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.