Give credit where credit is due. Per the Associated Press, the Obama Department of Justice is seeking the death penalty for noted white supremacist neo-Nazi mass-murdering psychopath Dylann Roof of South Carolina. Here is Attorney General Loretta Lynch’s brief statement on the decision:
The nature of the alleged crime and the resulting harm compelled this decision.
No kidding. It has been a little over eleven months since Roof walked into a Charleston, South Carolina church, sat down to feign joining parishioners in Bible study for about an hour, and then murdered nine black churchgoers—including senior pastor and South Carolina state senator Clementa Pinckney—in cold blood. Writings that surfaced after the crime confirmed that Roof had a thoroughly putrid online footprint, featuring all of the usual neo-Nazi and overtly racist, white nationalist repugnances. Public images of Roof posing with the Confederate battle flag served as the original impetus for South Carolina’s ultimate decision to take down the flag from the state capitol grounds.
South Carolina has a concurrent state case against Roof, and Governor Nikki Haley called for state prosecutors to seek the death penalty in the immediate aftermath of the homicides. I personally find the federal hate crime laws on which Roof has been charged to be constitutionally suspect (as I find the overwhelming majority of the federal criminal code, but that’s a post for another day), but there are many, many worthier junctures at which originalists and strict constitutionalists might seek to push back against two-plus centuries’ worth of incremental distortions away from the constitutional text.
Personally, I believe in the death penalty for retributivist reasons; others can believe in its deterrent effect, though I think the academic literature is murky on this and I don’t find it as morally compelling as the retributivist rationale. Dennis Prager has done a particularly nice job, over the years, in offering reasons to support the ultimate punishment for society’s worst of the worst. Similarly, on the current U.S. Supreme Court, Justices Alito and Thomas have frequently employed a tactic of describing capital cases’ underlying crimes in gruesome detail in their death penalty opinions, so as to impart an unmistakable underlying sympathy for the victim and not for the killer.
Whatever your rationale for supporting the death penalty, Dylann Roof is a canonical example of its just application. And even if you morally oppose capital punishment with every fiber of your being, it must be conceded that, given its existence, it is cases like Roof’s and Boston Marathon bomber Dzhokhar Tsarnaev’s that make for the easiest instances of its use.
For whatever it is worth, I would urge the government to stretch the Eighth Amendment—which precludes “cruel and unusual punishments”—to its outer limits in cases such as Roof’s and Tsarnaev’s. As originalists, we can look to the death penalty practices of the Founding generation as being probative, and maybe dispositive, of that Eighth Amendment original meaning. You get the idea. But if we are ever to depart from the status quo ante of using increasingly hard-to-come-by drug “cocktails” and return to the older execution days of yore, Roof would be a good place to start. Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, for his part, has opined that more executions should be by firing squad. Here is Kozinski, writing in 2014:
Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments.… But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf…
Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.
I am largely in concurrence with Judge Kozinski (who, it must be noted as an aside, had one of the all-time great moral defenses of the Second Amendment in this 2003 dissent from a Ninth Circuit refusal to rehear a case en banc…seriously, read it), and certainly other public methods might also be considered. But even if the feds do not go that route anytime soon, we should still commend the Obama Department of Justice—which has otherwise been one of the most highly politicized, overtly Leftist DOJs in U.S. history—for doing the right thing today. Credit to Loretta Lynch.