Many that live deserve death. And some die that deserve life. Can you give it to them? Then be not too eager to deal out death in the name of justice, fearing for your own safety. Even the wise cannot see all ends.
And we let our kids read that from Tolkien? That is what Gandalf says to an outraged and frightened Frodo. But that’s the world of elves and dwarfs and giant eagles flying to the rescue. We assume it’s not real life. As you may recall, at the Republican debate at the Reagan Library when Rick Perry was asked about the two-hundred and thirty or more people he’s executed on death row during his governorship, the audience burst into applause. And the apostate conservative, Andrew Sullivan, just didn’t get it:
A spontaneous round of applause for executing people! And Perry shows no remorse, not even a tiny smidgen of reflection, especially when we know for certain that he signed the death warrant for an innocent man. Here’s why I find it impossible to be a Republican: any crowd that instantly cheers the execution of 234 individuals is a crowd I want to flee, not join.
Well, there is this in-depth analysis of the Perry executions, arranged in order of their controversy. And Jonathan Chait reported that one of Perry’s admirers was in awe – because it “takes balls to execute an innocent man!” The item clears up that fact that the one man in question was clearly innocent. Perry signed the execution order anyway. And that is the triumph of belief in “justice” without thinking through what justice might be in any given case.
And this week the Supreme Court decided that fellow in Georgia could be executed – there would be no stay for Troy Davis, even though there was, in the end, no forensic evidence of his guilt, just nine eyewitnesses, seven of whom recanted their testimony, and everyone from the Pope to Nelson Mandela to Jimmy Carter to William Sessions, the former head of the FBI, saying slow down, this may be a bad idea. None of that mattered. He’s dead now.
And there was this:
A white supremacist gang member was executed Wednesday evening for the infamous dragging death slaying of a black man.
James Byrd Jr., 49, was chained to the back of a pickup truck and pulled whip-like to his death along a bumpy asphalt road in one of the most grisly hate crime murders in recent Texas history.
Lawrence Russell Brewer, 44, was asked if he had any final words, to which he replied: “No. I have no final statement.” A single tear hung on the edge of his right eye.
So that was that. One black man, perhaps innocent, as he may or may not have shot that white man long ago, and one skinhead white dude, clearly guilty, as he did drag that black man to his death, are now quite dead – both of them. Maybe it all evens out. And, after all, the state can execute whomever it wants to execute, for whatever reason the state chooses. Sometimes the state chooses wisely and sometimes the state gets a little casual about these things. Some of us, a tiny, tiny sliver of a tiny minority of Americans, and almost all of the rest of the nations in the world, think maybe the state should not have the option to execute its own citizens – there are after all many other options when it comes to punishment. But that too doesn’t matter much. Chalk it up to American exceptionalism.
But enough of repeating what’s been said here before, as now there’s something new:
The Texas prison system abolished on Thursday the time-honored tradition of offering an opulent last meal to condemned inmates before their executions, saying they will get standard prison fare instead.
“Enough is enough,” state Senator John Whitmire wrote in a letter on Thursday to prison officials, prompting the move. “It is extremely inappropriate to give a person sentenced to death such a privilege. It’s a privilege which the perpetrator did not provide to their victim.”
The letter was in apparent response to the dinner requested, but not eaten, by white supremacist Lawrence Brewer before he was put to death on Wednesday night for the 1998 dragging death of James Byrd Jr. Brewer requested an elaborate meal that included a triple-meat bacon cheeseburger, a meat-lover’s pizza, a big bowl of okra with ketchup, a pound of barbecue, a half a loaf of bread, peanut butter fudge, a pint of ice cream and two chicken-fried steaks. When it arrived around 4 p.m. at Brewer’s cell, he declined it all, telling prison officials he wasn’t hungry.
Whitmire, who chairs the Texas Senate Committee on Criminal Justice, threatened legislation if the prison system didn’t put an end to the practice, which rarely results in the inmate getting exactly what is requested anyway.
But a new law won’t be necessary. Brad Livingston, executive director of the Texas Department of Criminal Justice, replied that Whitmire’s concerns were valid and that the practice would halt immediately. The prisoners will be served “the same meal served to other offenders,” Livingston’s statement said.
