Symbolic Sacrifice: University Of Arkansas Law Professor Examines Capital Punishment In Terms Of Terror Management

FAYETTEVILLE, Ark. — At a time when American capital punishment has come under increased scrutiny — with Illinois Governor George Ryan’s recent moratorium on executions and several other states’ consideration of similar measures — a University of Arkansas professor examines the death penalty’s form and function and finds it grounded in the ritual of "terror management" instead of rationality.

Don Judges, professor of law, reports his findings in "Scared to Death: Capital Punishment as Authoritarian Terror Management," published in the forthcoming issue of the University of California-Davis Law Review.

To Judges, the initial question is not whether we should continue to practice capital punishment, but why we do so. He points out that, although many people assume capital punishment is about deterrence, retribution and incapacitation, actual practice suggests otherwise.

In his article, Judges turns to "terror management," a theory that explains how people cope with the fear provoked by awareness of their own mortality, and dissects the current capital punishment system to see if this could be an underlying motivation for American death penalty practices.

Because the prospect of our own demise is too awful to think about for long, we try to push thoughts of it out of mind. But, once prompted, death awareness can lurk on the edges of consciousness and create the potential for terror. When reminded of their own mortality, people unconsciously reduce their anxiety and enhance self-esteem through symbolic efforts to protect their cultural world view.

This process shows up in behaviors and attitudes that are relevant to capital punishment - like excessiveness, arbitrariness, discrimination and dehumanization.

In examining the history of the death penalty in America, Judges looks at the number of capital cases, the number of death sentences and the number of executions performed.

"A capital punishment system motivated largely by the terror management process would look a lot like the one we now have," Judges said. Capital punishment as symbolic world-view defense would at times be arbitrary, excessive, discriminatory, and dehumanizing.

First, relatively infrequent executions and the system's tolerance for error and inadequate legal representation demonstrate a troubling degree of arbitrariness.   Second, sporadic legislative fervor for capital punishment and the imposition of capital sentences for crimes that are no more, and may be less, severe than those receiving life sentences show arbitrariness and excessiveness. 

Third, Judges argues that the racial disparities in capital sentencing reflect the discriminatory component of a terror management theory of capital punishment.

Fourth, Judges explains that capital punishment precipitates a psychological crisis for those involved by threatening their belief that they are adhering to deeply-held values. To defend against that threat, people involved in the capital punishment process will tend to degrade the condemned, rationalize their roles, and deny and diffuse responsibility for participating in the actual killing of a human being.

The deep ambivalence associated with the death penalty is also in keeping with the terror management theory, Judges said.

"The death penalty is this awful contradiction. It is punitive and authoritarian, but it threatens people’s world view of mercy and compassion. It is also a reminder of death itself," he said. This may explain why, despite legislative and public support for capital punishment, judges and juries are often unwilling to sentence people to death.

Judges also addresses the purported reasons for the use of capital punishment — deterrence, retribution and incapacitation — and finds them lacking in substance.

First, there is little evidence that capital punishment actually deters crime. Second, a system based on retribution would be concerned with fairness and accuracy, but the actual system is prone to arbitrariness and error. And a system that seeks to incapacitate potentially violent criminals through execution would selectively weed out the most dangerous offenders, but the current system is haphazard and tends to over-predict the risk of future violence.

"If we’re not really serving those goals, then what are we doing?" Judges asks

Judges' article concludes that American capital punishment more closely resembles ritual human sacrifice to ward off fear of death awareness than it does a practical response to crime. 

"If that is the real reason we are killing all of these people, over 600 since executions resumed in 1977, then the policy and legal questions about whether to continue the practice assume a very different posture," Judges said. "For one thing, viewed this way, it seems doubtful that the institution  meets the basic constitutional requirement of rationality.

"How could any constitution worth having possibly permit the deliberate state-sponsored ritual sacrifice of an almost random selection of human beings, even from among some of the worst of us?"