Justice Returns | Opinion

This is the first part of a two-part series on the resumption of federal executions in the U.S. by the nation's most prominent retributivist advocate for the death penalty, New York Law School professor Robert Blecker. Part two can be read here.

On July 14, 2020, the United States put to death Daniel Lewis Lee, thus restoring federal executions after a 17-year hiatus. Having robbed a family, including an eight-year old girl, and shot them with a stun gun, as the Department of Justice website recounts, Lee, a white supremacist, "covered their heads with plastic bags, sealed the bags with duct tape, weighed down each victim with rocks, and threw the family of three into the Illinois bayou."

Predictably, the ACLU called this resumption of federal executions "a truly dark period for our country." Many of us, however, see the execution of vicious predators as a momentary bright spot for justice.

Opponents attack the death penalty as arbitrary and unnecessary: We can't really define, much less decide, whom we should label as the worst of the worst, they claim. And even if we could, life in prison with no chance of parole offers us a better, more just alternative.

They're wrong on both counts.

For 12 years, I wandered freely inside Lorton Central Prison, flagship of the nation's only all-Black prison system, engaging generations of street criminals confined there—many with long sentences for selling drugs and armed robbery—others with life sentences for murder. During days and nights, scattered over years, I leaned back and listened as young Washington, D.C. street criminals examined closely how and why they killed, what they thought and felt as they killed, and what it meant to them looking back.

That experience, along with hundreds of hours in a dozen other prisons and on death rows across the United States over decades, has taught me that to an appalling extent, under cover of "justice," we do define some crimes arbitrarily; we do greatly over- and under-punish criminals.

Take robbery and drug dealing. "Hustling is all about preying on somebody," David "Itchy" Brooks insisted. "But so [are] a lot of other things they call 'legitimate.' In the straight world, it's still a system of preying. It's just using your mind instead of your muscle. It might seem warped to a person who's never looked at it from that angle, but that's what's happening. People preying on people. Doing the same thing we're doing. I'm hustling you; you['re] hustling me. Only difference is, the law doesn't frown on your kind of hustling—it just frowns on mine."

It annoyed me to hear convicted criminals evade moral responsibility by insisting, "I'm no worse than you: Everybody's doing the same thing—you just give it a different name." And yet, who can deny that the justice system favors powerful people who commit electronic thefts and swindles, or "lobby"—of course that's not bribery—with heavy "campaign contributions" and take their cut for using their clout?

Were convicted robbers and drug dealers serving long sentences inside Lorton any worse than Enron executives who secretly cashed out their own stock options while counseling lower-ranking employees to keep pouring their life savings into the failing company?

Most street crime does stem from a pecuniary motive. "In a capitalist society, it's very hard not to commit crimes, even when you don't come to jail," insisted Alvin Hines, a thoughtful Lorton inmate. "Once they are taxable, they are no longer crimes. Alcohol and cigarettes kill many more people than marijuana and heroin together. But the government gets its cut."

The guys inside Lorton prison accepted and expected double standards—one for the rich and powerful, and another for the rest of us. "Great robbers punish little ones," declared John Locke over 300 years ago—the prisoners loved that line—"but the great ones are rewarded with laurels and triumphs." This moral relativism takes us back to the ancient sophists, who insisted there was no truth—everything was subjective and arbitrary.

And yet, as Aristotle countered, while many behaviors may be malum prohibitum,bad only because they are prohibited, other acts are malum in se, really bad in themselves.

Let's concede these convicts their claim of society's double standards when it comes to commercial exploitation and theft. We do tax some forms of drug dealing (alcohol and nicotine, for example) while prosecuting others: Some drug dealers spend their lives on corporate boards as pillars of society, while others serve lives in prison as its hated dregs. Arbitrariness does infect our criminal justice system. And violators may too often suffer punishment for what Alvin Hines aptly termed "man-made crimes."

Returning from D.C. to New York by train after a few days inside the prison, reflecting on sympathetic stories and mishaps, injustices and abused childhoods, moral relativism and hypocrisy (my own included), at times I began to doubt the objective reality of the very capital categories I sought when I first went inside Lorton to find and define the worst of the worst of the worst.

But then, as now, monsters reared their ugly heads.

Wesley Ira Purkey violently raped and murdered a 16-year-old girl, and then dismembered, burned and dumped the young girl's body in a septic pond. He also was convicted in state court for using a claw hammer to bludgeon to death an 80-year-old woman who suffered from polio. On July 16, 2020, the U.S. federal government executed him.

Danny Rolling stalked, raped and dismembered college students; Timothy McVeigh bombed the federal building, killing 168, and later callously characterized 19 children killed by his blast as "collateral damage"; Joshua Komisarjevsky sexually abused an 11-year-old girl, posted cell phone photos of his terrified, helpless victim, bound and tied her and her older sister to their beds, where they laid for hours before he doused them in gasoline and burnt them alive. Do you doubt, can you doubt, that these monsters and dozens like them deserve to die?

On the other hand, some death penalty advocates—the "kill them all" set—simplistically lump all murderers together. But the robber who sticks up a 7-Eleven, panics and shoots the clerk who grabs for his gun, absent other aggravating circumstances, clearly does not deserve to die. Charles Ng, who maintained a torture chamber in his basement, kidnapped women with their children, videotaped their torture over weeks, exposed them to unspeakable misery, raped, then murdered and mutilated them, clearly does deserve to die. They don't inhabit the same moral universe—objectively.

About the same time that some Lorton prisoners got their life-or-death sentences for robberies gone bad, Ford Motor Company executives refused to modify the Pinto's exploding gas tanks, preferring to absorb the costs of defending and delaying lawsuits than to prevent hundreds of drivers and passengers from being incinerated by rear-end collisions. We who would condemn hired street killers and those who pay them must also condemn corporate killers who, intentionally or recklessly with a depraved and callous indifference, take innocent lives from the purest of motives—the profit motive. Across the U.S., these depraved, wanton "red-collar killers," as I call them, largely go unpunished.

We need to sort out what it really means to "kill from a pecuniary motive."

After over 30 years inside prisons, with convicted killers as expert street guides, searching for the meaning of the lives they lived and took, I came to realize that the legal fiction called "felony murder," coupled with a code of "no snitching," ensnared a shocking number of relatively innocent people, especially in Brown and Black communities. Not all murders are alike. And not all murderers deserve to die. We must abolish capital felony murder if we have any hope of reserving the punishment of death for those who clearly do deserve to die. But the worst of the worst stand out as simply more objectively despicable than the vast majority of common murderers.

Legislatures can never precisely or exhaustively catalogue capital killings in advance: Justice can't be reduced to an algorithm or written into a single, simple formula. Human experience transcends the strict application of written rules. Thus, statutory language must inevitably remain murky—intuition, discretion and informed emotion must play their part in picking out the worst of the worst of the worst.

The People's representatives, however, can and do make morally relevant distinctions to guide juries' discretion, based on informed emotion, on who should live or die. Clearly, they should eliminate capital robbery felony-murder while including in the capital core those especially "heinous, atrocious and cruel," or especially "wanton and depraved," killings. The heart of evil remains selfish cruelty. Thus, we condemn their absolute selfishness and cowardice coupled with their extreme indifference to human life.

The most vicious predators overwhelmingly evoke anger and disgust, even from hardened killers. This collective rage can act as a reliable barometer of evil and deserved punishment.

Ultimately then, they do deserve to die not because we say so. We say so because they do.

Robert Blecker, New York Law School professor of criminal law and author of The Death of Punishment, has been creating a TV series, Itchy, set inside Lorton Central Prison.

The views expressed in this article are the writer's own.