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Review of The Death of Punishment by Robert Blecker

The publishers of The Death of Punishment have asked us to review this new book by Professor Robert Blecker. A professor of law at New York Law School, Blecker is a leading media commentator and pro death penalty activist. In his new book, he argues that the legal system is under a moral duty to execute criminals he describes as the “worst of the worst”. The book can be purchased from Amazon.

We have two reviews The Death of Punishment: Why the criminal justice system can't be trusted with life and death by Will Tolcher and Death as Punishment or Is Punishment Dead? by Alex Helling

Will Tolcher is a law graduate; he writes on issues of international justice, human rights, freedom of speech and more across idebate.org and tweets at @WillTolcher.

Alex Helling is the Editor of the Debatabase; he is a graduate in history and international relations and as the content officer for idebate.org writes about a wide range of issues.

 

The Death of Punishment is a book that’s always going to be a hard sell. Opening on a philosophical tone, in the opening four staccato chapters, a style generally maintained throughout the book, Professor Robert Blecker argues that capital punishment is a moral imperative, as are extremely punitive prison regimes.

Much of the book is focused on Professor Blecker’s visits to various prisons across the USA, and his conversations with inmates there, punctuated with Daily Mail-esque concerns about “soft prisons”. This is despite 200,000 sex abuse cases per year in American prisons[1], and Florida priding itself on prisons not being air conditioned despite the 38 degree heat[2]. Medical care is often flawed, with cases reporting of patients being told to pray instead[3].

Much of his research was in the Lorton prison in Virginia, containing inmates in for various gang related offences, many of which murder, in DC, which does not use the death penalty, including David “Itchy” Brooks. Brooks was sentenced to twenty years to life for a murder, who found himself not only running the prison law library but the boxing too, his reflections on prison life painting a portrait of flaws of the American penal system. Blecker also speaks of witnessing the execution by lethal injection of Bennie Demps in Florida for the murder of a prison informer. This eerie account of the banality of the process is a disturbing read of what Professor Blecker accurately describes as a medicalized execution – a procedure which is not without its critics, especially in terms of the wildly varying drugs protocols following the export restrictions[4]. That said, other methods of execution are aesthetically modified – for example, the use of various measures such as masks, gags and screens to sanitize the process of roasting someone to death in the electric chair[5].

Professor Blecker’s retribution based philosophy of criminal justice is certainly not one which is within the mainstream of academic criminology and penology, in the UK at least.  He argues for the death penalty for retributive reasons, not practical ones – he supports the death penalty not for the reason that he believes it is sensible policy, but because he believes it is a moral imperative for the state to kill certain people in cold blood based on a “covenant with the past”. He hasn’t made a compelling philosophical case for it, however. A book aimed at a scholarly audience arguing for the death penalty is always going to be a hard sell – but that he supports punishment that he accepts has no utility without unpacking his theory is not going to bring people over to supporting him, and ends up often more resembling bloodlust than anything else.

His use of mantra “the past counts” and discussions of victims seem to perhaps confuse the purpose of criminal law. Criminal law is not about victims, vengeance or retribution – it is about the fundamentally social question of the guilt or innocence of a person, and if they have committed such a crime, the appropriate sentence for the purposes of incapacitation and possibly deterrence. Victims of crime, and the families of murder victims do matter – but the place for that is not in the thinking and operation of the criminal courts. On the subject of opinion polling, Professor Blecker opposes more neutral questions – asking about the issue in the abstract, as the law operates – and suggests using a full range of vivid terminology.

In a section that will be handy for debaters in the future (the death penalty being perhaps the most used, or even overused, training debate), Professor Blecker attempts to counteract the common anti death penalty arguments, both morality and policy. His argument that the death penalty is not hypocritical disregards the special nature of death, coupled with the fact that the state has to operate off the moral high ground, rather than sinking to the levels of those whom society despises. Also, he makes a false moral equivalence between the death penalty and abortion[6]. How Professor Blecker considers that public[7] executions by firing squad advance human dignity, either for the person being shot or the victim, is unclear.

While willing to accept a “miniscule” risk of the state killing an innocent person in cold blood, the risks involved are far from miniscule, even in modern cases – 143 people on death row have been exonerated since 1973[8], partially due to systems of elected prosecutors with perverse incentives and a belief system that guilt is determined by police, not the courts[9].