And Digby offers what is obvious to some and incomprehensible to others:
The idea of giving the prisoner a last meal of his choice is a nod to his humanity, acknowledging a little bit of basic compassion for him as a fellow human being, however guilty he may be. And when you lose that it’s a very short trip to the kind of killing spectacles we don’t see any more in so-called advanced democracies.
But then capital punishment leads to barbarity in any case. If you’ve ever stood outside a prison when an execution is scheduled, you’ll almost always see total strangers hanging around, singing and joking – and cheering when the death is announced. It’s not personal. They just enjoy it. This primitive impulse still resides in a whole lot of people.
Dickens portrayed that primitive impulse pretty well in A Tale of Two Cities – you might remember Madame Defarge knitting a registry, a list of names, of all those condemned to die in the name of a new republic. There’s more than a touch of stealthy, cold-blooded vengefulness there. Yeah, she seems harmless and quaint. But she’s sentencing her victims to death. Those French peasants may have seemed simple and humble, but peasants eventually rise up to massacre their oppressors. Peasants are like that, you know. Or people are like that.
And there’s some history here, explored masterfully by another Brit, although he’s a United States citizen now, Christopher Hitchens:
Arthur Koestler opened his polemic against capital punishment in Britain by saying that the island nation was that quaint and antique place, where citizens drove on the left hand side of the road, drank warm beer, made a special eccentricity of the love of animals, and had felons “hanged by the neck until they are dead.” Those closing words – from the formula by which a capital sentence was ritually announced by a heavily bewigged judge – conveyed in their satisfyingly terminal tones much of the flavor and relish of the business of judicially inflicted death.
The last hanging in Britain occurred in 1964. Across the channel in France, the peine de mort was done away with by the Mitterrand administration in the early 1980s.
So the two great historic homelands of theatrical capital punishment – conservative Britain with its “bloody code” and exemplary gibbetings described by Dickens and Thackeray, and Jacobin France with its humanely utilitarian instrument of swift justice for feudalism promoted by the good Doctor Guillotin – have both dispensed with the ultimate penalty.
But Hitchens does point out that reasoning was somewhat different on each side of the Channel:
In Britain there had been considerable queasiness as a consequence of a number of miscarriages of justice that had led to the hanging of the innocent. In France, in the memorable words of Mitterrand’s Minister of Justice, M. Robert Badinter, the scaffold had come to symbolize “a totalitarian concept of the relationship between the citizen and the state.”
And that is the question. The state can execute whomever it wants to execute, for whatever reason the state chooses, in a totalitarian society. And no one wants a totalitarian society, anywhere. Maybe the Brits do, sort of, but no one else does. And of course, in Europe, the French view won:
Since then no country has been allowed to apply for membership or association with the European Union without, as a precondition, dismantling its apparatus of execution. This has led states like Turkey to forego what was once a sort of national staple. The United Nations condemns capital punishment – especially for those who have not yet reached adulthood – and the Vatican has come close to forbidding if not actually anathematizing the business. This leaves the United States of America as the only nation in what one might call the West that does not just continue with the infliction of the death penalty but has in the recent past expanded its reach. More American states have restored it in theory and carried it out in practice, and the last time the Supreme Court heard argument on the question it was to determine whether capital punishment should be inflicted for a crime other than first-degree murder (the rape of a child being the suggested pretext for extension).
And that puts us in the company of Iran and China and Sudan. And Hitchens finds that odd. Why is the United States so enamored of the death penalty? And he finds the two usual explanations have only “superficial plausibility” – that there’s an old connection between executions and racism, and it wasn’t all that long ago that we had frontier justice, like in the cowboy movies or something.
But he’s not buying the racism explanation:
Now it is true that you are very much more likely to be put to death by the state if you are a black person who has murdered a white person than you are if that condition is stated in reverse. Indeed, it was this disparity among others that led to the practice being suspended so widely for so long. And it is also true that the business of execution is carried on more enthusiastically and more systematically in the states of the former Confederacy. On both the occasions when I myself have visited death row, once in Mississippi and once in Missouri, the historic Dixie stench that surrounded the proceedings was absolutely unmistakable. Bill Clinton’s 1992 execution of the mentally disabled black man Ricky Ray Rector – at a strategic moment in the evolution of the red-faced governor of Arkansas into the trustworthy figure of an “electable” neoliberal – was the closest thing to a straight-out lynching that has been seen in the past generation. But traditional bigotries do not explain why the penalty has lately been restored in New York and California, and why a Federal execution “facility” has been built in Terre Haute, Indiana, birthplace of Eugene Debs (and used as a launching pad from which to kick the ultra-white Timothy McVeigh off the planet).
