To Kill a Killer

On the impossibility of proportionality in retribution

This isn’t the first time I’ve written about the death penalty.

In 2014 I reviewed Austin Sarat’s Gruesome Spectacles for The Rumpus. That book left me with a new insight into the death penalty; I’d always felt that it was wrong for the state to have the power of life and death over its citizens; that death is permanent and evidence can change; and that, therefore, we are better off just not having “death” as an option in criminal justice. Yet Sarat’s book, which is about “botched” executions in which the condemned usually suffers horribly, made me realize that when the people who were put to death were undoubtably guilty and had done REALLY terrible things, I was incapable of feeling bad for them. To use one example, a man rapes and drowns a toddler, then he dies, no matter how he dies, people are just glad he’s gone. And if he suffers, we might just say, “good.”

I reviewed that book about four years before the shooting at what I have always called “my mom’s school.” Marjory Stoneman Douglas High School was a lot of things, but it was also my mom’s workplace for more than 20 years.

I was far from home, teaching a class in Iowa, where I live now, on Valentine’s Day, 2018. By the time my class ended at 3:15, the carnage was over. I checked my phone and saw my dad had texted me that “mom is okay.” I replied “what happened?” and when he didn’t reply I called. He said he didn’t know how to answer my text. He was still in shock. He’d been home when the shooting was first reported on the TV, and he spent what felt like a very long time spinning in fear before my mom managed to borrow someone’s phone to call him and let him know she was okay. But that was all she could say, and then she was removed with everyone else to a “safe location” which she didn’t get out of until around 8pm that night — the same night 17 families got the worst news in the world.

Among the dead: kids she knew, coworkers she shared her lunch breaks with, the granddaughter of her friend. Among the damaged, everyone she knows. The community was torn apart, everyone suing everyone, everyone blaming everyone, yet everywhere you saw “MSD STRONG” signs and bumper stickers. It happens wherever there’s a shooting. Why do we lie? Why do we insist we are strong when we are most defeated? 17 lives brutally taken. Others followed in suicide. Others bear physical injuries they will suffer with as long as they live. Others carry severe psychological scars. Teachers left the profession; some left the country. My mother has not slept well in years. This is not us being “strong”; these are the bleeding wounds of a great and terrible wrong inflicted upon people just trying to live their ordinary lives.

This morning I read an op-ed by Robert Blecker, who refers to himself as a “retributivist.” His piece was titled “If Not the Parkland Shooter, Who Is the Death Penalty For?” This is, in my biased opinion, a powerful question, even if I don’t fully agree with Professor Blecker’s answer. But here is the key argument:

(I’ve removed the murderer’s name because I despise it.)

For [the murderer], adequate, proportional punishment means death. His crime was coldblooded and calculated. At 13 or 14, he first thought about shooting up a school. He studied how mass murderers had committed their crimes. He told a psychiatrist that he thought, “If I do go onto the school campus, the police are not going to do anything, and I would have a small opportunity to shoot people for maybe 20 minutes.”

He carefully prepared his gun, put it in a bag, and to avoid arousing suspicion, told the Uber driver who took him to Marjory Stoneman Douglas High School that he was headed to music class. He wore a common school polo shirt so he could blend into the crowd of students fleeing the scene.

His crimes were merciless. He killed some he’d already wounded. “I wanted to kill as many people as I could,” he said. He told the psychiatrist he stopped only when he couldn’t find anyone left to kill.

Most mass shooters die in a hail of police bullets or by suicide. But not [this murderer]. In jail, he spoke repeatedly by phone to a family friend. Telephone logs summarize the substance of these conversations. At least twice, [he] told the friend that he would wear a mask during his death penalty trial so that the jury wouldn’t see him laugh or smile.

The jury did not sentence this remorseless killer to death, which felt like a gut punch to many, many people connected to the crime, whether closely or more tangentally. Are the families of the victims bloodthirsty? Do they seek vengeance? I don’t think so.

Professor Blecker calls for retribution in the form of death, not because he believes that would be the best way to keep society safe from further harm, and not because he believes that it would deter future would-be murderers:

Instead we [retributivists] insist that [the murderer’s] human dignity requires his just punishment as an end in itself. By rejecting as morally insufficient the defense’s plea that [his] life should be spared because he suffered fetal alcohol spectrum disorder, by holding him fully responsible and executing him, we acknowledge him as fully human, condemning the free will that produced his monstrous crimes.

I have to admit, I agree with this: the conclusion that he couldn’t help but become a mass murderer is something worse than “infantilizing” — it’s “mechanizing”: it suggests that every person with a brain injury is a broken machine which cannot be expected to operate safely. The world is full of people who have brain injuries; does that make them “not responsible” if they go on a ruthless killing spree? To agree to this is to deny very many people their humanity.

But I still do not believe the state should wield the power of life and death. The great tragedy here, to me, is that the death penalty was on the books and for the very worst crimes. So if a crime is not punished with the death penalty, it’s like the state is saying “eh, it wasn’t so bad.”

If the death penalty did not exist, if the “worst punishment available” were life in prison, then justice for the worst crime would be served by life in prison. But if it exists, and the idea is that it is to be reserved for the worst crimes, then it must apply in a case where a man has ruthlessly and remorselessly murdered as many people as he could.

The pain caused by this decision is not the tragedy that the murderer will not die; the pain is the tragedy that the worst crime is not being acknowedged with the worst punishment. As the title asks: if not for this, then for what?

When I dream of a more just world, I wish that this murderer could be put in the position of each of his victims, one by one, and feel everything they felt. I want him to have to endure their fear and confusion and pain. Once for each of the murdered, and once for each of the injured, and for everyone who lost someone they loved, he should have to feel the bottomless pain of senseless loss, layer upon layer. He should suffer the disrupted dreams of the victims who cannot sleep at night; he should desperately wish to flee the country; he should be driven to near-psychosis by the what ifs and what should I haves and the what should I nows. He should be haunted by the survivor’s guilt and the victims’ anger. He should even have to endure the hour of shock and fear of the person at home who wasn’t sure if his wife was okay. Enduring all of this should take far longer than his natural life. In this ideal of justice, he would be punished forever.

But that is not a possible punishment. And anything less is necessarily inadequate. If the state of Florida were to kill him, they would endeavor to do it quickly and painlessly, in a medicalized environment. It would come after years of appeals. He would have decades to come to terms with his death. How is that proportional to the nightmare of what he did?

Proportional isn’t possible; but we as a society owe it to the families to acknowedge that this crime was among the worst crimes. It should be met with the harshest punishment on the books. Which should be life in prison.

And if he dies in prison, no matter how it happens, we’ll just be glad he’s gone. And if he suffers, we might just say “good.”