. Regardless, it's deeply dishonest to pretend that a desire for vengeance is not a driving factor.
7. The Death Penalty is Part of a Continuum of Abuse: Camus argued that it would be impossible to eliminate war without eliminating capital punishment. Essentially, the state is advocating killing as a respectable solution to problems. It's hard to conclusively prove all the negative effects of a death penalty mindset, but when it comes to general abuse, torture, and the "accidental" killing of prisoners, there's quite a bit of evidence. The Oscar-winning documentary Taxi to the Dark Side does a superb, chilling job at delving into this, and as Soviet-era torture victim Vladimir Bukovsky put it: "Why run the risk of unleashing a fury that even Stalin had problems controlling?" The vengeance mindset cannot be shut on and off, and it holds far-reaching, negative consequences.
The DPIC site has much more, but that should do for now. (I'm guessing anyone who studied or debated the death penalty in high school or college is familiar with most of this stuff.) Again, you don't need to agree with every single element of it, but a serious death penalty advocate would address at least some of it.
Back to Douthat's piece at last. His last argument was that "gradually reforming the death penalty — imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well — might do more than outright abolition to address the larger problems with crime and punishment in America." He continues:
This point was made well last week by Pascal-Emmanuel Gobry, writing for The American Scene. In any penal system, he pointed out, but especially in our own — which can be brutal, overcrowded, rife with rape and other forms of violence — a lifelong prison sentence can prove more cruel and unusual than a speedy execution. And a society that supposedly values liberty as much or more than life itself hasn’t necessarily become more civilized if it preserves its convicts’ lives while consistently violating their rights and dignity. It’s just become better at self-deception about what’s really going on.
Again, who's engaging in deception (self or otherwise) here? As we've already established, this is a grotesque false choice, and the people fighting against capital punishment are also fighting for a more fair justice system and fewer prison abuses. The most charitable interpretation of Douthat here still leaves him loathsome and presenting a false choice: that Davis' death was tragic, but served to shine a spotlight on a worthy cause, prison abuse... therefore we need to keep executing people... or something. The end game is unclear here, if one actually wants to end both abuse and executions. It seems Douthat's sorta trying to make an argument in that territory in this column, painfully poor contrarian logic though it is. However, that doesn't excuse what's arguably Douthat's most offensive contention: Douthat is arguing that Troy Davis is better off dead than in prison, willfully ignoring that Davis was fighting for his life and did not want to be executed. Douthat, a social conservative, can often be paternalistic and authoritarian, but even for him, it's awfully despicable to essentially write that, regardless of what Troy Davis the actual human being wanted, killing him was really in his best interests.
(The reason I've mentioned torture earlier is that this stuff really does exist on a continuum – an arrogant, dehumanizing mindset is the sort of thing that also fuels unnecessary wars and torture. That doesn't mean Douthat necessarily supports every negative consequence of the positions and mindset he holds. However, if Douthat isn't going to bother to think things through, others must fill that yawning gap. And let's make no mistake, regardless of his other views, Douthat's mindset here is absolutely contemptible.)
Back to Douthat:
Fundamentally, most Americans who support the death penalty do so because they want to believe that our justice system is just, and not merely a mechanism for quarantining the dangerous in order to keep the law-abiding safe. The case for executing murderers is a case for proportionality in punishment: for sentences that fit the crime, and penalties that close the circle.
