When Should We Kill Them?

Some cursory thoughts on the recent life sentence for Sayfullo Saipov

Life Sentence for ISIS Mass-Murderer

The ISIS-affiliated vehicular murderer (Sayfullo Saipov) – who killed 8 victims and injured dozens more in a 2017 attack on a New York City bike path – escaped the death penalty in his sentencing hearing yesterday and so will spend the rest of his life in a federal supermax prison (probably Florence ADX, In Colorado).

Mr. Saipov’s choices have relegated him to a very small world, which he will never leave while alive, bounded by the walls of this room and the nihilistic delusions of his religious worldview

Even if we assumed that everyone sentenced to death was guilty the penalty has serious ethical problems. That assumption is obviously untrue. It’s always shocking to me how many defendants are convicted of capital murder on the basis of a single eye witness. The ‘beyond a reasonable doubt’ standard seems clear enough but unfortunately juries create their own dynamics of status and conformity and unreason. Prejudice, emotion, and prosecutorial misconduct all too often affect the trials’ outcomes.  It’s understandable to fear or hate the crimes that are being tried but if you attach some of that emotion to the defendant you’re begging the question and committing a far more serious ethical error than most people ever have the opportunity to commit. How many trials become partly about dark musical tastes or alleged comments or mischaracterized affiliations rather than the facts of the crime? Prosecutors know that manipulating the jury’s emotions by tying defendants to hated or feared ideas or cultural products or groups (none of which even qualifies as evidence) is often successful. I’m thinking of the tragic and infamous ‘West Memphis Three’ trial and retrial years ago. Jurors, for their part, not only fail to use the most basic tools of rational ambivalence or analytical logic; they often double down after their verdict has been called into question. It’s quite common to find jurors who still maintain, with frankly enraging obliviousness, that some defendant ‘definitely’ committed a horrible crime, because the juror had a bad feeling about it or because they are apparently inspired by some other sub-rational, intuitive nonsense. This after the defendants have been vindicated or exonerated (legally or factually). It’s almost enough to make one lose enthusiasm for the entire project of human civilization and pray for extinction.

If you’re bored (and emotionally stable) I recommend looking into the details of murder convictions overturned by DNA evidence, or the Innocence Project, or through post-conviction appeals. Look at the shockingly bare evidence that initially condemned those people and take a moment to reflect upon the massive flaws in human psychology and the criminal justice system. Consider all the people convicted on similarly shoddy grounds whose DNA samples were lost or never taken or who were never heard from again. How many people has our system put in its dungeons because of evidence that is plainly inadequate? Thousands? Tens of thousands? Hundreds? Perhaps it’s best to do this exercise in small doses.

Justice, Torture, and Reform

So the death penalty is a very dubious instrument for the execution (no pun intended) of justice. There is an ideal that too often gets lost in our debates about punitive versus rehabilitory criminal sentences: the perfect goal of criminal reform should be the criminal voluntarily facing what they’ve done, coming to realize and regret its effects, and sincerely trying to atone for their sins with the remainder of their life. Returning to the workforce is obviously useful it but doesn’t constitute the kind of personal moral accountability that the term really references.

(Incidentally, this is why a focus on racism or poverty or trauma can be good and helpful for policy-makers fashioning rules and programs and considering people in the aggregate but can’t be a part of an individual’s reformation. We all have reasons to hurt others but the hurt is never justified as such and any effort toward self-improvement must begin with an attitude of radical personal responsibility.)

In George Orwell’s novel 1984, protagonist Winston Smith is inevitably caught by his totalitarian government and taken to the subterranean maze of torment under the Ministry of Love (the central police agency). He is endlessly tortured, physically and psychologically. His revolutionary mentor, O’Brien, is revealed to not only not be a fellow dissident but to be a senior member of the regime’s intelligence apparatus. It is he who first revealed to Smith the true natures of oligarchical collectivism, with its scapegoats and inculcation of fear and distrust and artificial scarcity. 1984 has given us perhaps more cliches and popular terms than any other of its length and this is not surprising. The novel is full of prophetic warnings and deep insights into modern society. It is in this part of the novel that the concept of doublethink is brutally illustrated and the importance of control of the narratives of history and meaning are emphasized (“'Who controls the past… controls the future: who controls the present controls the past.” O’Brien is torturing Smith physically but patiently and sometimes almost lovingly. He’s trying to teach him and correct his thinking. It would be absurdly easy for the state to simply kill Smith and erase all traces of his existence but totalitarianism is obsessed with the idea of complete control of the individual and they don’t want Smith dead. They want him alive and broken and in thrall. They want him, like every other citizen, to be harmless and completely obedient, even in his innermost mind.

