The death penalty can express the outrage of society


(The Conversation is an independent, nonprofit source of information, analysis, and commentary from academic experts.)

(THE CONVERSATION) During its hearing on October 13, 2021, the Supreme Court appeared in favor of reinstating the death penalty for Dzhokhar Tsarnaev, who was convicted of planting homemade bombs, with the help of his brother , Tamerlane, along the crowded city of Boston. Marathon run on April 15, 2013. The bombs killed three people and injured 260.

As the brothers escaped the police, they killed one policeman and injured many more. While trying to escape, Dzhokhar Tsarnaev accidentally killed his brother by running over him with a vehicle.

Prosecutors took the case to the Supreme Court after the First Circuit Appeals Court overturned Dzhokhar Tsarnaev’s death sentence on the grounds that potential jurors had not been adequately vetted about their exposure to the media coverage of the bombing and that jurors had not received any evidence. of Tamerlane’s past crimes.

Tsarnaev’s lawyers wanted jurors to view his older brother’s influence as a mitigating factor in learning from his sentences, and evidence of Tamerlane’s past violence was a key part of that argument.

I study criminal law and punishment as a political institution, including how it must fit into the values ​​of a liberal democracy to be justified. Tsarnaev’s case is complicated due to the immense damage he caused to so many people.

My research examines how punishment affects members of society beyond criminals and their victims. One of the main ways in which punishment has a wider social effect is its ability to express strong moral condemnation of actions that violate the basic rights of members of society.

But the punishment also expresses the moral condemnation of the criminal. This is where the risk comes in, as a strongly negative attitude towards an individual can reinforce damaging stereotypes about racial and ethnic groups.

Collective punishment and condemnation

Joel Feinberg, one of the most influential legal philosophers of the 20th century, explained that punishment has an “expressive function”. By this, Feinberg meant that the punishment expresses the idea that the government condemns criminal action. Criminal conviction alone is not sufficient to express moral condemnation, for punishment is necessary to show that criminal laws are more than empty words.

The ability of punishment to send a message makes it useful in reinforcing the values ​​of a society. In liberal democracies like the United States, the government represents members of society. Thus, punishment is a means by which society expresses its values. Not only does punishing communicate that society condemns an action, but also the severity of the sentence communicates how much it condemns the criminal act.

Feminist political theorist Jean Hampton explained that the expressive capacity of punishment is valuable because it enables society to express solidarity with victims of crime. When people commit crime, Hampton argued, they put their own goals and interests above those of the people they hurt in the process. In cases of violent crime, this is especially true. Punishing Tsarnaev is a way of communicating that society values ​​the lives of victims.

If the idea that punishment communicates solidarity with victims seems abstract, consider a case where a crime was insufficiently punished. Brock Turner, a Stanford student who was convicted of sexually assaulting an unconscious student, was sentenced to just six months in prison in the county, although he would serve only half of it. Many people were outraged by the short sentence, given the nature of his crime and the strong evidence against him.

Stanford law professor Michele Dauber led a successful campaign to recall the sentencing judge, and when she won, she said: “We voted that sexual violence, including sexual violence on campus , must be taken seriously by our elected officials and by the judicial system. “

The sentence was interpreted as a lack of solidarity with the victim and with all victims of sexual assault. The reminder was a message to other judges that citizens wanted tougher sentences for rapists because harsher sentences would show that the lives of rape victims matter.

The ability of punishment to communicate a society’s values ​​is helpful, but it can also reinforce negative attitudes towards the person who committed the crime – and not just towards the criminal act itself.

In the Tsarnaev case, both victims and foreigners have moral reasons not only to condemn his criminal acts, but also to condemn him. It would be understandable if people resent him or have other negative attitudes towards him, given the nature of his crime. When punished, the state reinforces and justifies these attitudes as legitimate.

Risks of racial prejudice

But the fact that punishment is the expression of negative attitudes makes it risky. To begin with, not all negative attitudes towards others are justified.

Implicitly or explicitly, one may dislike members of a racial group or ethnic minority, or associate negative stereotypes based on gender or sexual orientation. These sources of negative attitudes present two types of risk given the expressive function of punishment. The first risk is that implicit or explicit racial prejudices are confused with justified negative attitudes when a defendant is prosecuted and punished. The second is that the punishments themselves, even justified, could reinforce existing implicit and explicit prejudices.

To understand how these two risks work, consider the overrepresentation of black Americans in the criminal justice system. Recent data shows that while incarceration rates for black men are the lowest since 1989, they are still 5.8 times more likely to be incarcerated than white men.

Black defendants are not only more likely to be sentenced to death than their white counterparts, but also, once sentenced, they are more likely to be actually executed than white death row inmates.

The first risk plays a role in over-punishing black Americans because in many cases police, prosecutors, judges, and juries confuse their unwarranted negative feelings based on race for appropriate feelings of resentment based on an accused. having committed a crime. Thus, if they have negative attitudes towards an accused because of their race, a jury may find guilt where there is none, or punish excessively.

Sociologists talk about this phenomenon when they explain that implicit biases or unconscious negative attitudes affect criminal justice outcomes, especially for black Americans. Implicit prejudice is at least one factor explaining why black Americans are given harsher sentences than white criminals who commit similar crimes.

The second risk is more subtle. The message of punishment is that the criminal’s act is bad, and so is the criminal. Seeing members of a marginalized racial or ethnic group punished could reinforce harmful negative attitudes.

The evidence for this second risk was recently demonstrated in a disturbing study: The more white Americans learn that black Americans are overrepresented in the criminal justice system, the more they can seek increasingly punitive policies. The study authors linked this to pervasive implicit biases in which white Americans subconsciously associate black faces with crime. Thus, punishing black Americans reinforces an unjustifiable association between blackness and criminality. It has a profound effect on the lives of all black Americans, whether or not they commit a crime.

The risk of implicit bias

Tsarnaev is not black. But he is Chechen, a predominantly Muslim ethnic group from Eastern Europe.

In the United States, studies indicate that half to two-thirds of non-Muslim Americans have implicit anti-Muslim prejudices. Legal scholar Khaled Beydoune explains that federal counterterrorism plans since September 11 have treated Muslims – and those who are believed, because of their ethnicity, to be Muslims – as suspected terrorists on the sole basis of their perceived religion.

Growing implicit prejudices against Muslims and aggressive policing of Muslim communities already expose American Muslims to similar treatment in the criminal justice system to that of black Americans.

These risks do not mean that the death penalty is never justified or that it is not justified in this case. But it does mean that policymakers and the public must take these risks into account when drafting laws and developing sanction policies.

This article is republished from The Conversation under a Creative Commons license. Read the original article here:


Leave A Reply