The "because" here is absolutely ridiculous; Douthat is reversing the process. Sure, Americans would like to believe our justice system is fair and accurate, but they don't support the death penalty because of that, and they certainly don't support the death penalty because they want to believe that, as Douthat contends. As we've noted before, and should be obvious, most Americans support the death penalty out a desire for vengeance, the old code of an eye for an eye, a life for a life. They believe some crimes deserve the death penalty and some people deserve to die. The more honorable among death penalty supporters would and are given pause by innocents being executed, because then justice is not being done, and a great injustice has been done. The more bloodthirsty don't really care. And they certainly exist. At the Republican primary debates, the audiences have cheered letting an uninsured man die and cheered Rick Perry's execution record . Perry probably executed an innocent man, Cameron Todd Willingham, but when told of that, one of Perry's constituents reportedly said "Well, I like that. Takes a lot of balls to execute an innocent man.” Perhaps this voter figured the man must have been guilty of something, or executing an innocent just fit his twisted notion of manhood and toughness. But that is a bloodthirsty attitude, hardly some thoughtful desire for justice. It's anti-justice: just get to killin', and let God sort them out.
Notice that once again Douthat is arguing for the death penalty in a sideways manner; this time, he argues that Americans want to believe in our justice system, and the death penalty is somehow necessary to sustain this belief. (Clap your hands if you believe in executions, kids! And then Troy Davis will come back to lif – oh, wait.)
Instead of dismissing this point of view as backward and barbaric, criminal justice reformers should try to harness it, by pointing out that too often our punishments don’t fit the crime — that sentences for many drug crimes are disproportionate to the offenses, for instance, or that rape and sexual assault have become an implicit part of many prison terms. Americans should be urged to support penal reform not in spite of their belief that some murderers deserve execution, in other words, but because of it — because both are attempts to ensure that accused criminals receive their just deserts.
This is darkly comical. As we've shown already, it's perfectly easy and actually natural to both support prison reform and oppose capital punishment, all as part of a commitment to being more humane. However, Douthat is arguing here that death penalty supporters oppose abusing prisoners. Some surely do. But many don't, particularly in the conservative base. For them, it's a bonus. On cop shows, made in supposedly liberal Hollywood, it's still pretty common for cops to threaten suspects, or joke with convicted bad guys, about getting raped in prison (someone's going to make you their bitch, etc.). Meanwhile, a desire for vengeance and to see other people in suffer (in their minds, justly) are defining impulses in the conservative base, driving the push to go to war with Iraq (and other nations), to torture, to deny health care to others, to beat up or kill protesters and critics, and influencing many other issues. There's no way in hell Douthat is completely unaware of what makes his fellow travelers tick. Here's a representative taste, and here's the statement from one of the more intellectual conservative bloggers:
I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there's a good explanation.
I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.
And, yes, I know this aligns me in this instance with the Iranian government — but even a stopped clock is right twice a day, and in this instance the Iranians are quite correct.
UPDATE: I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause. I'm not an expert on the history of the clause, but my point is that the punishment is proper because it's cruel (i.e., because it involves the deliberate infliction of pain as part of the punishment), so it may well be unconstitutional. I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.
Naturally, I don't expect this to happen any time soon; my point is about what should be the rule, not about what is the rule, or even what is the constitutionally permissible rule. I think the Bill of Rights is generally a great idea, but I don't think it's holy writ handed down from on high. Certain amendments to it may well be proper, though again I freely acknowledge that they'd be highly unlikely.
In any event, there's nothing unconstitutional about letting victims' relatives participate in the execution; it's only the use of cruel means that would require an amendment.
That was law professor and blogger Eugene Volokh in 2005. To be fair, he amended his positions somewhat later on, although apparently mainly on practical versus moral grounds. He's also more honest and articulate here than most in the pro-pain camp. But the disturbing thing is how much thought he put into this while still refusing to abandon his bloodthirsty position. He had time to think on it and update his post, but he still advocated cruelty. Predictably, he received attaboys from other conservative bloggers. As more sober observers pointed out, while the desire for vengeance among the family and friends of a victim is human and understandable, it's a very poor, destructive way to run a society and a justice system. Nor is this a new observation: Gandhi may have said that "an eye for an eye makes the whole world blind," but the basic idea goes back a couple of millennia.
