The Cost of Mercy

Review: 'End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice' by Brandon L. Garrett

Death chamber at Southern Ohio Correctional Facility / Getty Images

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Americans like capital punishment. Support for the practice has remained at or above 60 percent since 1972, sometimes reaching as high as 80 percent. In 2016, a plurality of those surveyed said the death penalty was imposed "not enough," while voters in Nebraska, Oklahoma, and California voted yes on pro-death-penalty referenda.

The number of executions per year has fallen notably since the penalty was reinstated in 1976—down from 98 in 1999 to 20 last year. However, 2016's rate is not meaningfully lower than that of the late ‘80s and early ‘90s, when there were as few as 11 executions in 1988.

It is thus bizarre that death penalty abolitionists so frequently insist the practice is on its way out. End of Its Rope, from UVA law professor Brandon L. Garrett, is the latest text to sell this strange belief.

"We can abolish the death penalty. We must abolish the death penalty," Garrett writes. "Ten years ago, that declaration would have been laughable, just another liberal fantasy. But no more."

What follows is 300-odd pages of the aforementioned liberal fantasy: a theory of why the death penalty has dropped in recent years, how this evidences its impending abeyance or abolition, and how "the death penalty’s demise will allow us to focus on remedying" the whole list of ills the left attributes to the justice system.

Garrett cites several causes of the recent decline in executions. One is the precipitous decline of the crime rate—this makes sense, since if there are fewer crimes, there are fewer criminals. He also points to better-funded and more effective public defender programs. To the extent this is accurate, it is to be lauded—a healthy adversarial justice system requires good defenders along with prosecutors.

But Garrett's evidence that public defense has been weak (leading to high rates of execution) is thin, leaning for pages on a single anecdote about a sleeping defense lawyer to prove his point. Anecdote is generally a key feature of Garrett's argument, relying as abolitionists tend to on the worst examples of procedural misconduct to indict all of capital punishment.

Conspicuously absent from Garrett's narrative are the deliberate efforts of abolitionists to lobby and litigate the penalty out of existence, what Justice Samuel Alito called a "guerilla war against the death penalty." Although Garrett does allude to the enormous cost (millions) and time (decades) involved in actually executing someone, he manages to omit how these numbers are driven by anti-death-penalty attorneys, filing motion after motion to forestall execution. This strategy, stretching back to the NAACP Legal Defense Fund's expanded death penalty litigation in the 1960s, has prompted legislation like the 1996 Antiterrorism and Effective Death Penalty Act—passed in the wake of the Oklahoma City Bombings—and 2016's proposition 66, which California voters passed by some 300,000 votes.

Garrett is quite certain that the death penalty not only is, but ought to be, dying. This is for the standard reasons: people might be mistakenly executed (though there is no conclusive evidence that anyone ever has been, a fact Garrett cites Antonin Scalia to concede); the death penalty is applied in a racially disparate fashion (true, though a reason for reform, not abolition); lots of other countries have already abolished the death penalty (foreign nations' laws do not apply to the United States, Justice Stephen Breyer's wishes the contrary).

This is a lead-up to Garrett's real agenda: once we do away with the death penalty, we must overhaul the whole justice system. We will replace execution, life without parole (which Garrett condems for a whole chapter), and punitive justice per se with what Garrett calls, in the grandiosely titled final chapter, "the triumph of mercy."

Mercy is, by its nature, an exception rather than a rule. Eighteenth century English jurist William Blackstone considered the possibility of mercy one of the merits of a monarchy, as the ruler is, in his particular judgement, able to "soften the rigour of the general law, in such criminal cases as merit an exemption from punishment." Mercy is granted not because it is earned, but precisely as an unearned gift. It is the process by which we get what we do not deserve, the secularized form of divine intervention in the juridical law of nature.

To Garrett, however, mercy must become the rule itself—to borrow a phrase, a transvaluation of all values from the standpoint of mercy. The death of the death penalty is "a process in which mercy has slowly but surely triumphed over judgement," he writes.

"Mercy at its most fundamental [is] empathy for another person," Garrett says, neatly discounting the way in which mercy for one is often a denial of justice for another. The triumph of empathy—always for the criminal, never for the victim—requires us to embrace a whole host of soft-on-crime "solutions." That includes the new vogue in criminal justice "reform": moving beyond the largely mythical "non-violent, low-risk drug offender" to releasing violent criminals. "We have to embrace mercy for the most serious offenses," Garrett writes. "We have to be willing to shorten prison terms and release convicts. In short, we have to focus on rehabilitation and mercy."

All of this follows from the anthropology of the abolitionist: a Pinkerian faith in the eventual end of violence, combined with a Rousseauian belief that evil, the provenance of violence and crime, is incidental rather than essential to the human condition. This is what causes Garrett to look approvingly on the jury that spared the Aurora theater shooter the death penalty, somehow a "triumph of mercy" as opposed to a perverse miscarriage of justice.

Sniveling pathos in the name of violent murderers performs neatly the death penalty opponent's prestidigitation, transforming the hardened criminal into an object of sympathy simply by hiding his victims up the abolitionist's sleeve. It is a call for an abdication of justice per se, a replacement of the justicial ideal of transgressions answered by the community with a secret belief that deep down, the possibility of evil in every man's heart can be corrected with a sufficiently well-funded prison library.

In the wake of heinous events—the Oklahoma City bombing, the Emmanuel AME Church massacre, the Las Vegas mass shooting—it is inconceivable that society should deprive itself of the ultimate retribution. If the polls are to be believed, Americans want to retain that right. Policy makers would do far better to listen to these constituents than to academics like Garrett who think "mercy" an adequate answer for inconceivable crimes.

Charles Fain Lehman

Charles Fain Lehman   Email Charles | Full Bio | RSS
Charles Fain Lehman is a staff writer for the Washington Free Beacon. He writes about policy, especially crime, law, drugs, and social issues. Reach him on twitter (@CharlesFLehman) or by email at lehman@freebeacon.com.

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