The Death Penalty Is Barbaric, Let's Torture Instead! Capital Punishment and the Supermax Alternative

05/06/2015 03:12 pm ET | Updated May 05, 2016

Many Americans are conflicted about the death penalty. There are cases where criminal defendants appear to deserve death, for example, mass murderer and terrorist, Timothy McVeigh. The actions of these defendants are so outrageous that they call for the most extreme condemnation possible: complete and irreversible removal from the human community.

However, Americans are also repeatedly told that the death penalty is barbaric, inhumane, and racist. The pope is opposed to it. Likewise, so is almost all of Europe. Phil Zuckerman, the noted sociologist, even argues in his recent book, Living the Secular Life, that strong opposition to the death penalty among most nonreligious Americans is an indication that the nonreligious may be more moral than the religious, at least in some respects.

Well, we certainly don't want to be immoral, racist, or barbaric, do we?

But how to reconcile the sense that a defendant deserves the ultimate penalty with the increasing repugnance toward the death penalty? Enter supermax!

Supermax as salve for the hypocritical conscience

The attorneys for convicted terrorist Dzhohkar Tsarnaev made an argument the other day that has become all too common in capital cases. In their eagerness to persuade jurors to spare Tsarnaev's life, they emphasized how miserable Tsarnaev will be if he is sentenced to life imprisonment. That's because he'll be serving his time in the federal supermax facility in Colorado. Along with the other prisoners there, Tsarnaev will be kept in isolation. He will be spending 23 hours a day for the rest of his life in a roughly 90 ft.² cell, where he will eat, sleep, urinate, and defecate. For the one hour a day that he is let out of his cage for exercise, he will have no contact with other inmates.

Yeah, that'll teach him! Don't kill him; make him suffer alone for 50 years.

So we can punish murderous criminal defendants harshly without resorting to that barbaric death penalty. Problem solved. Just lock 'em away and forget 'em.

The death penalty taboo

Tsarnaev will suffer if he imprisoned in supermax. Studies have shown that prisoners in supermax facilities are more prone to develop mental illness because of the psychological deprivation and isolation they experience. This extreme isolation is a form of torture, as stressful, if not as immediately painful, as physical torture. Only someone who has lost their moral compass or someone who has developed a taboo mentality toward the death penalty could possibly regard supermax confinement as a humane alternative to the death penalty.

And much of the opposition to the death penalty is based on a taboo mentality. It is derived primarily from the notion that life is "sacred," ironically an attitude seemingly more prevalent among secular Americans than religious Americans. Do I exaggerate? Aren't there good arguments against the death penalty? There is one good argument, which I will get to below, but to demonstrate that opposition to the death penalty is mostly based on emotional repugnance, not sound arguments, consider some of the arguments that have been offered:

The state shouldn't be killing people. Who should then? Governments took over responsibility for criminal punishment as way to end private vengeance. If the death penalty is appropriate, it is precisely the state, not relatives of victims, that should impose the penalty.

The death penalty is racist. There is little doubt that much of the American justice system is affected by either explicit or implicit racial bias. This bias manifests at all levels, from disproportionate traffic stops and arrests of blacks to disproportionate death sentences for blacks. But ultimately, this argument against the death penalty is no more than a makeweight. Removing the death penalty is not going to end racism in the American justice system. Moreover, if the adverse impact on blacks were the real reason for opposing the death penalty, presumably opponents would be satisfied with a quota system, whereby no death penalty could be imposed on blacks, Hispanics, and so forth until the requisite number of whites were sentenced to death. A quota system would remove the effects of racial bias. I doubt, however, that this would satisfy death penalty opponents.

Capital cases are more costly. It is true the death penalty cases cost a lot-- but they cost a lot precisely because death penalty opponents wage decades-long court battles to prevent the imposition or the carrying out of a death sentence.

The death penalty is not a deterrent. The most objective, comprehensive study on this issue was carried out by the National Academy of Sciences. In its 2012 report, the NAS stated that no firm conclusion could be drawn about the effect of the death penalty on homicide rates, in part because of the limitations of such studies.

The death penalty is vengeful; it appeals to our darker emotions. This is simply arguing through characterization. One could respond by counter-argument that the death penalty expresses the just outrage of the moral community.

The death penalty is cruel. And supermax isn't?

The one good argument against the death penalty

Erroneous convictions. Because of its irreversibility, that's the real problem with the death penalty. We always knew that our criminal justice system was imperfect, but until the advent of DNA evidence, we did not realize how imperfect. We have now had dozens of death-row inmates exonerated. The best study on this issue estimates that about 4% of those sentenced to death have been wrongly convicted. That translates to several hundred persons wrongly sentenced to death.

This concern has no application to Tsarnaev, of course. He has effectively conceded his guilt. However, it is doubtful that we can devise a criminal justice system that reserves the death penalty only for those that we really, really know are guilty.

Being honest about the death penalty and the limits of criminal justice

Because of the unacceptably high possibility of an erroneous conviction, I am a reluctant opponent of the death penalty. Reluctant, because some murderers undoubtedly deserve to die. But for me at least, it is no consolation to be told these murderers will be locked away in isolation for decades. Except for the extremely rare Hannibal Lecters of the world, there's no possible rationale or justification for supermax facilities. They are vehicles for prolonged psychological torture.

If we can't utilize the death penalty because of the danger of wrongful convictions, we just have to accept that. But we're only deluding ourselves if we think somehow we are morally superior because we reject the death penalty in favor of supermax.