On October 27, 2018, the Tree of Life synagogue in Pittsburgh was hosting Shabbat services when Robert Bowers entered the building and opened fire. He murdered 11 congregants and injured two others before running out of ammunition and surrendering.
Bowers’ rampage was fueled by antisemitism. During the attack he shouted “all Jews must die,” and he repeated this sentiment to officers while being apprehended. He also insisted that Jews were committing genocide against “his people.” Immediately before the attack, he had posted on Gab, an infamous social media cesspool, “I can’t sit by and watch my people get slaughtered. . . . I’m going in.” Unsurprisingly, Bowers had a long history of racist and antisemitic contributions to the site.
Bowers’ legal team offered a guilty plea in return for a sentence less than death. Federal prosecutors refused. (President Biden’s Department of Justice continues to seek death sentences, despite Biden emphasizing his opposition to capital punishment.) Bowers’ trial featured exhaustive evidence: 911 recordings, survivor testimony, police testimony, body cam footage, expert witnesses, and the like. Bowers, with the blessing of counsel that included a celebrated capital litigator, admitted the fatal shootings. The jury took nine hours to find Bowers guilty on all 63 counts, including multiple hate crimes, ultimately rejecting the defense that Bowers suffered from delusions or schizophrenia.
Tree of Life congregants’ public testimony expresses remarkable concern for the moral complexities of capital punishment. Not surprisingly, they disagree about the justice of Bowers’ sentence. For some, his execution is the only punishment appropriate to the overwhelming evil of eleven antisemitic murders. Life in prison would be far too lenient for such a monstrous act. Others maintain that Bowers’ sentence will deter future murderous hate crimes. To refrain from executing him would result in even more innocent lives lost. For both camps, executing Bowers is morally permissible, perhaps even morally required. Yet some Tree of Life community members disparage the death penalty as mere vengeance and insist that even murderers like Bowers should be spared.
This debate reflects a deep philosophical disagreement that I summarize elsewhere. The point I want to make here is that even fans of retributivist or deterrent rationales for execution ought to oppose capital punishment. Why? Because whenever there is uncertainty about the proper amount of punishment, sentencers must err on the side of leniency, especially when execution is on the table. All capital cases are marked by uncertainty, and leniency in capital sentencing means imposing a sanction less than death.
My criticism is a procedural one. It takes no stand on the intrinsic morality of execution, and it succeeds even if the penalty is morally respectable. My argument relies instead on important principles guiding political and legal institutions and activities. The most important among these is the principle of remedy. This simple and uncontroversial principle states that legal institutions must fix their mistakes; more concretely, the principle demands a robust appeals process, the release of incarcerated innocents, and so on. Any legitimate legal system must pay fealty to the principle, because legitimate states must not wrongfully coerce their citizens. So when states do wrongfully coerce their citizens, the principle requires them to make every effort to stop committing injustice and to rectify any injustice caused.
So how does the principle of remedy get an abolitionist argument off the ground? We start with the common conviction that punishments must fit the crime; the harshness of a punishment must match the moral gravity of the offense. It follows that overly lenient and overly severe sentences are unjust. A $500 fine is too forgiving for the crime of kidnapping; drawing and quartering is too cruel. Both should be rejected. A related idea is that under-punishment and over-punishment are morally symmetrical: a sentence that under-punishes a wrongdoer by one year in prison and one that over-punishes by one year are equally unjust. If you believe that over-punishment is worse than under-punishment, that’s fine by me; such an assumption will make my argument even stronger. But to avoid controversy, let’s assume that the sentencing injustice is symmetrical.
If under-punishment and over-punishment are equally wrong, then irrevocable over-punishment is worse than under-punishment. Why? Because the former involves two wrongs, over-punishment and irrevocable punishment. Irrevocable punishments are wrong because they violate the principle of remedy.
