Capital Crime and Punishment: An Analysis of Dostoyevksy, Collective Guilt, and Executions in America
Capital Crime and Punishment: An Analysis of Dostoyevksy, Collective Guilt, and Executions in America
Alex B. Johnson*
Table of Contents
II. Literature Helps the Law
III. Dostoyevsky’s Philosophy of Collective Guilt in Literature
A. Father Zossima’s Answer to the Grand Inquisitor in the Brothers Karamozov
B. A Killer’s Guilt, Suffering, and Redemption in Crime and Punishment
IV. The Death Penalty in America
A. Arbitrary and Capricious: Searching for a Unifying Principle
B. Retributive Justice
C. Deterrence Debunked
D. 156 Exonerations
E. Geographical Disparity and Prosecutorial Discretion
F. Capital Punishment Replaced Lynching and the Baldus Study
G. “Death-Qualified” Jury, Narratives, and Victim-Impact Evidence
H. recently-botched executions
I. Dostoyevsky Applied, Cruel and Unusual
Fyodor Dostoyevsky described in a letter to his brother how he and twenty other men were accused of conspiracy, condemned to death, and bound to a stake to await public execution. Only after his final thoughts of his brother’s family, and the chance at kissing the two condemned men closest to him that were tied down to the same stake, did the executioner snap a sword over his head, announcing the Czar had commuted their sentences. One of the prisoners went insane from the experience, and Dostoyevsky, twenty-eight-years-old, went to Siberia to serve four years at hard labor and six more in a Siberian regiment. While incarcerated, he learned to see goodness in his fellow convicts. After his ten-year sentence, Dostoyevsky returned to western Russia believing in the doctrine of “salvation through suffering” and wrote some of the greatest novels in all of world literature.
This Essay considers Dostoyevsky’s story of the murderer, Raskolnikov, in Crime and Punishment, and the “Grand Inquisitor” chapters of The Brothers Karamozov, to show that literature and the law, while separate discourses, are not so distinct, particularly with regard to humanity, morality, and justice. Dostoyevsky’s philosophical concepts of collective guilt and redemption are applicable to the unique set of jurisprudential questions that capital punishment raises, particularly given its irrevocable finality and the certain reality of human error and arbitrary application. Analysis of these stories, as applied to the “evolving standards of decency” in United States death penalty jurisprudence, reveals that society has a better way to deliver justice to those convicted of capital crimes.
The U.S. should accept Dostoyevsky’s philosophy of collective guilt, shown in the sufferings and repentances of his fictional characters, and make a capital sentence life without parole. This change would clear society’s conscience, reserve the retributive value of the ultimate punishment for those who deserve a long-term death sentence, and preserve the potential for exoneration for those who are wrongfully convicted. By accepting collective guilt and stopping state killings, justice will be served, and everyone may repent.
II. Literature Helps the Law
Literature is the art of storytelling that offers, regardless of the era in time, an insight into the nature and conditions of the human experience. Law is a body of rules or customs established by government or society for its citizens to obey, or be subject to consequences, in order to organize that society. Legal formalists believe that law wishes to be its own discourse, separate and distinct from morality, interpretation, literature, and any other field of study. However, renowned U.S. Supreme Court Justice, Oliver Wendell Holmes, rejected legal formalism: “The life of the law has not been logic: it has been experience.” For Holmes and his legal realist followers, the law cannot be separated from morals, politics, public policy, and the prejudices of judges and juries. In the words of moralist Robin West, the humanities (and literature in particular) may be necessary to reclaim meaning and moral purpose in the law. West’s humanistic approach to legal criticism is based in morality and human nature, subjects common to both literature and law.
In the preface to Richard Posner’s Law & Literature, the prolific appellate judge charts the “law and literature movement” as an interdisciplinary field of legal scholarship with significant and accelerating interest in American and European law schools. Judge Posner analyzes the “overlapping bodies of thought” and argues that lawyers “can learn a great deal of jurisprudence” from “well-chosen” works of literature. Judge Posner cites Philip Kissam’s article about the potential of studying law in literature to enhance one’s understanding and interpretation of the law, challenge a reader’s assumptions, and expand one’s imagination through an enhanced moral sensitivity. Similarly, according to West, narrative stories are indispensable to the law because “[l]awyers are in the business of telling stories and arguing about rights.” Judge Posner believes lawyers with a literary sensibility can learn to be better storytellers from reading fiction. In discussing legal narratology, he celebrates the late Benjamin Cardozo’s opinions and claims that the greatest judges have a literary sensibility. If for no other reason, reading literature is important to the legal field because lawyers argue in the narrative form.
Dostoyevsky presents his philosophy of collective guilt most completely in the “Grand Inquisitor” chapters of his final book, The Brothers Karamozov, finished in 1880, only two months before he died. An episode in “the most magnificent novel ever written,” Sigmund Freud believed it to be “one of the peaks in the literature of the world.” Although a full treatment of The Brothers Karamozov lies beyond the scope of this review, a quick look at Father Zossima’s story helps frame the view through which a reader may consider Crime and Punishment, published fourteen years earlier. 
