In 1820 Thomas Jefferson wrote a letter to John Holmes, a Massachusetts Congressman angling to become a Maine Senator. The letter contains a famous line for which Jefferson has often been credited with predicting the Civil War. On the matter of black slavery, he wrote: “this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the union.”
A year earlier when Congress was considering Missouri’s admission to the Union, debate hinged on whether the new state would have slavery. The eventual deal—the Missouri Compromise—called for the admission of Missouri as a slave state, balanced against the partitioning of Maine from Massachusetts as its own free state. John Holmes had supported this deal but had opposed an earlier version, written by New York Representative James Tallmadge, which would have included provisions towards Missouri eventually becoming a free state. When Jefferson wrote his letter in 1820 he was attempting to help Holmes, now seeking a Maine Senate seat, rationalize his seemingly pro-Southern opposition to the Tallmadge proposal.
In the letter Jefferson wrote of slavery: “We have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other.” This reflected Jefferson’s mistaken belief that emancipation posed such a dire physical threat to white masters that “self-preservation” could not yet allow the freeing of black slaves. In the letter to Holmes Jefferson presents what William J. Stuntz describes in The Collapse of American Criminal Justice as the “antislavery case for slavery’s expansion.” Here’s Stuntz:
As long as slaves were concentrated in a small portion of the country, white masters’ fear of emancipation’s consequences would bar all thoughts of abolition. “Justice is in one scale, and self-preservation in the other”— notice which scale Jefferson thought weightier. The only way to avoid choosing between a permanent slave population and mass slaughter of white masters, Jefferson suggested, was to permit slavery to spread out across a larger fraction of the country so that whites might everywhere outnumber the blacks whom they so feared. By this logic, the true friends of emancipation had voted with John Holmes, not with James Tallmadge.
Backed into a political corner, Jefferson presented an argument for the preservation of an unjust system on the grounds that only its spread could assuage the fears of those opposing its abolition.
That passage from Stuntz was brought to mind by Ross Douthat’s NYT column over the weekend, in which he can be said to present the “anti-death penalty case for the death penalty’s retention.” In the column, entitled “Justice After Troy Davis,” Douthat advances the interesting argument that those working to reform criminal justice are actually contradicting that goal by fighting to end the death penalty. His take on the Davis case is that the threat of the death penalty actually helped Davis argue for his innocence:
After all, in a world without the death penalty, Davis probably wouldn’t have been retried or exonerated. His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.
Instead, he received a level of legal assistance, media attention and activist support that few convicts can ever hope for. And his case became an example of how the very finality of the death penalty can focus the public’s attention on issues that many Americans prefer to ignore: the overzealousness of cops and prosecutors, the limits of the appeals process and the ugly conditions faced by many of the more than two million Americans currently behind bars.
What’s troubling about this argument is that even with the heightened legal assistance, media attention, and activist support that Davis received, his case still ended with an execution that Douthat’s own paper calls “unconscionable.” It’s odd to suggest that we should value a punishment for the safeguards it ensures when those safeguards do not function.
It’s also important to recognize the flip side of Douthat’s argument, which is the fact that the existence of the death penalty often leads to pleas on lesser charges that would otherwise have been contested. Again from Stuntz:
Over the course of the last generation, it has become common for prosecutors in death- penalty states to charge ordinary murder defendants with capital murder, then agree to a guilty plea with a life sentence attached. The death penalty’s role in such cases is not to execute murderers but to extract pleas, which avoids the need for the procedurally elaborate criminal trials the Bill of Rights guarantees.
So where the pro-death penalty argument holds that the existence of the death penalty brings better opportunities for the convicted to clear their names, Stuntz shows that the threat of capital punishment actually deprives far more people of the chance ever to stand trial.
It should be said that Douthat’s column also points out some of the other grave flaws with our system of criminal punishment and rightly calls for work to ensure that it becomes more just. His closing point, though, is that abolishing capital punishment “in a kind of despair over its fallibility” would send a cynical message about the possibility of justice and about the moral standards to which we should hold those who control the system. This seems to be an argument that broken systems become more difficult to repair if their damage is acknowledged in ways that could lead the public to further lose faith. We might be able to agree to dismiss this concern. After the case of Troy Davis, a failure of justice that Douthat chronicles well, there’s far less faith at stake than before.
