The Anton Chekhov short story “The Bet” opens with a morbid dinner conversation. The guests debate which is worse—to rot in prison forever, or to be killed swiftly? The attorney general, Bill Barr, weighed in last week on the side of Chekhov’s banker, a rich man who favors capital punishment. (Barr announced that the federal government will resume killing those convicted of capital offenses, a practice it had stopped nearly 20 years ago.) At the banker’s table, a younger man disagrees. They make a bet: If the young man spends 15 years in the rich man’s guest cottage, with food and reading material of his choice slipped under the door but no other human contact, at the end of his captivity he will inherit a large portion of the banker’s fortune. He can leave whenever he wishes, but would then forfeit his prize.
If any crime deserves capital punishment, it is spoiling Chekhov stories, so I will not reveal much more. (You can read the whole story here, in about seven minutes.) The tale unfolds from the jailer’s perspective, and through lists of books the prisoner requests. The requests are fleeting silhouettes of the man, cast ever more enigmatically as his eager youth dissipates and he becomes, in isolation, something less or more than human. The banker and the prisoner both end up humbled, at various points, as they realize they had wagered confidently on matters they could not comprehend: death on the one hand, and the effects of long-term captivity on the other.
Barr, in his statement announcing the resumption of executions, showed no such humility. He gave, as a reason for the resumption, the fact that Congress has authorized executions, which seems to me a rather weak argument for killing a man. The Department of Justice press release also detailed the crimes of the five men whose deaths are now scheduled for December 2019 and January 2020. These lurid descriptions likewise fell short of a reason to kill the men, since no one disputed that they had committed heinous crimes, only that the federal government should kill them.
Where would Chekhovian humility deliver us? Faced with two alternatives—each a punishment whose consequences are inconceivable to punisher and punished alike—one option is to apply neither. I am in Norway, where the last person executed was a Nazi collaborator, Ragnar Skancke, in 1948, and even the most heinous crimes now receive a punishment of no more than 21 years (with extensions possible if the criminal remains a threat to public safety). Under this theory, both punishments contemplated by U.S. policy makers are like untested drugs. We have very little sense of what happens when you administer death or life imprisonment to a person, and rather than play Mengele, we should confine ourselves to punishments that are conceivable to us. Every adult has at least a sense of what 21 years feels like. One side benefit of this view is that the punishments are also more likely to be conceivable to the criminals, and a conceivable punishment may deter more effectively than one that is abstract.
I am on Barr’s side, however, in one respect. There are crimes that deserve death, and indeed there are crimes that deserve a death at least as painful as the one dealt out regularly to death-penalty victims in the United States. Certain crimes are so depraved that merely to witness or read about them is to feel traumatized and victimized, secondhand. If you think no human deserves to suffer before dying, then I hope you never lose your innocence.
Some people deserve to be executed. But does anyone, or any state, deserve to be an executioner? That, I think, is a harder question, and I admit my moral hunches lead me to answer in the negative. But hunches aren’t persuasive as policy arguments, and Barr’s may well push him in the opposite direction. These hunches should be subjected to argument and consideration, of the type not evident in any of Barr’s comments about his own recent decision.
Some argue that the hangman performs a noble service, a professional duty that relieves him of moral burdens, just as a surgeon has no duty to investigate whether her patient deserves to be healed. One difference between a hangman and a surgeon, however, is that to kill a man nowadays requires relatively little expertise.
If we must choose between life imprisonment and the death penalty, then, I would suggest certain modifications of the latter, apart from the obligatory examination of whether it is applied fairly and accurately (which, by all evidence, it is not).
If we are to have such a penalty, we should implement it in a way that forces more contemplation of the penalty by the citizens implicated in it. Conducting executions publicly would be one especially grotesque way—but it would also be imperfect, since anyone could just look away, and in any case, a public spectacle would further degrade the dignity of the victim and the proceedings. In classical Islamic law, executions and other punishments are required to be public, and in France, public executions continued until the Second World War.
Instead, I suggest, if we are to kill criminals, that the execution be conducted not by professionals, but by a randomly selected adult citizen. The model would be jury duty or conscription. If your number is called, you must report to the penitentiary in Terre Haute, Indiana, and be ready at an appointed time to read the sentence aloud to the criminal and press a button that sends pentobarbital into his veins. The duty would end once the selected citizen failed to find a pulse.
Samuel Johnson famously said that the prospect of an execution concentrates the mind wonderfully. The likelihood of selection, for any individual, would, of course, be infinitesimally low. But even the unlikely prospect of selection should concentrate the minds of citizens, too, and make the act of institutional killing slightly more conceivable. As Albert Camus wrote in “Reflections on the Guillotine,” “If people are shown the machine, made to touch the wood and steel and to hear the sound of a head falling, then public imagination [will be] suddenly awakened.” I see little to lose from more concentrated thought about life and death.