Dostoyevsky uses Father Zossima’s character, a Russian monk, to show that the most viable way for humans to co-exist is for one to reject pride and to accept imperfection and the reality of suffering. Each individual has the capability for self-sacrifice and selfless love, but pride creates a false need for self-affirmation and distorts one’s perception of truth:
There is only one means of salvation, then: take yourself and make yourself responsible for all men’s sins; that is the truth, you know, friends, for as soon as you sincerely make yourself responsible for everything and for all men, you will see at once that it is really so, and that you are to blame for everyone and for all things. But throwing your own indolence and impotence on others, you will end by sharing the pride of Satan and murmuring against God.
Truth, to Father Zossima and Dostoyevsky, is found in the “grand unity of men,” that divine love is inside everyone and everything in creation. Understanding individuals are simultaneously capable of great love and great evil is central to one’s ability to accept suffering and achieve inner peace.
Therefore, anyone’s crime is everyone’s crime, and the legal power to condemn is limited:
Remember particularly that you cannot be a judge of anyone. For no one can judge a criminal, until he recognizes that he is just such a criminal as the man standing before him, and that he perhaps is more than all men to blame for that crime. When he understands that, he will be able to be a judge . . . . And even if the law itself makes you his judge, act in the same spirit so far as possible, for he will go away and condemn himself more bitterly than you have done. If . . . he goes away untouched . . . . It shows his time has not yet come, but it will come in due course.
Finally, Father Zossima advises one to “shun” the “desire for vengeance on the evildoers.” Instead, one must “seek suffering for yourself, as though you were guilty of that wrong.” He admonishes mankind: “Know the measure; know the times; study that.”
Crime and Punishment is the story of a young and impoverished former student, Rodion Raskolnikov, who murders an old pawnbroker and her sister. In a note to his publisher, Dostoyevsky explained that the novel would be a psychological account of a crime committed in pursuit of “strange ‘incomplete’ ideas” and would consider the notion that a “legal punishment inflicted for a crime intimidates a criminal infinitely less than lawmakers think, partly because he himself morally demands it.” It is the story of an individual learning that, despite the human capacity for evil, humankind is generally good. Dostoyevsky’s writing begins exercising the idea of collective guilt.
The crime in Crime and Punishment is as brutal and heinous as any imaginable. Raskolnikov waits in the victim’s apartment until she arrives striking the pawnbroker three times with the blunt side of an axe. While he is gathering valuables to steal, the pawnbroker’s sister, Lizaveta, enters the horror scene. The sight of her dead sister stupefies her, and she never screams. She is scared stiff as Raskolnikov charges and splits her defenseless head open with the sharp edge of the axe. Careful to avoid tracking blood or leaving behind any evidence that would connect him to the crime, he flees.
Free from indictment and suspicion, the rest of the story is about the guilt tormenting Raskolnikov. Dostoyevsky draws the reader inside the murderer’s mind and shows his confused and disconnected, yet grotesquely understandable, motives. Raskolnikov lives in a delirious fit of sickliness, indecision, self-loathing, and conflicting thoughts, ranging from delusions of grandeur to contemplating suicide. In the context of quitting school, he wants to prove he is capable of greatness and to deliver his mother and sister from poverty. He compares himself to Napoleon and other “great men” whose crimes similarly broke extant laws in order to lead society toward a better future. Raskolnikov rationalizes the double-murder with these “strange” and “incomplete” ideas.
He struggles to reconcile pre-planned fantasies with the post-crime realities. In the first interrogation scene with the primary antagonist, detective Porfiry Petrovitch, he explains:
I maintain [that] legislators and leaders of men, such as Lycurgus, Solon, Mahomet, Napoleon, and so on, were all without exception criminals, from the very fact that, making a new law, they transgressed the ancient one, handed down from their ancestors and held sacred by the people, and they did not stop short at bloodshed either, if that bloodshed—often of innocent persons fighting bravely in defence of ancient law—were of use to their cause. It’s remarkable, in fact, that the majority, indeed of these benefactors and leaders of humanity were guilty of terrible carnage. In short, I maintain that all great men or even men a little out of the common . . . must from their very nature be criminals . . . .”
The soliloquy disorients him, sending him into a raving frenzy; conflicting thoughts ricochet against his skull, trapped inside his brain for only the reader to see. Dostoyevsky portrays Raskolnikov’s dual, multifarious nature in the same stream of consciousness. From one side:
One sudden irrelevant idea almost made him laugh. Napoleon, the pyramids, Waterloo, and a wretched skinny old woman, a pawnbroker with a red trunk under her bed—it’s a nice hash for Porfiry Petrovitch to digest! How can they digest it! It’s too inartistic. “A Napoleon creep under an old woman’s bed! Ugh, how loathsome!” . . . . “The old woman is of no consequence,” he thought, hotly and incoherently. “The old woman was a mistake perhaps, but she is not what matters! The old woman was only an illness . . . . I didn’t kill a human being, but a principle! I killed the principle, but I didn’t overstep, I stopped on this side. . . . I was only capable of killing. And it seems I wasn’t even capable of that . . . Principle?
