Anders Behring Breivik has complicated matters for us. Most killers like him are not brought to justice; they kill themselves or are killed in the fracas following their murders. They do not create the opportunities that Breivik has created for us to think about appropriate punishments for those accused of heinous crimes. Breivik is now on the stand, equipped with a megaphone with which to articulate his homicidal world view. And one prominent reaction–at least in the US–to the cold-blooded pronouncements of this racist mass-killer is, ‘If anyone deserves the chair (or the injection or whatever) it’s this guy’.
But I think Breivik provides us with a very good argument against the death penalty. (Norway does not have the death penalty; it is unclear at this point what the maximum sentence for Brevik could be.)
Breivik committed his murders in the service of an ideology: quite simply, he was killing on the basis of principle. These principles had as their consequence the conclusion that some people deserved to die, that their actions–or intellectual subscriptions–made them unworthy of living. The death penalty functions in much the same way: We take retribution, we seek to deter, we ensure the killer does not kill again. No matter what the motivation, the killer has died for his actions. And in order to make this happen, a massive, often opaque, expensive, and cumbersome machinery of policing and law swings into action; the state deploys its considerable energies and monies to make this come about. But in doing so, the state and its criminal justice resembles nothing quite as much as it does the killers that it puts to death. For in so acting, the state has acted to instantiate some ideology or the other: perhaps that of retribution, perhaps that of a theory of deterrence growing out our criminological theorizing. The death penalty is these ideologies put into effect and brought to bear on some human being.
The law makes distinctions in its reckonings of homicide by distinguishing the premeditated murder from the crime of passion, by distinguishing conspiracy from second-degree murder. It is the deliberateness of the killing that makes the conspiratorial or premeditated murder more punishment-worthy. In carrying out the death penalty, the state and its people engage in an act of pre-meditated killing, carried out for a purpose, to make a point. We can dress it up in retribution or deterrence but it remains premeditated killing. (Declarations of war lead to mass murders too.)
So send Breivik to jail; lock him up; prevent him from impinging on the freedoms of others; don’t let him interrupt the lives of others, or disrupt the projects that people have made for themselves; study him in a pyschiatric ward if needed in order to understand how this mind works; but stay away from the business of ‘putting to death’. The moment that step is taken, the state and Breivik land up in the same docket: they are both guilty of taking deadly action on behalf of an argument, of killing for the sake of principle.
Samir Chopra 
I believe that the death penalty doesn’t make sense as an institution and don’t think that we should empower the state to have that sort of control over its citizens. I’m against it, and I’m not so happy with the whole raining death from the sky aspects of our military industrial complex.
But I have had an experience where I’ve interacted with someone who made me feel not only that he deserved to be destroyed, but that I was a moral failure for being a coward and not acting upon that. What was surprising about this experience was how banal the whole thing was.
I’ve been in a terrorist attack (not counting 9/11) where I was close enough to look into the guys eyes and they went on their shooting spree. (This at the rome airport in 85 or 86.) My impression of them was more that they were acting out on the frustration that systemic pressures put on them. Their actions had crossed well past the line of civilized behavior, of course, and yet if you looked at their background and their experience on some level you could understand what motivated them to behave that way. They shouldn’t have, and it was wrong, a childish temper-tantrum with artillery, but it was also understandable and relatable.
My experience with evil though was not nearly as explosive. I was interviewing a candidate for a software engineering. I actually am hard pressed to what is was that was that made me feel he was such an Abomination, the person that interviewed him before immediately left the building as soon as he got out of there. (And he was an abusive jerk, not really a sensitive guy.) I’m talking with him about emulating CPUs and virtual machines, or whatever technical stuff it was, and I couldn’t shake the feeling that I was sitting in front of a remorseless predator in the shape of a human being, like looking into the eyes of a raptor. Cold intelligence (he definitely knew his shit) but without any common humanity. This wasn’t someone who was shaped by their environment or who was misunderstood, this was someone who had fundamentally different wiring and their mere existence was a threat to the herd. He should have been put down for the good of humanity, and yet there was still nothing that he did that was transgressive.
It’s not my place to pass these judgements, not really sure if it’s anyones place, but there’s a sense of letting my fellow people down by not acting on the impulse to destroy this person. It’s not retribution nor even a matter of breaking the law, it’s a impulse that there needs to be some level of common humanity between everyone for us to live together, and that on some level this person wasn’t really Human. He was too Different.
He didn’t get the job.
I have to say, I don’t think I would ever trust my own powers of “peering into another’s soul” enough to feel comfortable making such a judgment. Given that the guy didn’t actually *do* anything, I don’t see how you could possibly know that he “wasn’t really human” or even have a basis for *believing* that.
In fact, reading your venomous feelings about this guy made me more nervous than reflecting upon the guy himself. Perhaps a gentle “heal thyself” is in order.