Blecker proposes a death penalty statute in an appendix at the end, which would mandate a majority of the jury finding guilt to a “No doubt” standard of proof, and a quite unclear test of “moral certainty” that a person deserves death before they are sentenced to a public execution by firing squad. While a “no doubt” standard of proof sounds like a good measure in theory, defence counsel would be mandated to argue to the jury that they were wrong. According to a study in Michigan, only a third of jurors correctly understand that the burden of proof is on the prosecution[10]. His “moral certainty” test is highly vague and would depend very much on the jury system. While the model statute does not elucidate if “death qualified juries” should be used, Professor Blecker supports them and to this end objects to unanimity requirement for penalty phases. However, death qualified juries lead to similar effects as excluding jurors on race[11], and are more likely to convict than normal juries[12]. His proposal to allow the wishes of the deceased to be factored in forgets that sentencing is a matter of social risk and public law rather than personal revenge.

While the existing procedures for capital appeals do increase the death penalty’s cost, this does not mean that the existing system is favourable to defendants in the first place – it puts up many hurdles to those whose convictions are clearly wrong, such as that of Kris Maharaj (while his death sentence was overturned, he is still serving life imprisonment in Florida for a crime he did not commit[13]). Concepts such as the “Procedural bar” cause those with ineffective counsel at early stages to have further problems appealing convictions and sentence. Arguing that corners can be cut in the criminal justice system is a dangerous step in that it is a sure-fire route to wrongful convictions, and in capital cases, executions.  Blecker claims that the appeals system, coupled with death penalty opponents and armies of world class lawyers acting pro bono, make the system more expensive. However, capital representation at trial level is often terrible, and those who are defended competently by counsel are far less likely to receive death sentences than those who are not[14]. This is no surprise – in several states, it took legal action for capital defence counsel to receive the American federal minimum wage[15].

Statistical evidence on deterrence is difficult to provide, either way – short of performing randomised controlled executions. However, when Canada abolished the death penalty nationally in 1976, the homicide rate fell from 3.09 in 1975 to 2.31 in 1980[16]. While there are a multitude of factors (indeed, all attempts at statistically calculating deterrence are likely to be subject to various biases[17]), it is death penalty supporters who are making the assertion that their policy is a deterrent: it is up to them to provide statistical evidence for their position. Philosopher Agnes Heller has argued[18] that the death penalty cannot be a deterrent as murders will typically fit in to one of three categories – crimes of profit (for pecuniary gain, where the criminal considers that they won’t get caught, therefore sentencing will not act as a deterrent), crimes of passion (where there is no thought given to the consequences), and crimes of compulsion, where an individual is just so warped (through mental illness or otherwise) that they cannot be deterred.

Professor Blecker is not, however, an ardent supporter of the current US legal system. Indeed, he expresses doubts about whether Daryl Holton, who was convicted of murdering his three children and their half-sister in 1997 and was executed by electric chair in 2007 should have been executed. Professor Blecker’s meetings with Holton are the subject of the film Robert Blecker Wants Me Dead. Sensibly, he proposes ending the relic of the felony murder rule, which renders all those involved in a felony liable for murder if a person dies as a result, which was abolished in England and Wales in 1957 (albeit with a similar and equally controversial doctrine, joint enterprise, continuing) but continues in the US – in 2004, someone was convicted of first degree murder with a whole life sentence for lending a friend a car[19]. Professor Blecker argues that a key part of the racially discriminatory practice of capital punishment in the US is due to the felony murder rule. He argues for a restriction of the death penalty to the “worst of the worst”. Even if Professor Blecker advocates restrictions, he is still supporting capital punishment – the question is if capital punishment is acceptable or not, rather than just its scope.

Later in the book, Professor Blecker discusses a visit to Germany, speaking with German academics and students. Germany was always going to have a tough sell for Germany, Professor Blecker having mentioned that he “sworn never to set foot on German soil”, holding Germans collectively responsible, even today, for the acts nearly seventy years ago. His key talking point in Europe  is the case of Magnus Gäfgen, a suspect (at the time: he was later convicted) in a case of child abduction who, after picking up a ransom, was threatened with torture by the German police and allegedly subjected to beatings and threats of sexual abuse.[20] While the torture-extracted confession was not used, the fruit of the poison tree (information following the torture – the location of the body) was.