To another side:
“I only live once, I too want. . . . Ech. I am an aesthetic louse and nothing more,” he added suddenly, laughing like a madman . . . . “And what shows that I am utterly a louse,” he added, grinding his teeth, “is that I am perhaps viler and more loathsome than the louse I killed, and I felt beforehand that I should tell myself so after killing her. Can anything be compared with the horror of that! The vulgarity! The abjectness! I understand the ‘prophet’ with his sabre, on his steed: Allah commands and ‘trembling’ creation must obey! The ‘prophet’ is right, he is right when he sets a battery across the street and blows up the innocent and the guilty without deigning to explain! It’s for you to obey, trembling creation, and not to have desires, for that’s not for you! . . . I shall never, never forgive the old woman!
Raskolnikov’s eyes fixate on the ceiling and his lips quiver. Dizzyingly, the killer’s mind races from his loved ones, to the ones he murdered, from anger to remorse, then back again to loved ones:
“Mother, sister—how I loved them! Why do I hate them now? Yes, I hate them, I feel a physical hatred for them . . . . I went up to my mother and kissed her, I remember. . . . To embrace her and think if she only knew . . . shall I tell her then? That’s just what I might do. . . . H’m. She must be the same as I am,” he added, straining himself to think, as it were struggling with delirium. “Ah, how I hate the old woman now! I feel I should kill her again if she came to life! Poor Lizaveta! Why did she come in? . . . It’s strange though, why is it I scarcely ever think of her, as though I hadn’t killed her! Lizaveta! Sonia! Poor gentle things, with gentle eyes. . . . Dear women! Why don’t they weep? Why don’t they moan? They give up everything . . . their eyes are soft and gentle. . . . Sonia, Sonia! Gentle Sonia!”
He loses consciousness. Guilt shot poisonous thoughts into his mind and down through his body, causing delirium and a physical inability to cope. Before fainting, the thought of Sonia calms him—Sonia is a prostitute, and the great hope in the novel.
Raskolnikov meets Sonia through her father, Marmeladov, a drunken yet sincere man, who befriends him at a pub. Marmeladov admits he is “a pig” and “a beast,” that he stole his wife’s belongings and sold them for booze and allowed Sonia to prostitute herself to feed the family. Marmeladov is ashamed of his vice and suffers for it, but does not want pity. He is honest in his suffering. His honesty makes Raskolnikov question, fleetingly, if man is not generally a scoundrel.
Later, Raskolnikov finds Marmeladov dying in the street after being run over by a chariot. Raskolnikov carries his body home, lies him down, and notices that he is covered in Mermeladov’s blood—a flawed but honest man’s blood—which contrasts with the blood of the pawnbroker, who he considers to be a bad person. Being covered in Marmeladov’s blood sends an immediate surge of life and strength through his body: “This sensation might be compared to that of a man condemned to death who has suddenly been pardoned.” This feeling is the first of three times at which Raskolnikov feels alive in God’s redemptive power—all three are rooted in honesty, suffering, and Sonia.
The next time Raskolnikov feels Sonia’s redemptive power—that “same feeling surged into his heart, and again for an instant softened it”—is when he confesses to Sonia in her room. Sonia aches over what he confesses, but promises to stay with him. He vacillates between wondering whether Napoleon would have killed a louse like him, and despairing that he is actually the louse. He asks Sonia what he should do, and she advises:
Go at once, this very minute, stand at the cross-roads, bow down, first kiss the earth which you have defiled and then bow down to all the world and say to all men aloud, ‘I am a murderer!’ Then God will send you life again. . . . Suffer and expiate your sin by it, that’s what you must do.
His guilt demanded retribution from him in some form.
He considers his three options: drown himself, sink into depravity and “get used to it,” or confess and suffer in Siberia. Earlier in the novel, he would have chosen the “cruel” option: He originally considered these three options for Sonia to address her lifestyle. He could not understand the “exceptionalness” of her ability to have both “shame and degradation” existing within her alongside “the other, opposite, holy feelings.” With the Bible that Lizaveta had given her, Sonia read him the story of Jesus raising Lazarus from the dead after four days.
Raskolnikov ultimately chooses to accept responsibility and suffer, following Sonia’s and Marmeladov’s example. He would submit that he is not a great man, but only a man who murdered and must suffer the legal consequences. After a year in prison, anger and anxiety persisted. He understood that his punishment was for breaking the law, but continued to deflect blame by distinguishing himself from the Napoleons of the world by the fact that “those men succeeded and so they were right.” He wished for repentance, for a reason to live beyond mere existence, until it happened. That hopeful feeling he had felt before, through Sonia, seized him and stayed with him. Dostoyevsky ends the novel with Raskolnikov holding the New Testament, the one Lizaveta had given to Sonia, and thinking of Lazarus—an opening scene of a new story, one of the “gradual renewal of man, the story of his gradual regeneration.”
