Should Berry Be Executed?: Respect the Dignity of His Choice

Ronald J. Pestritto

February 25, 1998

The Ohio Supreme Court has cleared the way for the March 3 execution of murderer Wilford Berry. Berry is often referred to as “the volunteer” because he wants to waive the legal appeals to his conviction and death sentence. While the federal courts may yet intervene, the approaching execution date has brought the death penalty back into the public mind. Ohio has not executed anyone since 1963. Among other reasons, the case is important because it causes us to reflect on the arguments at the heart of the death penalty debate.

Opponents of Berry’s execution contend that Berry is “sick”—that he is incapable of making responsible decisions, and that therefore the courts ought not hold him accountable either for his crimes or for the choices he makes as a criminal defendant.

Such arguments reflect a line of thinking in criminal justice that became dominant in the 1960s and 1970s. Liberal intellectuals and other elites became convinced that crime is not the fault of criminals. Instead, they argued, crime is the consequence of mental illness, or adverse socio-economic circumstances, or both. Since these conditions essentially force criminals to commit crimes, since criminals have no real freedom to choose their actions, then society ought not punish. Instead, society owes it to criminals to “treat” or “cure” what is really a disease.

While the death penalty is often accused of being “inhuman,” there is something less than humane about this 1960s argument. As the writer C.S. Lewis explains, punishment under this model ceases to rely on moral desert (after all, how can someone “forced” into committing crimes be said to deserve punishment?) and instead becomes therapeutic. The offender is, consequently, deprived of his rights as a human being. As Lewis contends, “the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust.” In other words, if the offender cannot be held accountable, by what right does society enforce any kind of punishment?

This problem is illustrated perfectly in the Berry case, where the offender has been treated as an object for experimentation. Instead of respecting the dignity of his choice as a moral person to be held accountable for his crime, Berry’s ex-lawyers and other misguided individuals have subjected him to psychiatric evaluation in an attempt to prove that he is something less than a whole person and ought therefore be subject to their control. Ironically, Berry is on more solid moral ground than his ex-lawyers. Opponents of Berry’s execution want to deny that civil society is founded on moral principles, and that transgressors of the law ought to be treated with equal dignity. This fundamental human dignity requires that offenders be held accountable by a criminal law based upon moral desert.

The principle of moral desert, which up until the 1960s was understood to be at the heart of the criminal justice system, also serves as the appropriate response to another common objection to capital punishment. Many see the public’s support for the death penalty as an unhealthy thirst for revenge, driven by anger. Anger, it is argued, ought have no role to play in a dispassionate system of jurisprudence. But such an argument fails to understand that public anger about crime represents moral indignation, which is eminently rational. Just citizens are rightly angered about crime, and such anger reflects the manner in which injustice offends the people’s moral sense. The criminal law must serve and respond to the rational views of just citizens, and it must do so by being as morally indignant about crime as they are.

For some, it is the circumstances under which capital punishment is currently administered in the United States that make the penalty unjust. Such opponents normally make two arguments: they claim that capital punishment disproportionately targets blacks, and they claim that it does not deter. It is curious that the claim of racial bias is so frequently used against the death penalty, because the facts plainly refute it. According to national statistics from the Department of Justice, for every 1,000 white persons arrested for homicide from 1980 through 1991, 16.5 landed on death row; for every 1,000 black persons arrested, 10.4 were sent to death row. In terms of supposed bias in the appellate process, for those executed from 1977 through 1993, white convicts spent a median time of 89 months on death row until their appeals were exhausted, while black convicts spent a median time of 102 months.

As for the contention that the death penalty does not currently deter, critics may very well be correct. But it is precisely because death penalty opponents have brought the system to a point where appeals drag on for years and years that the connection between crime and punishment may not weigh heavily in the minds of potential killers. It is plainly disingenuous for those who devote so much energy to confronting capital punishment with every legal obstacle imaginable to turn around and argue that the penalty fails to deter because it is applied inconsistently.

Most important in the case at hand, however, is that the public is right to be morally indignant that Wilford Berry pointed a gun to the head of another human being and pulled the trigger after the victim begged for his life. Berry’s would-be defenders ought to treat him with the human dignity to which death penalty opponents are so often paying lip service. They ought, therefore, to let Berry be held accountable for his crime.

Ronald J. Pestritto is an Adjunct Fellow at the Ashbrook Center for Public Affairs at Ashland University.