Professor Blecker takes umbrage at the fact that the police officers who made threats of torture to a suspect were subject to criminal prosecution. While he is not the only person to advocate the use of torture (Alan Dershowitz proposed a system of state sanctioned torture in the mythical “ticking time bomb” scenario, not found anywhere outside episodes of 24 and Spooks), it appears that Professor Blecker doesn’t grasp why torture, and the use of torture evidence is unacceptable – even for someone as repugnant as Gäfgen. Evidence gained under torture is extremely unreliable. It corrodes the legal system by its use[21], and its use creates further incentive for further torture. The rights to not be subjected to torture and the right to a fair trial is one of few rights protected by the European Convention on Human Rights that is absolute and non-derogable. The prohibition of torture evidence is crucial – not just for human rights, but the integrity of the legal system.

Professor Blecker also opposes the conditions in German prisons. He considers the German system, with a strong focus on rehabilitation, as failing to his punitive mission. One of his key issues is the lack of the life without parole sentence in Germany[22]. While there are some people who should will never be safe for release (the Levi Bellfields of this world), a whole life tariff achieves nothing that any other life sentence would do according to English and Welsh law.

Moreover Blecker makes a few factual errors in discussing European legal history. While not called that, Norway does have de facto life imprisonment with the system of preventative detention. Similarly, Germany was not the first country in Europe to abolish capital punishment when it did so in 1949 – San Marino, and Iceland (plus Sweden and The Netherlands if you exclude military cases) abolished capital punishment at least twenty years prior, Switzerland did so for civilian matters in 1942. Similarly, while Norway does not have life sentences (indeterminate or whole life), it is possible to keep individuals who are a danger to society locked up for life using “containment” type sentences, such as that received by Anders Breivik, who is unlikely to be released (for that matter it is unlikely that he will be moved to the Bastøy prison, with substantially lower reoffending rates, which Professor Blecker derides).

He also conflates German policy with that of Europe as a whole. UK politicians, while not supporting the death penalty necessarily, are more likely to agree with Professor Blecker than he thinks (the reintroduction of capital punishment being subject to a private members bill, which is highly unlikely to pass, in 2014[23] - not the first unlikely attempt at such a restoration in the UK). His comments about widespread European popular support for the death penalty may be wide of the mark, too: the last time there was a referendum on such an issue anywhere in Europe, Ireland voted to eliminate the death penalty in all circumstances in 2001 by a very comfortable margin. In the UK, an epetition for a Parliamentary debate on the issue on the official website gained only little over a quarter of the 100,000 signatures required[24].

The Death of Punishment doesn’t deal with many of the other issues. Whole life tariffs (or, in American parlance, Life without parole - LWOP), when desired for murder, are devalued in the US due to their overuse. In the US, over 3,000 people are serving whole life tariffs for nonviolent crimes, including the theft of a packed lunch[25] - compared to 49 in England and Wales, all for murder[26]. While nowhere near it’s early 90s crack boom peak in terms of scale (for possible reasons including anything from unleaded petrol[27] to abortion), violent crime in America is a serious problem, particularly in inner cities, typically the background of those in Lorton. America now has a prison population larger than Stalin’s Gulag archipelago[28]. Racial discrimination and disparity abound in both society and the criminal justice system – 28% of African-American men are sent to prison in their life, compared to 4% of white men[29]. The growth of private prisons in the US has played a role in fuelling a prison-industrial complex. I have no reason to doubt Professor Blecker’s sincerity regarding his concern for victims of crime – however the solution to such issues has to involve broad socio-economic issues to prevent people becoming victims, rather than exclusively focusing on sentencing.

Overall, The Death of Punishment is an interesting read in parts, taking a look at the darker side of the human mind in his tales of visits to the American prison system and those on both death row and serving life sentences. It’s the most eloquent piece of advocacy I have seen for the death penalty – perhaps, almost a manifesto for the idea. However, it appears to almost be a case of preaching to the converted – a case for why retributivists should support the death penalty, but lacking in providing any justification for retributivism. And with that, it is impossible to extricate the death penalty from revenge.[30]

-          Will Tolcher

Death as Punishment or Is Punishment Dead?