The first recorded execution in America was in 1608 in the Virginia colony, and there have been more than 15,000 executions in its 400-year history. The American criminal justice system is one of the few remaining developed countries to execute convicted criminals. The Supreme Court instituted a de facto moratorium on its use in 1972 with Furman v. Georgia, its longest opinion in its history. The court in that case held that the application of the death penalty was too arbitrary to pass the Eighth Amendment’s prohibition on cruel and unusual punishment. Justice Brennan laid out the four basic measurements of cruel and unusual punishment, if conduct is: (1) degrading to human dignity, (2) an arbitrary imposition, (3) acceptable to contemporary society, and (4) not excessive. Although each Justice authored his own separate opinion in the 5–4 decision, all agreed on the notification of “evolving standards of human decency” over time.
The holding, as later interpreted by the court, was that a state’s statute cannot create a “substantial risk that [capital punishment] would be inflicted in an arbitrary and capricious manner.” To satisfy this standard, the court recommended that statute sufficiently narrow who is eligible to receive a death sentence and the implementation of bifurcated trial phases. Furman mandated guided discretion for the decision maker to ensure there is no substantial risk of arbitrary or capricious imposition of the death penalty. The Supreme Court reinstated the death penalty in 1976 in Gregg v. Georgia, and it continues to address the arbitrary and capricious manner with which the government executes capital prisoners. Four decades of judicial review have “produced results not altogether satisfactory,” and the Court “is still in search of a unifying principle.”
Today, all states with capital punishment require the jury to find an aggravating circumstance to unlock the availability of a death sentence; however, the statutory lists of aggravating circumstances and formulas for weighing aggravating and mitigating factors vary from state to state. The class of death-eligible criminals is now limited to those mentally competent adults who are convicted of first-degree murder and the jury finds at least one aggravating factor. Only the federal government reserves capital punishment for those convicted of non-homicidal crimes, including acts of terror, treason, and major drug trafficking. However, the federal government has only executed three prisoners since reinstating the federal death penalty in 1988. The Supreme Court has found it unconstitutional to execute the insane, juveniles, criminals with a mental disability, and non-homicidal rapists.
Retribution in criminal law is “[p]unishment imposed as repayment or revenge for the offense committed; requital,” and “[s]omething justly deserved; repayment; reward.” Vengeance is the origin of modern criminal law in western civilization. According to Justice Holmes, the blood feud created the need for an alternative to violent retaliation. To prevent violent escalation, the lex talionis—the law of retaliation—of the Old Testament limits violent retaliation to fit the severity of the crime: “Show no pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”
Justice Holmes called fitting a crime to its proportional punishment “vengeance in disguise.” Yet he believed that “[i]f there is any general ground for punishment, it must apply to one case as much as to the other.” Unfortunately, there is no steady ground to support the uneven weight of capital punishment cases. For example, an official member of the Georgia Board of Pardons said it would be impossible to distinguish inmates punished by life in prison from those punished by death, if given only the facts of the crime. More broadly, less than 1% of convicted murderers in death penalty states are sentenced to death.
In the New Testament, however, Jesus Christ repudiates the lex talionis with the advice to “turn to them the other cheek also.” Because the urge to seek revenge is natural in human beings, U.S. law allows victims’ families to turn the other cheek with reassurance that the law will achieve just revenge. Nevertheless, revenge culture persists in pockets of the U.S. A sense of restoration is what former prosecutor and legal fiction writer, Scott Turow believes is “what we want most from punishment.” Father Zossima’s belief that all men are capable of love may lead one to question then whether society is in fact made whole again after an execution of even the worst murderer.
Long before empirical studies proved it, Justice Holmes believed that deterrence did not work. He wrote that “a threat of death at some future time can never be a sufficiently powerful motive to make a man choose death now in order to avoid the threat.” The average time inmates spent on death row before being executed in 2012 was 190 months—more than fifteen years.
The theory of deterrence was the main utilitarian argument for capital punishment before hundreds of empirical studies proved it does not deter crime. One study, for example, found the murder rates in death penalty states over a twenty-year period to be 48% to 101% higher than the murder rates in non-death penalty states. Further, empirical research found a “brutalization effect” in New York, concluding that on average over a fifty-seven-year period, two more homicides occurred during the two months following an execution. In 2004, subsequent to that study, New York’s legislature ended capital punishment and its murder rate has declined.
Citing society’s “evolving standards of decency,” the Court continues to narrow the category of crimes and offenders eligible for capital punishment, making executions exceedingly rare after a peak in 1999. Since 1976, there have been 8,124 death sentences and 1,436 executions. It costs taxpayers hundreds of thousands of dollars for each death row prisoner to exhaust his appeals, exponentially more than prisoners sentenced to life in prison. The system is right to exercise restraint because, alarmingly, there have been 156 death row exonerations since 1973.
Although 156 amounts to less than 1% of those sentenced, the possibility of another innocent person still being on death row should alarm Americans. Take, for example, the “unconditional release” of Glenn Ford on March 14, 2014; Ford was Louisiana’s tenth inmate on death row to prove his innocence and gain exoneration. There was no physical evidence tying Ford to the crime, but suspicious statements to the police and mistaken eyewitnesses tied him to the crime. Caddo Parish prosecutors convicted Ford in 1984 for burglarizing a jewelry shop and shooting the owner. After the jury sentenced him to death, he dumped the personal injury lawyers with only two years of practice and got new lawyers trained in capital case procedure. Three decades passed before the lawyers proved that forensic items of evidence used in trial were erroneous, including the reliance on misinterpreted fingerprint readings and mistaken medical examinations. Tragically, the story of Glenn Ford’s thirty years on death row is similar to that of 156 other death row inmates (and the 1,825 exonerations for lesser crimes) kept at the National Registry of Exonerations.
