The Death Penalty is so 2006

I’m inclined to agree with my friend who said that Panetti was "playing up his crazy" in order to avoid execution, but overall I like the death penalty discussions going on in the SCOTUS.

Here’s an idea I didn’t invent: Americans really love the idea of pulling yourself up by your bootstraps, or conversely, singlehandedly throwing yourself onto a hypodermic needle full of pancuronium bromide (among other things). We think: free will is more powerful than circumstance, and so any individual should pay the price for his actions. Most of the rest of the world disagrees, at least to some extent, and finds that criminals are at least partly a product of their family and societal circumstances. Scalia would rather not look around the world for guidance (see part III of his Roper dissent) but the rest of the Court seems open to the idea that people develop in some other setting than a vacuum, so maybe it's not really fair to kill them back.

Earlier this year, the SCOTUS said in Smith, Abdul-Kabir and Brewer: "mitigating factors are super important, punks. Stop executing everyone in Texas." Even a story of a bad childhood is significant enough that it could overturn a death sentence and needs to be considered by the jury. Now, in Panetti, SCOTUS says: "people might go crazy awaiting their execution, so you shouldn’t kill them." (There’s a little more procedure involved, but I like this part the best.)

How many people whose crimes qualify them for the death penalty aren’t 1) mentally ill; 2) crazy after awaiting their execution; 3) victims of abuse or an otherwise "bad childhood"; or 4) have some factor in their lives/brains that reduces their culpability in part? Intuitively enough, it turns out to be somewhere around none of them.

To be fair, there are probably a handful of Scott Petersons/Chris Wiltons whose circumstances we don’t find all that sympathetic. But let’s say that 94% of people eligible for the death penalty were severely physically and sexually abused. At what point does the cost of maintaining the death penalty infrastructure just to punish a handful of the otherwise perfectly normal murderers become absurd?