Politics & Law

Yes, Virginia, there is a death penalty: Reflections on the Christmas moratorium

Jonathan Simon

On the 19th of December, the paper of record, the New York Times, ran a story discussing the lower number of executions (39) in 2013 than in a previous years; a trend that began sometime ago (read it here). The causes of this trend are complex and fascinating and worthy of more comment, but here I want to point out something else. How did the Times know on December 19th how many executions there would be in 2013? That still left more than ten days in 2013 and with more than 30 states with capital punishment still on the books, and more than 10 that regularly execute people, surely a last minute surge might have carried 2013 up and over the not much higher number of executions in 2012.

In fact some real problems with execution drug supplies might actually prevent a surge of executions but even a trickle might have done it but that isn’t the reason either. The truth is that the Times and everyone who knows about capital punishment in America knows that in fact (although nowhere prescribed by law) there is in America (even in the most die hard death penalty states) a Christmas moratorium. Actually, I’m told it begins somewhat before Thanksgiving and lasts until after January 1.

But why?  Surely if the story we tell ourselves about the death penalty is true this is a very strange outcome. If executing a murderer is a positive moral act which delivers necessary justice to the community and especially the victims, why don’t we work up to the last minute on Christmas Eve executing the large backlog of prisoners under sentence of death who have exhausted their appeals? Hell, the states are not bound to obey federal work holidays and law enforcement operations continue round the clock generally, so why not executions?

OK, so perhaps this is a concession to the families of the condemned. It can sure spoil your Christmas to be contemplating a son, brother, or father who was just strapped to a gurney and shot full of lethal chemicals by state officials acting at the behest of your community only a few days or hours earlier (indeed any death at or near Christmas is almost always considered an especially stiff blow in our culture).

But what about the victim families? They have to spend every Christmas thinking about their murdered loved ones. Wouldn’t giving them the first Christmas following the delivery of usually long promised execution of “justice”, “closure” as it is approvingly called by everyone, be the best kind of Christmas present?  Even if they don’t outnumber the families of the condemned, it seems a strange that in almost every other thing respecting the death penalty we favor the families of the victims, why not here?

Is it because Jesus wouldn’t like an execution, and, after all, its his birthday (observed)? OK, I’m not a Christian, so I’ll tread carefully here. From my reading of the New Testament, I would have no problem coming to that conclusion (and he was, after all, executed himself); but a fair observer of our culture would have to conclude that real Christians as a community are split on the question of what Jesus would do about capital punishment.

The answer it seems to me is inescapable. Christmas, whether you are a Christian or not, is globally recognized and admired for the its message of celebrating humanity (of course many of my Jewish ancestors in the Russian Pale during the 19th century would have found this deeply ironic as a Christmas pogrom came down on them).

The divinity of Jesus may be debatable, but the message that the dignity of divine creation is one embodied in humanity itself has become a central core of our international human rights tradition and deserves universal acceptance. It is a message that finds independent expression in Judaism, Islam, and most of the world religions.

The death penalty is incompatible with recognizing the humanity of the person being executed and the humanity of the people who have to carry out the execution.  That is the reason a Christmas moratorium (I almost wrote truce) is observed in Texas, Virginia, and everywhere in the United States. Whatever may have been true in 1789, or 1868 (when the 14th Amendment was adopted), in today’s world what denies humanity is not a moral good. At Christmas, at least, we acknowledge that.

So Virginia, the hard truth is this: Santa Claus is a myth. That means it’s not true or false; it depends on beliefs and the cultural practices that give them life. If you woke up on Christmas and found presents under your tree, Santa Claus does exist.

The idea that executing people is a positive moral good, in contrast, is simply a lie; and the Christmas moratorium proves that everyone knows that.

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

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