Many states have recently abolished the death penalty in their jurisdictions. Although the death penalty is still available in thirty-two of the fifty states and the District of Columbia, seven death penalty states have not used it in more than fifteen years and eleven death penalty states have not used it in more than five years. In effect, therefore, the death penalty is only in use in sixteen of the fifty states. In 2013, while nine states used their capital power, Texas and Florida accounted for the majority of executions.
The geographical disparity grows starker by further dividing executions by prosecutorial jurisdiction since 1976. A disproportionate 30% of all executions come out of fifteen counties, nine of which are in Texas. It comes as no surprise that Glenn Ford’s death sentence came from Caddo Parish, Louisiana, because Caddo Parish convicts more people of capital crimes than any other jurisdiction in Louisiana. Similarly, it is no surprise that Florida and Texas rank first and third, respectively, for most exonerations, because they also make the list of the top four states with the most executions in the post-Furman era. Illinois is the state with the second most exonerations, twenty, a fact that led to abolishing capital punishment in that state.
Prosecutorial leverage is something often decried as too arbitrary. Defendants can avoid gambling with a jury trial to avoid the death penalty by pleading guilty to a lesser charge and receiving life without parole. The Sixth Amendment guarantees a trial to the criminally accused, but trial rates have declined sharply since the Civil War ended, and today only 3% of criminal cases go to trial. Federal Judge Jed Rakoff calls it “an extinction of jury trials” and the Sixth Amendment “a mirage.” Criminologists estimate a range of 2% to 8% of inmates are innocent of the 2.2 million currently incarcerated. Taking a more conservative estimate at 1%, that would mean 20,000 people currently serving jail time are innocent.
Lynchings were a common form of retributive justice until the court system claimed a legal monopoly on executions in the 1920s. Of the 4,742 total documented lynchings from 1882 to 1968, 3,445 were black Americans. In the 1920s and 1930s, law enforcement and the judiciary began substituting rushed trials and quick executions to stop lynch-mob killings. The law effectively replaced violent mob-rule retaliation to end the revenge cycle and calm vengeful communities. Lynchings began to decline in the 1900s and fell dramatically in the 1920s, from 115 in 1900 to 21 in 1930. After 1935, lynchings would never rise above single digits. Correspondingly, state executions rose to the highest levels in U.S. history from 1900 to 1972.
Civil rights groups have referred to capital punishment in the South as “legal lynchings.” The Supreme Court explicitly held that race is an illegitimate consideration in capital sentencing in Zant v. Stevens, but the dissenting opinion in McCleskey v. Kemp comprehensively explains the “race consideration” in discussing the Baldus study. Before outlining the Baldus study findings, Justice Brennan rattles through the constitutional protections that should prevent such disparities. To paraphrase the Baldus study, capital cases are plagued with terrible race and gender disparities. Specifically:
The capital sentencing rate for all white-victim cases was almost 11 times greater than the rate for black-victim cases. Furthermore, blacks who kill whites are sentenced to death at nearly 22% the rate of blacks who kill blacks and more than 7 times the rate of whites who kill blacks. In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims . . . [and] only 9.2% of Georgia homicides involved black defendants and white victims, while 60.7% involved black victims.
Justice Brennen concludes with a narrative of the U.S.’s historical legacy of racism, lamenting how the legal system has not yet overcome “the burden of this history.” For the majority to ignore past centuries, spanning from the Constitution to Dred Scott v. Sandford to Plessy v. Ferguson, would be to live an “illusion.”
The illusion persists in capital punishment today. Despite white inmates on death row being a slight majority overall since 1976, the vast majority of victims—76%—have been white. Currently whites make up 43% of all death row inmates. More generally, the arrest rates show a “staggering disparity” along racial lines. In the context of the social unrest following a white police officer shooting and killing an unarmed black teenage boy, a USA Today review found that black people are more likely to be arrested in almost every city for almost every crime.
Capital jurors must be “death-qualified” during the voir dire phase of the trial, meaning they must be willing to impose a death sentence. A death-qualified jury is more likely to find guilt, and impose a death penalty, but that does not necessarily violate the Due Process impartiality requirement of the Fourteenth Amendment. Because lawyers are in the business of telling stories, each side wants a jury to be receptive of their narratives and many attorneys believe cases are won and lost at voir dire.
After a defendant is convicted, prosecutors provide the jury a “quick glimpse of the life” taken by the offender in a type of testimony called victim impact evidence (VIE). Prosecutors attempt to dehumanize the offender by telling a story that evokes anger at the offender and empathy for the victim and the victim’s family. Conversely, for defense lawyers, the humanizing mitigation story begins long before the crime to evoke sympathy for the factual circumstances that might have allowed him to commit the crime. Empirical research in cognitive sciences, neuroscience, social intuition, and jury experiments show that emotions and decision-making are inseparable, corroborating the emotional response to VIE. Jurors who see VIE are significantly more likely to feel empathy and sympathy for the victim and the victim’s family, to believe that the family is coping poorly with the loss, to feel hostile and angry with the defendant, and to impose a sentence of death.