Here's Douthat's big finale:
Abolishing capital punishment in a kind of despair over its fallibility would send a very different message. It would tell the public that our laws and courts and juries are fundamentally incapable of delivering what most Americans consider genuine justice. It could encourage a more cynical and utilitarian view of why police forces and prisons exist, and what moral standards we should hold them to. And while it would put an end to wrongful executions, it might well lead to more overall injustice.
This is nonsensical and essentially an authoritarian argument, recapping Douthat's previous arguments. Note once again that nowhere has Douthat actually argued that the death penalty is moral or addressed the many arguments against it. Inescapably, we must conclude: Whether or not innocent people are killed is of much lesser concern to Douthat than the public's faith in the justice system. In other words, he doesn't truly care about justice and injustice, only the rabble's belief in system's justice. Furthermore, Douthat believes (or at least claims) that executions are vital to maintaining that faith, although he never really provides evidence of this. In a neat little bit of scumbaggery, he presents this astoundingly cynical and (more importantly) cruel view as a fight against cynicism.
"And while it would put an end to wrongful executions, it might well lead to more overall injustice" is utter bullshit and the reeking turd atop his little contrarian confection. As if this is the choice we face, or that Douthat's soulless solution is the answer. His mindset is an extremely aristocratic, dehumanizing one. Take what Douthat actually writes and treat it seriously: he doesn't care if Troy Davis lives or dies. He doesn't care if a few innocents are accidentally executed. He doesn't care if the general populace has an accurate view of the justice system or not. Really, he's showing an incredible contempt for democracy, the justice system, and his fellow human beings here. This matters because Douthat holds a prestigious spot as a New York Times columnist, and holds extra responsibility in being one of the paper's resident conservatives, supposedly showing off to the readership the intellectual heft and integrity of his movement. Douthat characteristically crafts very poor arguments, but this may be his most immoral, disgraceful one to date. It deserves to be remembered, and hung around his neck like an albatross until its rotten stench awakes whatever conscience he possesses.
Those familiar with Douthat's work may notice a glaring omission from his pro-death penalty column: his Catholicism. Douthat was not born Catholic; he converted. This is notable only because becoming Catholic was his choice, and presumably some degree of thought and research went into it. Douthat often argues against abortion, gay marriage and other issues by citing his Catholicism directly or obliquely. He frequently appeals to, and begs tolerance for, socially conservative "values." Yet the Catholic Church is strongly and unequivocally against capital punishment. Douthat never bothers to acknowledge this, or say anything like, "I follow the Church on most issues, but disagree with it on this one, and here's why." As we noted continually throughout Douthat's column, he never directly argues about the morality or immorality of the death penalty; the most he does is claim that it is popular. Perhaps Douthat's contortions aren't just to avoid logic, but to avoid his own faith's teachings as well. His column doesn't just show abysmal logic – or despicable immorality – it betrays deep cowardice.
If you're not familiar with Douthat's work, and his penchant for poor arguments and whiny sanctimony, I'd recommend checking out the Douthat archives of TBogg and Susan of Texas. (I've addressed Douthat previously here, here, and in very brief passing here.)
If you didn’t check out the posts I linked earlier on this Douthat column, here's a little more information.
TBogg provides a very apt and scathing "shorter" Douthat. (Also check out the comments.)
Driftglass provides a great picture of "Young Master Douthat," pegs his aristocratic duping-the-masses angle, and compares him to a novice high school debater (plus, he lifts a great comment from the thread).
Susan of Texas examines Douthat's Catholicism and deep hypocrisy in detail, and notes that Douthat's argument for capital punishment parallels his argument about abortion (basically, we wouldn't have to fight if liberals would just capitulate).
Freddie deBoer examines the Catholic hypocrisy angle as well, but also forcefully calls Douthat to account for his inhumanity.
John Casey dissects some of the poor logic Douthat exhibits (read his comment in the thread, too).
Steve M. delves into Douthat's "mind-boggling" lucky ducky argument, and also notes that Douthat is essentially blaming the problem on liberals' refusal to capitulate.