I am reading the wrong book! So it hit me about three quarters of the way into Robert Blecker's The Death Of Punishment. I had been told this book was about capital punishment, about Death as Punishment, and I was duly reading it as such. But in truth this book is as much about punishment as the death penalty. The book might be said to have two central arguments; that the death penalty should be available, and that the worst of the worst should be treated differently from other prisoners - punishment should fit the crime.

Unfortunately the arguments in the book are somewhat muddied by it being autobiographical in nature. As a result we don't get a solid logical argument that knocks down all alternatives as we advance through the book. Instead the argument comes through Blecker's life, experiences, and conversations with prisoners, which while relevant to punishment and the death penalty means it can be difficult to find lines of argument that are set out, justified and evaluated. 

The first few chapters are about Blecker's formative experiences, his time in law school, as a special prosecutor and starting out as an academic. This also gives some of his, only partially successful, searching for a philosophical basis for his views. By chapter five we have reached the main part of the book that revolves around Blecker's discussions with criminals, his attempts to get into their mind, find out their motivations, and encourage remorse. He spends four chapters (11-14) on the execution of Bennie Demps, and then the best part of thirteen (16-29) on the case of Daryl Holton, who killed his four children and himself wished for the electric chair. After Holton we are through most of the book but seem to finally be getting more into the arguments rather than individual cases. Blecker outlines his views as a result of involvements with commissions on abolishing the death penalty in Illinois, New Jersey, and Connecticut. The final five (34-38) deal with justice in Germany. For someone attempting to tease out the argument this way of setting out the book may be frustrating but it does make this a much more accessible book than an academic treatise. The book is extremely well written, it has flair so I found myself rushing through the book despite the subject matter, getting inside prisons and the heads of convicted murderers being often disturbing, and crime and punishment being a topic that I generally avoid.

So what about the arguments themselves? The first line of argument that arguing why there should be a death penalty I find unconvincing. His basic argument is simply that some people deserve it. "We inflict pain - suffering, discomfort - to the degree they deserve to feel it."(p.28) the worst of the worst deserve a painful, but quick, death.(p.179)

I have two problems with this. First Blecker never really sorts out who counts as 'worst of the worst' so deserving such justice. It is on an I'll know it when I see it basis, indeed he is glad it will never be able to have a computer decide who counts.(p.13) This leads to questions as to who should be considered the worst of the worst. He thinks that the death penalty is sometimes used too freely in the current US system but he calls for much worse punishment for corporates like Bernie Madoff (p.211) and though he does not mention the death penalty in this instance it is mentioned in relation to where corporate neglect has caused death.(p.60)

The second is that I find that his explanation of why it has to be death for these people rather than some other punishment makes me uneasy. Cleansing. Blecker writes of being denied the "cleansing that would come from knowing that Charles Manson had, at last, been put to death."(p.15) Blecker himself says of another two horrific crimes "Those were my children, my wife that Coker raped and murdered, my sister Speck killed".(p.30) Of course they were not. Of this desire for retribution Blecker says "Not rationally, but really. The past counts."(p.29) But if it is not rational how is it a good basis for punishment? The state has to be rational if it is to achieve justice and be fair. No one wants an irrational justice system. While some may feel a need for cleansing of the pollution that having these worst of the worst alive creates what of everyone else who does not feel so strongly - they might actually agree with killing this monster but do they actually need it? Surely for most all they need is to know those they love are safe, something that can be achieved by other forms of punishment.

The second strand of the book about making punishment fit the crime works better. We get lots of interesting detail about conditions in US prisons and this makes the argument more convincing. Most people will agree that punishment should fit the crime, and also agree to some extent with Blecker's mantra that "The past counts".(p.238) Although not generally in agreement that prison should be all about punishment I found myself sharing Blecker’s outrage that the best conditions often go to the worst criminals; those in for life or on death row. If you view prison as rehabilitation or to keep criminals off the streets then should not conditions be exactly equal, and if retributivist then worse conditions for worse crimes makes sense.