Emotions elicited by evidence affect both the decision maker’s appraisal of the evidence, and the process of deliberation. For example, anger is a natural human emotion that produces similar effects as disgust and happiness: greater sense of certainty, diminished ability to process information, and diminished motivation to seek out other evidence. The effect unique to the combination of anger and disgust, however, is the desire to punish. Therefore, because the circumstances of a capital trial are such that a life has already been taken, the emotional element is necessary for the defense to propose a mitigation story based on shared responsibility for violent crime. This imbalance is re-emphasized by whatever racial, cultural, and societal preconceptions or prejudices jurors may bring to the trial from their past experiences.
The method of execution continues to change in America. As argued by Michel Foucoult, executions have evolved from public spectacles of punishing the body, to hidden punishments of the soul. However, the view on the lethal injection’s painlessness may be changing. The European pharmaceutical company that manufactured the drugs used in lethal injection executions discontinued their manufacture in response to stockholder demand and claims that the sale of drugs intended to end life was contrary to the Hippocratic Oath.
Using Justice Brennan’s four corners to measure whether a punishment is cruel and unusual, the death penalty must be considered cruel and unusual. In Furman, the Court laid out four basic measurements of cruel and unusual punishment, whether it is: (1) degrading to human dignity, (2) an arbitrary imposition, (3) acceptable to contemporary society, and (4) not excessive.
First, regarding the idea of human dignity, Dostoyevsky believed that all humans carry within themselves “the very heart of the universal.” Just as Raskolnikov discovers, humans are not all scoundrels even though their actions may lead one to believe otherwise. The murders committed by those rightfully convicted and sentenced to death row were mostly, no doubt, heinous destructions of the victim’s dignity as a person. But to follow Father Zossima’s path to salvation—not only personal, but societal salvation—one must accept that even the wicked man is capable of goodness. Therefore, killing him, he who has murdered, would only continue a cycle of slashing away at the unity of man.
Second, the arbitrary and capricious application of capital punishment in the U.S. is undeniable when considering the totality of the circumstances. A map of where most executions take place shows arbitrariness. The prosecutor’s discretion over choosing the sentence and control of evidence shows arbitrariness. The death-qualified jury shows a potential for arbitrariness. The reality that emotions elicited by evidence on one’s ability to process information shows potential arbitrariness. The socio-economic and political history of the U.S., systemic societal inequalities, and lingering personal prejudices all show potential for arbitrary application of the death penalty.
While none of these guarantee an arbitrary application in all capital cases, they raise a substantial risk of arbitrary application sufficient to cause pause. When the object is humanity and the subject is irrevocable death, the measure must be reliable and fair. Unfortunately, these factors lead one to reasonably conclude that the arbitrary and capricious application of capital punishment is unacceptable in modern America.
Third, the view of contemporary society has been trending against executions for half a century. Since the carnage of World War II, and the writings of Nobel Laureates Albert Camus and Martin Luther King, Jr. in the 1950s and 1960s, more than “two-thirds of the world’s nations [have become] abolitionist in law or in practice.” Beyond U.S. borders there is a general international consensus against state executions. In 2012, the United Nations General Assembly adopted its “fourth resolution calling for a moratorium” on the death penalty. Article 3 of the Universal Declaration of Human Rights proclaims that every person has the right to life, which cannot be deprived as a punishment for a criminal offense. Article 6(1) of the International Covenant on Civil and Political Rights declares that, “No one shall be arbitrarily deprived of his life.” The American Convention on Human Rights (“American Convention”) prevents states that have abolished capital punishment from reinstating it. The Supreme Court accepts the same principle—that society progresses forward and its standards of decency may not devolve. However, the U.S. remains on the list of countries that have used capital punishment in the last ten years: Afghanistan, Bangladesh, Botswana, China, India, Indonesia, Iran, Iraq, Japan, Kuwait, Malaysia, Nigeria, North Korea, Palestinian Authority, Saudi Arabia, Somalia, South Sudan, Sudan, Taiwan, the U.S., Vietnam, and Yemen.
Polling data shows that support for the death penalty has hovered around 50% in recent history with swells at certain points in modern history. For example, President Richard Nixon’s campaign promise to appoint “law and order” justices to the Supreme Court and subsequent media coverage following the Furman moratorium, resulted in a 7% spike in public support for the death penalty and an increase in issuing capital sentences in capital states. However, a recent poll by Public Policy Polling found that 58% of Americans oppose the death penalty, at least for people with mental illness, while 28% are in favor of it. This jump in opposition could be a result of the heightened media attention given to several botched executions by lethal injection.
Finally, the excessive nature of the death penalty is the most difficult factor to refute in a system built on retributive justice, because the Supreme Court has mostly realigned its application back to the life-for-life limits of lex talionis. That said, execution is obviously excessive for the wrongfully-convicted death row inmates who await understaffed nonprofit organizations, like the Innocence Project or law students at the National Registry of Exonerations, to prove their innocence. Yet, in the arbitrariness vein, the fact that many crimes committed by death row prisoners are remarkably similar to crimes committed by prisoners serving life without parole, indicates at least an unfair delivery of the most severe punishment.
