After serving their prison sentences, the more dangerous criminal sex offenders in Minnesota are remanded to a prison-hospital and cannot be released until a psychiatrist certifies that they do not pose a threat to society. None ever leave. I know this because my father is the psychiatrist they have to talk to. A crucial part this argument is that my father is a still-convinced 1960’s anti-war blue-dog Catholic Yankee liberal who is about as far away from a punitive hard-ass as you are ever likely to find. About ten years ago, he was even happy to be made a part of a task force that was set up explicitly to release more sex offenders into society. They have released one in that time: an eighty-year-old, wheelchair-bound old man.
We have no reasonable hope of some persons ceasing from being serious physical threats. Call them (unimaginatively) “bad guys” Before about a hundred years ago, the answer to the problem of bad guys seems to have been self-evident: execute them. But following news stories about botched executions, fears about racial injustice, and a century of sensationalized wars, we’ve become more cautious or peevish about the manifest exercise of bloody state-violence. Executions ceased being public early on, then were done late at night if at all. Where they continued we wanted them more hygienic, scientific, and painless and much less kinetic (neither blades nor bodies could drop). The soul had to noiselessly leave a strapped-still body by electricity, gas, or poison (sorry, drugs) as opposed to being forced out by shooting, hanging, or the guillotine.
Limiting state power is far from being always wrong, and taking away powers of execution can be optimistically understood as a more compassionate stance towards evil. But any evil that you refuse to put an end to you must to some extent tolerate, and so the problem of the bad guy where execution is forbidden is that (1) we must tolerate an essentially limitless amount of evil. At the same time (2) evil becomes at once limitless while losing existential depth, since it is never seen as reaching a point of putting one’s very existence at risk. Again (3) incarceration becomes strictly punitive since its rehabilitative character is ruled out by our tacit acknowledgement that some non-zero number of prisoners have no reasonable hope of ever being anything but serious physical threats to anyone they are capable of acting on – including the prisoners, guards, and prison personnel who have the same rights to personal safety as any of us do. It’s not as if we avoid injustice by putting only prisoners at risk of harm from bad guys and not a suburban population.
I can’t wave my hand and do away with the deep seated causes that gave rise to our caution in the face of state executions, but I do want to balance it against a real good that was lost. Even if execution is not the answer, this is not because lifelong incarceration is an honest confrontation of the problem.