Even Blecker agrees that making punishment fit the crime need not mean the death penalty simply that "A person who rapes and murders a child should by statute be perpetually confined in the most punitive setting allowed by law".(p.205) He even sets out how this would work using “A special prison with permanent punitive segregation [PPS]”. This would be reserved for the worst of the worst “No “three strikes and you are PPS”” and would mean “Beyond a permanent loss of liberty, life should be painful and unpleasant, every day.” Unpleasant most would agree to, I am less sure about it being actually painful. Fortunately Blecker says “We should of course tolerate no abuse of these prisoners, no beatings or sadism from officers. But no conviviality either.”(p.210) One problem is Blecker’s insistence that prison should only be about punishment. He disparages the European systems that attempt at resocialisation pointing out that in the US rehabilitation does not work.(p.248) However there seems little reason why some form or resocialisation – teaching useful skills for life outside – can’t be combined with less comfortable prison settings. The aim of prison can’t just be punishment all the time, for the vast majority of prisoners it also needs to think about what comes next. 

Unfortunately the autobiographical way the book is written in part undermines Blecker's own arguments. Can he really consider it helping his own ideas to mention "Imprisonment, as the 1934 policing statement put it, should be "something nasty that makes them hurt"."(p.246) This is from Nazi Germany, helpful, really? There are also other views that Blecker mentions that might, although they are not connected with his proposed system, make readers think twice about taking Blecker as a guide for a criminal justice system. "I can't possibly argue for vigilantism. But as a human being, I do confess. God forbid this [someone raping and killing] happened to my family, if I had the opportunity, I hope I'd have the guts to kill him myself. And take whatever came behind it." (p.229) Blecker is not talking about self-defence at the time of the murder but of premeditated murder in court! On the case of Magnus Gäfgen who kidnapped and murdered an 11 year old Blecker agrees that the German police were right to threaten Gäfgen with torture to try to find his victim's whereabouts when it was not yet known he was dead. In reaction to the European Court of Human Rights ruling this was wrong Blecker exclaims "The police acted improperly although motivated to save a child's life. They would have acted wrongly to threaten torture in order to save 10,000 lives!"(p.241) So completely ignoring the other problems with torture such as inaccurate information, and in fact in this case the child was already dead so torture could not save his life.

Putting such sideshows aside, should you buy this book? If you are looking for a book on the arguments for and against capital punishment, even just for those for then this is not the book for you. I think it unlikely that this will persuade anyone with strongly held convictions against capital punishment, but for those who are on the fence it is a worthwhile read. You might find that like me if you did not have strongly held convictions against the death penalty before you are simply reinforced in the belief that there is not really a good argument for it if a prominent professor can't find one beyond the ancient eye for an eye. However if you are looking for an interesting and readable book on the US prison system, or lots of examples of horrific crime in the US and questioning some convicted killers on their motivations then this will be of use. Also useful is the appendix on short rebuttals of abolitionists arguments, and useful for the reader is appendix B ‘A Model Death Penalty Statute’ which I really think should be read first rather than tacked on at the end as it will give a good sense of where the book is heading and trying to argue for.

In sum a good read if interested in crime and punishment but not necessarily a convincing argument.

-          Alex Helling


[5] See Stafford Smith, Clive, Injustice: Life and Death in the Courtrooms of America, Vintage, 2013, chapter two

[7] See Appendix B (Model Death Penalty (Permanent Punitive Segregation) Statute), “Execution Protocol”

[9] See Medwed, Daniel S, “The Zeal Deal: Prosecutorial resistance to post-conviction claims of innocence”, Boston University Law Review, 2004, http://iris.lib.neu.edu/cgi/viewcontent.cgi?article=1164&context=slaw_fa...

[10] Reifman, Alan, Gusick, Spencer and Ellsworth, Phoebe, “Real jurors’ understanding of the law in real cases”, Law and Human Behavior, 1992, http://deepblue.lib.umich.edu/bitstream/handle/2027.42/45310/10979_2005_...

[11] Salgado, Richard (2005). "Tribunals Organized To Convict: Searching for a Lesser Evil in the Capital Juror Death-Qualification Process in United States v. Green". Brigham Young University Law Review

[12] Samuel Gross (1996), The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases, 44 Buffalo L. Rev. 469, 494

[13] See Stafford Smith

[14] Bright, Stephen, “Counsel for the poor: the death penalty not for the worst crime but for the worst lawyer”, Yale Law Journal, 1994, http://www.schr.org/files/resources/counsel3.pdf

[15] Stafford Smith, Chapter 9.

[26] Ibid (ACLU report)

 

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