Further, Father Zossima advised judges that criminals will find their guilt in due time. Dostoyevsky seemed to be advocating this same notion when he explained to his publisher what the central idea was for Crime and Punishment. Regardless of the legal punishment, morality demands punishment from a criminal. After committing his gruesome double murder, Raskolnikov descends into a state of frantic worry and self-loathing. He is sick in his body and mind. If some prisoners on death row have not found remorse by their execution date, perhaps they need more time for their truer punishment, that which morality demands: the mental suffering that accompanies an acceptance of guilt. Any execution before such acceptance would be excessive in its premature deliverance. Finally, to execute those who are actively repenting would be excessive because, through acceptance of guilt and suffering, the person is morally rehabilitating and nurturing that universal human goodness inside every living person.
Dostoyevsky writes in the preface to The Brothers Karamozov that, “a person, I dare say, carries within himself the very heart of the universal, and the rest of the men of his epoch have . . . been torn from it, as if by a gust of wind.” Because Americans live in a democracy with a constitutional right to free speech of this modern epoch, their complacency in allowing arbitrary state executions to continue leaves them in danger of being torn from the universal promise of salvation. The death penalty makes society complicit in the wrongful killing of innocent people, and excessive punishments for guilty murderers who are arbitrarily assigned the death penalty. As for those guilty murderers who may indeed deserve death under retributive justice principles, the death penalty prevents them from finding their guilt in due time and, therefore, is not necessarily the best form of retributive justice even in those extreme cases.
Assuming the system could be absolutely fair, and assuming there was no risk of executing another wrongfully convicted innocent person, society would still be repeating the act for which it punishes. By killing the killer, the state claims, through the act of taking life, to know where that person’s story begins and ends. It began with unconvincing mitigating circumstances, continued with aggravating factors, reached its nadir with a heinous murder of an undeserving victim, and sputtered through an average of fifty years in isolation before a state employee ends it by injecting him with chemicals to terminate his heartbeat. The state, thus, denies all collective culpability for that man’s wicked actions and kills him to balance the evils of years passed. The state accepts its inability to prevent killing without killing.
Instead, Americans should face the proven realities of the criminal justice system, accept its imperfections, and rescue themselves from further harm. People make mistakes and are prejudiced, whether consciously or unconsciously so. For fallible human beings to “ensure fair and impartial administration of justice,” society must discontinue the use of an irrevocable punishment and stop killing in the name of the law. It must extinguish the chance of killing the wrongfully convicted, because in a democracy, every citizen is to blame. Those who society judges as guilty of death-eligible crimes, “the worst of the worst,” will die in prison serving a longer-term death sentence, and retributive justice will be served.
The lingering American attraction to the death penalty cannot be separated from its western, Judeo-Christian belief in just revenge. Nor can the attraction be separated from a history of racism and classism. Just as much so, the system cannot guarantee that it will objectively separate a juror’s preconceptions and human emotions from delivering true justice. Without such a guaranty, the entire nation is guilty of killing. While it may be the appropriate ultimate punishment for certain evildoers, this paper does not negate arguments made in favor of or against the retributive value of killing a killer. It only seeks to express the finality of capital punishment and the reality of human error. To quote Dostoyevsky, “in times such as ours it would be strange to require clarity of people.” Indeed, the problematic history of capital punishment in America and the amount of exonerations show that it cannot be administered without error, whether based on race, procedure, emotion or geography. Following Dostoyevsky’s advice, this Essay is a study of the “measure” and the “times.” The measure is such that state executions are arbitrary, and the American standard of decency in the twenty-first century cannot allow the possibility of an undeserved execution. If it continues to do so, then everyone is to blame. Americans must accept the imperfections of the law and, as a society, repent.
* J.D., Tulane University Law School (2016). The author would like to thank Dr. Robert Westley for his guidance in the classics and Dean Edward Sherman for his ongoing contributions to law and literature. The author would also like to thank Tulane Law Professors Jancy Hoeffel, Robert Sloan, and Oliver Houck, and Joe DeSalvo, owner of Faulkner House Books in New Orleans, Louisiana.
 Using an algorithm of 107 different “best of” lists, The Brothers Karamozov ranks eleventh and Crime and Punishment ranks seventeenth. The Greatest Books, the greatestbooks.org (last visited June 13, 2016).
 See, e.g., Stanley Fish, The Law Wishes to Have a Formal Existence, in The Stanley Fish Reader 167–68 (H. Aram Veeser ed., 1999) (resolving the paradoxes of morality, philosophy, law, and legal studies).
 Id.; see also Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy 193 (Oxford Univ. Press, 1992) (“The most important legacy of realism therefore was its challenge to the orthodox claim that legal thought was separate and autonomous from moral and political discourse.”).
 Charles B. Guignon, Introduction to Fyodor Dostoyevsky, The Grand Inquisitor with Related Chapters from The Brother Karamazov, at ix (Charles B. Guignon ed., Constance Garnett trans., Hackett Publishing, 1993) (1880).