And he’s not buying the frontier-justice explanation either:
Europe in the last few decades saw a very great deal more violence and chaos on its own soil than any American has ever had to witness on home turf, even at Antietam or in the Wilderness campaign; yet there isn’t a gallows left between Lisbon and the Urals. “Terrorism” – the gravamen of the charge against McVeigh and the excuse for Clinton’s post-Oklahoma City “Anti-Terrorism and Effective Death Penalty Act” – doesn’t quite cut it either. Israel is much more frequently and savagely hit by indiscriminate attacks on its civilians, and it does not have resort to the death penalty.
And of course there’s no statistical evidence that the death penalty ever deterred any one from anything. He sees something else going on here:
The point of the penalty was that it was death. It expressed righteous revulsion and symbolized rectitude and retribution. Voila tout! The reason why the United States is alone among comparable countries in its commitment to doing this is that it is the most religious of those countries.
And there’s this:
I used to debate these questions with the late Professor Ernest van den Haag, a legal scholar of the William Buckley National Review school. He was always admirably blunt and concise. In the case of an execution of an innocent person, he once said to me, the necessary point had nonetheless been made: the state and the community had shown that they were prepared to kill. It did not especially matter if they had or had not taken the “right” life: the demonstration had nonetheless been forcibly made. …
I found, and find, van den Haag’s position to be entirely repellent, and I am not alone. At an execution I attended in 1987 at the Parchman Prison Farm in Mississippi, the guilt of the condemned man was so uncertain that the warden later resigned from his job in horror and disgust. But if one is to lay stress on such cases, then one is morally obliged to consider the approximate equivalents. How might you feel if a friend or loved one was to be murdered by a criminal who had killed before but who had been released prematurely? How might you feel if an inmate or a guard was slain by someone who had been sentenced to life without parole? In these cases, a crisp and swift application of the death penalty would have saved lives. Finally, what about the family whose infant daughter is first raped and then beaten and maimed and then buried alive (as the disturbed earth at her gravesite and the filth under her fingernails dismally proves, and as actually happened recently)? The beast-man is then apprehended. Never mind deterrence for an instant – does not all nature shriek aloud that he cannot be kept alive while she is dead, and that no peace is possible for her family until the rapist and torturer and murderer is no more?
Well, maybe, but then you bump up against the problem of perfectibility and predictability:
We cannot know in advance which malefactor – preemptively terminated – might have become a repeat offender. Nor can we know, until we set up a “pre-crime” system of detection, which pedophile might in other ways turn out to be a psychopath. So it isn’t in our power to save the second category of lives unless we agree to execute all murderers and child rapists. But it is possible to eliminate the execution of the innocent, simply by joining the association of countries that have dispensed with the death penalty.
One might be asked: What about the Nuremberg verdicts or the execution of a war criminal and mass murderer like Saddam Hussein? In both cases certain people had to leave the planet before their surviving victims – and their maimed countries and societies – had a chance of feeling normal again. I think that without undue casuistry one could argue that the hanging of the Nazi commanders was an extension of war by other means: it constituted the closing act of the war, as the hanging of Saddam Hussein constituted the conclusion or consummation of regime change in Iraq. That said, in both cases there were ugly aspects of the trials and the hangings, and there are many in Israel to argue that the Jewish state’s only-ever execution (of Adolf Eichmann) contributed to the coarsening of Israeli society. Certainly a country that makes a habit of the practice is running the risk of brutalization, which is why it can be a mistake to argue from exceptional cases. Once you institute the penalty, the bureaucratic machinery of death develops its own logic, and the system can be relied on to spare the beast-man, say, on a technicality of insanity, while executing the hapless Texan indigent who wasn’t able to find a conscientious attorney.