The abolitionist argument takes initial shape here. Because execution is irrevocable, it’s better to refrain from execution, even if a life sentence does not give a murderer precisely what he deserves. However, the friend of the death penalty has a ready reply. If sentencers are sure, and sure for good reasons that the accused should be executed, there is no risk of injustice, and seemingly no reason to refrain from the ultimate punishment. My argument would seem not to apply to open and shut cases like the Tree of Life massacre. After all, there is no doubt that Bowers committed the heinous acts for which he was convicted. Even if the jury was careless (we have no evidence that it was), they correctly found him guilty. And if execution is ever allowable, it will be in cases of mass murder.
To show how my argument clears this hurdle, I will make some general observations, and then introduce specific considerations bearing on Robert Bowers.
There are many possibilities for error in sentencing that cannot be eliminated in capital trials. For example, it is impossible to prove that jurors correctly applied the beyond-a-reasonable-doubt standard of guilt, as we cannot peer into their mental deliberations. And mock jury studies suggest jurors often go seriously wrong on this front. If we don’t know whether jurors use the required standard of proof, we cannot be sure of the sentence. In addition, it is exceedingly difficult to determine whether those acts most clearly deserving of death, like mass murder, are committed by someone mentally healthy enough to be responsible for their crimes. The presence of the desire and motivation to commit such acts suggests psychopathy or other mental illnesses. Finally, the very morality of capital punishment is a matter of significant disagreement: while some people are convinced that execution is morally acceptable, others deem it an affront to humanity. Certainty thus looks impossible to come by.
The point about mental illness brings us full circle. When Bowers was a child, his parents physically and mentally abused him. His mother cut herself in his presence, and his father committed suicide. Bowers was suicidal by age 10 and repeatedly tried to kill himself; as a result, he spent time in a variety of psychiatric institutions. However, his mother repeatedly refused to let him go to outpatient therapy. At trial, a forensic psychiatrist who examined Bowers for 40 hours testified to Bowers’ delusional schizophrenia. The psychiatrist appealed to “overwhelming evidence” that Bowers’ mental illness made it impossible for him to understand the wrongfulness of his acts or to form the intent to kill that must be present to secure a death sentence. Two other psychiatrists took the stand to agree with the diagnosis and the assessment of Bower’s fitness for execution. Of course, the prosecution called its own psychiatrist, who argued that Bowers suffered from schizoid personality disorder, rather than delusional schizophrenia or any other mental illness that would impair his control over his behavior. The psychiatrist said that because antisemitic and white supremacist views are widespread, Bowers’ acceptance of them is not delusional. Here we find empirical disagreements about Bowers’ mental states and more theoretical controversies about whether being committed to white supremacist conspiracy theories is delusional. The question is how any of this is to be resolved. It must be, if certainty is to be achieved and Bowers’ death sentence is to be legitimate. Readers might wonder if I have proved too much. Many non-capital trials are shot through with uncertainty. So my view might seem to demand the abolition of all legal punishments. This result would be a bridge too far for many people. Luckily, it’s not one we need to cross. Noncapital punishments can be revoked, so certainty is not a moral necessity in such cases. To be sure, wrongful noncapital punishments cannot be perfectly revoked: the unjustly incarcerated person cannot gain back the days lost behind bars. But very few wrongs are perfectly revocable, and yet most of us are committed to the possibility of fixing our moral mistakes. What matters morally is that we do all that we can to make up for our misdeeds. Execution makes it impossible to set upon such an endeavor. As the U.S. Supreme Court emphasized decades ago, execution is “unique in its severity and irrevocability.”
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Benjamin S. Yost
Benjamin S. Yost is Professor of Philosophy, Adjunct at Cornell University. His work focuses on the philosophy of punishment, in particular the moral questions surrounding the death penalty and the punishment of the disadvantaged. He also has a lively interest in Kant’s practical philosophy. He has published Against Capital Punishment (Oxford 2019) and coedited The Movement for Black Lives: Philosophical Perspectives (Oxford 2021).