 See id. at xii (“I fully share the thoughts [Zossima] expresses [but] if I were to express them myself, in my own voice, I would do so in another language and in another form.” (citation omitted) (internal quotation marks omitted)).
 Id. at 75 (“Love a man even in his sin . . . . If you love everything, you will perceive the divine mystery in things . . . . For we must love not only occasionally, for a moment, but forever. Everyone can love occasionally, even the wicked can.”).
 Death Penalty Information Center: Abolitionist and Retentionist Countries, http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries?scid=30&did=140# 1976 (last visited June 14, 2016) (listing nations with and without the death penalty).
 Discrimination, Torture, and Execution: A Human Rights Analysis of the Death Penalty in California and Louisiana, Center for Constitutional Rights 8 n.18 (Oct. 9, 2013), http://ccrjustice.org/sites/default/files/assets/files/2013-Death-Penalty-Report.pdf (last modified Nov. 18, 2013) [hereinafter Center for Constitutional Rights].
 Id. at 8 n.16; see also Jurisdictions with No Recent Executions, Death Penalty Information Center, http://deathpenaltyinfo.org/jurisdictions-no-recent-executions (last visited June 15, 2016) (charting the number of executions by jurisdiction).
 The daughter of a victim of the massacre at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, has spoken out against the death penalty for Dylann Roof, who has been charged with the crime. Sharon Risher, My Mom Was Killed in the Charleston Shooting. Executing Dylann Roof Won’t Bring Her Back., Vox (June 15, 2016), http://www.vox.com/2016/6/15/11894036/dylann-roof-death-penalty.
 See id. at 78–79 (explaining the ethic of revenge endures in the American South and inner cities where the concept of honor is taken very seriously). See also Kenji Yoshino, A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice 2–3, 24–28 (Harper Collins 2012) (comparing the U.S.’s War on Terror to ancient blood feuds).
 Approximately 99% of all death row prisoners, as well as those executed, in the U.S. are male. See Mark D. Cunningham & Mark P. Vigen, Death Row Inmate Characteristics, Adjustment, and Confinement: A Critical Review of the Literature, 20 Behav. Sci. Law 191, 194 (2002), http://www.deathpenaltyinfo.org/documents/CunninghamDeathRowReview.pdf.
 See Maurice Possley, Glenn Ford: Other Louisiana Cases with The Official Misconduct, The National Registry of Exonerations (June 29, 2015), http://www.law.umich.edu/ special/exoneration/pages/casdetail.aspx?caseid=4395 (outlining the details of Ford’s case).
 Exonerations by Year and Type of Crime, The National Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/Exoneration-by-Year-Crime-Type.aspx (last visited June 27, 2016); see also, Editorial, Four Decades of Solitary in Louisiana, N.Y. Times, Nov. 21, 2014, http://www.nytimes.com/2014/11/22/opinion/four-decades-of-solitary-in-louisiana.html?_r=2.
 See Campbell Robertson, The ‘Man Who Says’ Louisiana Should ‘Kill More,’ N.Y. Times, July 8, 2015, http://www.nytimes.com/2015/07/08/US/Louisiana-prosecutor-becomes-blunt-spokesman-for-death-penalty.html (noting that this county accounts for half of all Louisiana death sentences).
 Interview with Scharlette Holdman, Executive Director, Center for Capital Assistance (Nov. 17, 2014). See also Matthew Rubenstein, Overview of the Colorado Method of Capital Voir Dire, The Champion, Nov. 2010, at 18–20 (describing the impatience of voir dire and the Colorado approach to capital voir dire).
 See, e.g., Cindy Carcamo, After First Drug Dose Failed to Kill Arizona Inmate, Logs Show 14 More, L.A. Times (Aug. 2, 2014), http://www.latimes.com/nation/nationnow/la-na-nn -arizona-botched-execution-15-doses-20140801-story.html (describing the inmate who took fifteen injections and more than two hours to die).
 Center for Constitutional Rights, supra note 68, at 10. See generally Albert Camus, The Stranger (Matthew Ward trans., Alfred A. Knopf, Inc. 1988) (telling the story of a seemingly apathetic and emotionless man who unexpectedly shoots a nameless Arab in French Algiers and is sentenced to public decapitation). See, e.g., Martin Luther King, Jr., Why We Can’t Wait 110 (Penguin Books (1964).
 Universal Declaration of Human Rights, G.A. Res. 217(III) A, U.N. Doc.: A/RES/217(iii) (Dec. 10, 1998) (“Nothing in this Declaration may be interpreted as implying for any state, group, or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”) (Article 30).
 Simon Rogers & Mona Chalabi, Death Penalty Statistics, County by County, The Guardian (Dec. 13, 2013, 7:00 PM), http://www.theguardian.com/news/datablog/2011/mar/ 29/death-penalty-countries-world.
 Dostoyevsky, supra note 31, at xii (“Dostoyevsky . . . wrote to his publisher . . . . that in his novel he would consider the idea ‘that the legal punishment inflicted for a crime intimidates a criminal infinitely less than lawmakers think, partly because he himself morally demands it.’ ”).