Well, we have run the risk of brutalization, and we now have the Tea Party crowd, and their love of the death penalty does seem religious:
In a primitive society or a theocratic state based on moral absolutism, there may be a certain “rough” justice in hauling the condemned man straight from his “trial” to the place of stoning, where at least the aggrieved relatives of his victim can have their moment of cruel catharsis.
And we have something like that, without the stoning, and Hitchens doesn’t like it:
At once too random and too institutional and systematic, this dire business has now become an offense both to law and to justice.
And Jason Brennan, a libertarian (of course), makes what might be the American version of the French argument, that governments really should not execute their own citizens:
Even if we grant for the sake of argument that some people deserve to die, it does not follow that the state may be authorized to kill them. For a state to have the right to kill criminals, it must make decisions about guilt and hear appeals in a fair, competent, and reliable manner. It must have rules that reliably let the innocent – or those whose guilt is reasonably in doubt–go free. The American criminal justice system fails to meet these standards. Perhaps a government of smart angels should be granted the right to kill. We could debate that. But no state in America deserves any such right.
And we are no angels. And Jason Brennan sounds like Gandalf. But we are far and away the most overtly religious of all western nations, and if God tells you who to kill, well, you kill that person. We may not be angels, but we do say we hear His voice. Yep, we hear voices that tell us to do violent things. And religiosity isn’t in the DSM-IV.
In the face of such a decisive trend in moral culture, we can say a couple different things. We can say that this is just change and says nothing in particular about what is really right or wrong, good or bad. Or we can say this is evidence of moral progress, that we have actually become better.
I prefer the latter interpretation for basically the same reasons most of us see the abolition of slavery and the trend toward greater equality between races and sexes as progress and not mere morally indifferent change. We can talk about the nature of moral progress later. It’s tricky. For now, I want you to entertain the possibility that convergence toward the idea that execution is wrong counts as evidence that it is wrong.
But Steve Kornacki is not so sure:
It’s tempting to wonder if the Troy Davis story – which has received considerable press attention – might serve as a public opinion tipping point. But that potential is balanced against another reality: For all of the systemic flaws that have been revealed in the past decade or so – for all of the innocent people who have been freed after years of incarceration – the basic eye-for-an-eye nature of the death penalty remains compelling for most Americans, a sentiment reinforced by the occasional horrific crime… The reality is that we have seen other cases like Troy Davis’ before – Perry may have presided over one of them just a few years ago in Texas – and it will probably take a lot more of them before Americans ever give up on the death penalty for good.
But Dahlia Lithwick counters that:
Advances in science and the empirical research on erroneous convictions are only going to create more doubt in the future. There is an almost unlimited supply of prosecutorial error and misconduct to draw on, and as it grows so will public uncertainty. And as the new media and social media broaden the debate about the death penalty, the folks who are leery of that uncertainty are ever more likely to be heard. America’s conversation over capital punishment has long been weighted toward the interests of finality. But there is a growing space for reason and doubt and scientific certainty. It’s hardly a surprise that prosecutors, courts, and clemency boards favor finality over certainty. That – after all – is the product they must show at the end of the day.
But maybe the surprise, and the faint hope, of the massive outcry over the execution of Troy Davis, is that the rest of us have found a way to demand more from a system that has – for too long – only needed to be good enough.
And then there’s Matthew Yglesias:
My view is that we shouldn’t execute people. We shouldn’t execute mass murderers. We shouldn’t execute cop killers. We shouldn’t execute child rapists. We shouldn’t execute terrorists. We should be seeking – so far as possible – to minimize the level of officially sanctioned violence and killing in order to promote a healthier, less bloodthirsty public culture. Executing murderers is clearly not in any sense a necessary element of an effective crime control regime, so we should do without it.
And he sees that as a separate issue from the fact that the American criminal justice system too often punishes the innocent, not that it matters:
It’s clear that, empirically, the innocence issue is a winning argument for death penalty abolitionists. At the same time, the innocence argument doesn’t seem to have spurred any particularly noteworthy systematic reforms on other fronts. It’s a bit of a depressing dynamic.
But there is what Gandalf says to an outraged and frightened Frodo. Many that live deserve death, and some die that deserve life. Can you give it to them? Dealing out death in the name of justice, fearing for your own safety, is probably unwise. And even the wise cannot see all ends. And no one believes Rick Perry can.