Eventually (when O’Brien feels he’s ready – after Smith has been overcome with horror after seeing the toothless, despairing, skeleton of his reflection) Smith is brought to the dreaded Room 101. The regime knows that he has a terrible fear of rats. Virtually every room of every building in this society has a screen to monitor everyone at all times, after all. They affix a cage to his head with a levered door. Smith, overcome by mindless fear, cries out and begs that the hungry rat be loosed upon his lover and co-conspirator, Julia, instead. He leaves the room physically unharmed but broken, severed from the only semblance of love he has ever experienced and awash in the certainty of his own cowardice. When people feel small and hopeless and spiritually bereft their need for authority and control increases. There’s a lesson here for observers of the contemporary American political and cultural landscape. The final, heart-breaking lines of the book read “He gazed up at the enormous face [of the mythical personality heading the party, ‘Big Brother’]. Forty years it had taken him to learn what kind of smile was hidden beneath the dark moustache. O cruel, needless misunderstanding! O stubborn, self-willed exile from the loving breast! Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother." (emphasis mine)

Rehabilitation versus Destruction

Every rehabilitation of a criminal must break parts of the criminal’s psychology. Ideally those will all be maladaptive parts (sadism, anti-social tendencies, aggression, lack of empathy, etc.) but they must be extirpated in order to be replaced by more pro-social lines of code. We can use the language of healing but the process feels painful and obliterative in the moment and if it doesn’t feel that way it’s not happening. It is also necessary for any kind of personal progress. These should be the goals of our system in regards to people convicted of violent crimes:

1. they will never hurt anyone again   

2. they will come to understand and regret their crimes, and therefore become different people.

I think this ideal can apply to nearly anyone. Some psychological abnormalities may create exceptions but perhaps that’s only due to our ignorance about applied neurology. However, rehabilitation is not the only goal. First society must be reasonably protected from the unrehabilitated, and in this I think the death penalty may sometimes be warranted. Serial sexual predators of juveniles show no evidence of being able to amend their impulses, for instance. They might be changed in that they may never offend again (although even there the data is not encouraging) but they will always have a lust for children. This too may one day be overcome by advances in knowledge about the human mind/brain interaction but we haven’t even begun to walk down that long path Their lust is often obsessive and all-consuming, distorting their personalities and interests and career choices. It’s also accompanied by psychological delusions of justification in which victims are forever believed to have wanted or deserved or benefitted from their treatment. I don’t think any treatment has been shown that rectifies such psychic errors, even marginally. For such men (they are nearly all men) the death penalty should be considered. Sometimes society risks too much - even with imprisonment - and gains too little by leaving offenders alive. If they are incapable of ever feeling that deep remorse that comes with time and wisdom it may be better that they are annihilated altogether. Mass murderers, on the other hand, do have the natural human capacity for reflection and change. Many more ‘ordinary’ murderers meanwhile are morally sound, bearing an eternal weight for impulsivity or miscalculation or greed or substance abuse. Those offenders who are ideologically driven (the purest kind of intent) are harder cases to address but not impossible. Ideas are always mutable. If there is even a distant hope of achieving healing remorse and no appreciable risk of further harm, I do not think a prisoner should ever be killed.

Again though, the most important priority in sentencing must be the protection of society from the unrehabilitated. This includes other prisoners and prison guards. Mr. Saipov has been open about his desire to kill guards (decapitate them, actually, which is a common and gruesome urge for many of those who feel called by the Quran to wage asymmetrical warfare against the West). Weighing his ideological convictions (which haven’t changed or apparently waned in his years of incarceration) and the correspondingly low opportunity for true reform, the very real risk of him trying to visit further harm upon the our society (even in his narrow and inescapable penal setting), and the nature of his crimes (and the certainty of his guilt) I believe that we would have been correct in killing him.

An enthusiastic and absolutist embrace of capital punishment raises serious ethical concerns. An absolutist rejection of capital punishment is fundamentally immature. There will always be men so committed to destruction that their continued existence is an unacceptable social risk. This risk will follow them everywhere, unless they’re perhaps amputated, drugged, and restrained. If your abhorrence of legal violence is so deep and reflexive that these neuterings seem like a good alternative I suggest that you are motivated less by wisdom and compassion and more by the childish revulsion at the idea of sharing any collective responsibility for violence. If you live in modern society you suborn and sanction and endlessly benefit from violence. If you don’t like or accept that go find an island somewhere and tend to your garden or just continue as you are willfully blind to the realities of our social contract. Either way, I suggest that you withhold any opinions on criminal justice. All incarcerations, fines, and court conditions are forms of instrumental violence, if not its use then certainly its threat. There will always be a small fragment of truly dangerous humans, for whom the chance of redemption is more than outweighed by the risk of further harm. Such men should be destroyed.