The prisoner's dilemma

Stories about capital punishment in the US always make the news here in France and this week’s was no different. There seemed to be a little more emphasis in the European media I read (The Guardian and Le Monde) on the international pressure aspect than in my US papers of choice (New York Times and Washington Post). The nuance was not lost on Justice Scalia, either, who is apparently concerned that foreigners are telling Americans how to run their judicial system. How I would have liked to say to him, “No, only you, the nine Supreme Court justices, can interpret the US constitution, but to do so, you are allowed, even encouraged, to consult experts from around the world.” Indeed the United States would not have a constitution as strong as it is had its framers not taken ideas from many of the European philosophers of their day. There must be some valid “foreign” ideas, that at least deserve a place in the debate, no?

After more than 45 years on the planet, I’m still not sure where I stand on the issue of capital punishment in general. I used to think I was in favor of it for its value as a deterrent, for the certainty that an executed murderer will not be out on parole someday and back in circulation and for the money it saves not having to keep lifers fed, clothed and housed for the rest of their days. Now, with mounting demands for proper medical care for prisoners, we have the increasing prospect of older inmates on life sentences being allowed to live out their final years in relative comfort. This bothers me. Finally, terrorists never demand the release of dead prisoners, nor do dead terrorists ever direct operations from their prison cells.

On the other side there's the sanctity-of-life argument, but if the number of people who are pro-life/pro-capital punishment or pro-choice/anti-capital punishment is anything to go by, this argument would seem to be honored more in the breach than in the observance. (Aside: I recognize this is unfair; there are plenty of pro-life/anti-capital punishment folks, and pro-life/pro-capital punishment advocates who point out that the fetus hasn't done anything wrong.) Anyway, this isn’t what bothers me most, it’s the finality of capital punishment. How many mistakes do we make, which be definition, we can’t undo? I’m not sure any number is acceptable to me. I don’t know what the latest wisdom is on the deterrent argument, but the cost argument isn’t so clear anymore. So much money is spent appealing death row cases that in the end I’m not sure which solution costs society more, life in prison or capital punishment.

When the French media report about capital punishment, the US is often presented as one of the last bastions of a barbaric practice. They love it even more when the case reveals some contradiction or bizarre consequence of the sentence. That’s why this week’s news reminded me of an article I saw in Le Monde a couple of weeks ago about the case that led to the Supreme Court’s previous 2002 decision outlawing capital punishment for the mentally retarded. The article was entitled, “Le condamné Daryl R. Atkins a-t-il acquis le QI suffisant pour être exécuté ?” (Is the IQ of death row inmate Darrel R. Atkins now high enough for him to be executed?) Here’s my translation of the first paragraph:

Will Daryl Renard Atkins return to Death Row? A Supreme Court decision removed him from it in June 2002. He escaped the state of Virginia’s lethal injection because he showed slight mental retardation. But now, the prosecution claims that the efforts he has made to defend himself over the years have stimulated his intelligence to the point of making him once again eligible for capital punishment.

According to the article, Atkins’ IQ was measured at 59 at the time of his trial in 1998. In 2002, the Supreme Court ruled on his case, finding, 6-3, that executing someone with low intelligence would constitute “cruel and unusual punishment”. From 1998 onwards, however, Atkins had frequent contact with his lawyers and invested a lot of effort in his defense. A psychologist who studied the case said that he received more intellectual stimulation during that time than in all his adolescent years. When he was retested recently, his IQ was 76, higher than Virginia's threshold of 70, and the state plans to pursue the case. A classic Catch-22? A new twist on the “prisoner’s dilemma”? If the prisoner’s intelligence is below a certain threshold, he cannot be executed, but if he works hard to prove that his intelligence is below the threshold, his intelligence will rise and he’ll be eligible for the death penalty again.

I became aware of this latest development in the Atkins case not by reading the Le Monde article (which I subsequently found was based on a New York Times article), but by hearing a much more succinct version on the radio. My fear is that the average French radio listener came away from the news item with a confirmation of the notion he may already have, namely, “Ils sont fous, ces Américains !” (Those Americans are just crazy!)