–DK
Will,
Thanks for the comment. Wow – that is a really intense recollection, and I’m at a loss of how to respond in this comment space, at this moment. I think I will write a post on this later. This part of your post “it’s a impulse that there needs to be some level of common humanity between everyone for us to live together, and that on some level this person wasn’t really Human. He was too Different.” is what needs responding to, and with your permission, I will take some time to think and respond. I’m glad you’ve noted the ‘banality’ of the experience and the sense that something that should have been shared was missing. And I thank you again for digging through your memories to share. I hope you’ll come back to the blog again, and write more.
More on this very soon, I promise you.
Samir
I am virulently anti-death penalty. That being said I think that Breivik illustrates the most cogent argument I have heard in favor of the death penalty. Namely, that some people are beyond retribution. On some level or another any moratorium campaigner is anti-capital punishment because they want to believe in the sacredness of human life. Part of this is the assumption of one’s ability to redeem oneself. But what about a case of a clear, absolute sociopath such as Breivik? He undoubtedly will never be able to re-enter society. The safe alternative is a life time of incarceration; but isn’t that cruel and unusual punishment?
Noah,
Thanks for the comment. I’m traveling now so will have to take this on later. Like Will’s comment this deserves a post on its own – thanks so much for writing this.
I don’t see how the fact that a particular convict cannot be redeemed makes any better of a case for the death penalty than any other of the many cases that have been made.
The death penalty is unacceptable for one simple reason: it is an irreversible punishment. Given the inherent fallibility of human institutions, states should never issue punishments that cannot be taken back later, if it turns out that a mistake was made. The death penalty is such a punishment and for that reason alone, is indefensible, regardless of whatever other case someone would like to make on its behalf.
That this is still a topic of discussion speaks very poorly of us as a people, both morally and as a matter of basic logic.
–DK
Samir, I don’t my argument even has the weakness you suggest. No, jail time served cannot be re-acquired, but it can be compensated, financially. A person who has been wrongly incarcerated should be able to sue for lost income, as well as for physical and psychological damages.
Death is not only irreversible: it cannot be compensated for–at least not to the person who suffered it.
–DK
Dan, that is true. I’m just noting that the time component can’t be reversed – but yes, at least it can be compensated for in some ways even if the clock can’t be rolled back.
Any legal framework that prohibits an individual take his own life, let alone that of others, surely cannot bestow upon itself the very same right. I am with Schopenhauer on the topic of suicide but thats a discussion for another blogpost (which you will hopefully write on).
I can only attempt to be vicarious, but worst case scenario even if vengeance is the criteria for the death penalty, why would any victim or those associated with a victim want death for the guilty. Isnt prolonged torture on top of the priority list? Dying’s easy. Living’s hard. Living in pain-harder
But i do start to feel an uncomfortable sense of ambivalence when coming across instances like the one in Will’s comment.
“This wasn’t someone who was shaped by their environment or who was misunderstood, this was someone who had fundamentally different wiring and their mere existence was a threat to the herd. He should have been put down for the good of humanity”
For pedophiles and similar sort of monsters masquerading as humans, isnt it best to put them out of their misery by killing them. Analogous to euthanasia perhaps? And why is jurisprudence so black and white? Shouldnt breivik’s intellectual subscriptions make him worthy of suffering rather than making him ‘unworthy of living’. With the hope of not sounding too sadistic or masochistic, let me opine that only ‘eternal suffering’ can be the biggest deterrent to crime and incarceration for life is hardly that.
With regard to the comment on the previously quoted piece from Will, I am genuinely puzzled. Isn’t the whole point of the “irreversible punishment” argument that human beings and human institutions are fallible in their judgments regarding the culpability of others? How does Will know that “this was someone who had fundamentally different wiring”? Of course, I am even more dubious of the reliability of our judgments as to whether someone “should be put down for the good of humanity.”
As for the last paragraph, I am somewhat aghast. Surely you mean “child rapists” rather than “pedophiles,” as the latter term simply denotes someone who is attracted to pre-pubescent children. It is very possible that Lewis Carroll was a pedophile, but I hope you are not suggesting that he should have been “put out of his misery” for it. But regardless of how it was intended, I just can’t get on board with the sentiment. I guess that I am just not confident enough in my estimation of others depravity to be willing to inflict a punishment that cannot be reversed if I am wrong.
–Dan K.
Varun,
Thanks for the comment. Schopenhauer on suicide would indeed be an interesting topic; thanks for suggesting it.
The problem with the kinds of ‘mercy killings’ you suggest is that we’d be handing out deadly punishment to people with ‘ailments’ – and that ‘euthanasia’ would very quickly (or could) become a form of eugenics: put down all those that are ‘monsters’. Well, in what sense? Killers? Rapists? Un-productive layabouts? Who would do these determinations? A vast bureaucracy? That business sounds very complicated and prone to error.
As for which punishment is worse, I agree – its complicated, but the death penalty is, as pointed out, irreversible, and not subject to correction or compensation if handed out by mistake.