One of the few hopeful outcomes of the 2021 legislative session so far is the progress of AB395, proposed legislation that would place Nevada among the now-majority of states that have abolished the death penalty. The U.S. has been slow to cease the sanctioned killing of its own citizens (joining the likes of Iran, Iraq, China and 52 of our other most favorite governments from around the world) but the dirty deeds are left mostly to the states. The Supreme Court in 1972 did find the death penalty to be unconstitutional, but we couldn’t quite quit our beloved practice and just four years later it was reinstated with some procedural speedbumps.
As you may come to realize, these processes, the form our system takes when deciding who is worthy of an execution, is often (always?) more important than the substance of the decision itself. As the late Justice Antonin Scalia so plainly put it in the Supreme Court’s decision to allow the execution of Troy Davis, a likely innocent man, in 2009, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” After all, juries aren’t perfect and thus are bound to get it wrong sometimes, but does that really justify bogging down the courts with appeals from potentially innocent people desperately trying to save their own lives? Come on now. What’s a few people wrongfully put to death for the sake of maintaining a system that works so well for all “the rest” of us. Worth the sacrifice, if we listened to Scalia. And we did. And we do.
So what is it that the system is preserving? Punishment serves several purposes, in theory. Iit can be a powerful deterrent to prevent others from committing an unwanted act; it can make a person whole after a violation is committed against them; or it can be, and often is, sought as a form of revenge. Since capital punishment here is pursued only for the most serious crimes (first degree murder, for example) restitution is entirely impossible. No amount or shape of punishment will return a murdered loved one or put a family back together after such a loss. As a deterrent, the death penalty has similarly proven ineffective, with little to no evidence that the threat of the electric chair, lethal injection or firing squad has any positive influence on the homicide rate. What we are left with, then, to address these most heinous of crimes, the worst of our collective nightmares, is retribution; an eye for an eye, your pain for mine.
The desire for revenge, of course, is a basic human response to harm. None of us are immune to its allure when we are wronged, the sense that reciprocating the pain that we are left with will somehow balance us, set us straight. Turns out it’s also cultural, and that Americans are more likely to seek revenge when we feel that our rights have been violated, citing a need for catharsis, a return to fairness, that we feel has been compromised.
But while seeking retribution may provide an initial rush and a certain expected relief, the feeling is fleeting. Most people who pursue, or dwell on pursuing, revenge many times feel worse after they get what they wanted, left with feelings of shame and even deeper grief. It seems to me we may have an inherent aversion to causing others harm; an aversion we quickly, and naturally, forget when someone hurts us or anyone we love. But there’s a reason we don’t leave retribution up to victims and their families to seek on their own. Should we leave it up to individuals to kill those who have killed them, hurt those who have caused their scars, we’d have a nation of depressed, anxiety-ridden people, unable to move on from the worst day of their lives.
And yet we cling to the fantasy of catharsis so that, far from discouraging it, we instead outsource our individual pain. We hand our anger over to the government, to the D.A., to the judges and the juries. We make these flawed and biased people and institutions the enforcers of our vengeance so that we may remove ourselves from any moral reckoning. We delegate our conscience so that we don’t have to think in any real depth about what it means that we are so willing to kill, even as we claim that those who do so are monsters. But so long as we have a process, right?
I took part in a training last week where I heard a man describe his belief that laws, no matter how unjust, should always be followed because to do otherwise would lead to chaos, a society void of meaning. I thought it curious, at first. How can anyone advocate for blindly following laws that they recognize to be unfair? It was only upon reflection I realized that for many people, laws and the systems they uphold still give the illusion of some attainable order, which in turn creates an illusion of safety and security. If only you follow these rules, the thinking goes, nothing bad is likely to touch you.
Let’s try to sell that to the approximately 4 percent of people on death row who are likely innocent of the crimes that put them there. That statistic means that approximately 100 innocent people are currently awaiting execution in the United States, two of them potentially in Nevada. Not to mention those who were sentenced to die despite severe mental illness. (Some execution proponents will still disassociate from those numbers, claiming they are a necessary evil — an unfortunate yet unavoidable sacrifice to the gods of ‘Merica that make us so dang great.)
Thankfully, public opinion seems to be on the side of abolishment. Though AB395 may still have a way to go before we can claim victory, it does give me some hope that it has made it this far. Nevada, for the first time in a long time, has real shot at rejecting the immoral notion that a government has a right to kill. In doing so we would reject becoming the monsters we claim to rebuke.
Martha E. Menendez, Esq. is the Bernstein Senior Fellow at the UNLV Immigration Clinic.