Dealing Out Death

Thou shalt not kill. That seventh Commandment was a problem from the start:

The Exodus narrative describes the people as having turned to idolatry with the golden calf while Moses was on the mountain receiving the law from God. When Moses came down, he commanded the Levites to take up the sword against their brothers and companions and neighbors. The Levites obeyed and killed about three thousand men who had sinned in worship of the golden calf. As a result, Moses said that the Levites had received a blessing that day at the cost of son and brother. On a separate occasion, a blasphemer was stoned to death because he blasphemed the name of the LORD with a curse.

There were exceptions from the first – capital punishment if not mass execution is fine, for what is considered an unforgiveable crime at the time, like worshiping that golden calf, and warfare and self-defense offer exemptions too. The unforgivable crimes, however, do change over time. Lying about virginity (Deuteronomy 22:20-21) and consulting a psychic or spiritualist (Leviticus 19:31) and cursing your parents (Exodus 21:17, Leviticus 20:9) no longer get anyone stoned to death, if they ever did. The Old Testament was softened in the New Testament – many of these matters were politely ignored – as the emphasis shifted from God’s righteous anger with us all to His love for us all, every one of us. He sent us Jesus after all, to die for our sins. Perhaps we should stop killing each other.

That was the general idea, but this called for a whole new subset of theology – Just War Theory – and Saint Augustine and Thomas Aquinas had a few things to say about that. There must be a just cause for war – not a whim or paranoia or a simple land grab – and comparative justice – the injustice suffered by one party really must significantly outweigh that suffered by the other – and competent authority – a sensible political system deciding to wage war, not a random bunch of jerks – and right intention – the righting an actual wrong – and a probability of success, used as a last resort, and proportionality is nice too. We were told not to kill each other. We had to work out a way we could, one that wouldn’t make Jesus weep. We’re still working on that.

Killing in self-defense is easier. That presents no ethical challenges. The person whose life is in danger has the right to defend his or her life, but of course things are never that simple. The person whose life is in danger has options other than using deadly force to mitigate that danger. Don’t kill the other guy – walk away. Police officers in some places are taught de-escalation techniques, even if many of them, seeing themselves as warriors, hate that sort of thing. Many carry Tasers – there’s no need to blow the other guy’s brains out. And then there’s the matter of interpretation. Was the person who thought his or her life was in danger really in danger, or did they panic, or were they simply overwhelmingly angry at being disrespected, or were they just one more dimwitted jerk with seething cultural or racial resentments, or drunk with the power of the uniform?

That’s speculation. Perhaps their life was in danger. Were you there? They were. Take their word for it. There was just cause, they were a competent authority, this was a last resort, and the response was proportional. Who can say otherwise? The other party is dead.

In these matters, the bias has always been toward sanctioning the use of deadly force, or has been until recently. George Zimmerman – the neighborhood watch wannabe cop – shot and killed an unarmed black kid, who seemed to pose no threat to anyone, after Zimmerman was told by the real police to back off and wait for them. Yes, Zimmerman was not found guilty of anything, but it wasn’t easy for him to get there from the evidence, or lack of evidence. In Missouri, that cop in Ferguson shot and killed an unarmed black kid who also seemed to pose no threat to anyone, and that cop was not indicted for anything, but the country exploded in outrage, and in outrage at the outrage. The matter of that unarmed black man in Staten Island being choked to death by the white cop, for nothing much at all, when there were other options available, was caught on camera, but that made no difference. The local grand jury indicted no one for anything. The use of deadly force is fine. Many thought it wasn’t. Something was changing.

This month, when the inevitable white cop in South Carolina shot and killed the inevitable unarmed black man, who seemed to pose no threat to anyone, the cop was charged with murder – finally, no one believed that stuff about how the officer feared for his life. There was video. That was bullshit. Even the folks on Fox News would not defend this guy. We had a national epiphany. It has become too easy to casually deal out death in this country, under the guise of authority, claiming just cause.

Next up is the death penalty. We’re one of the few nations on earth that still maintains that the state has the right to kill one of its citizens, who did the unforgivable, even if the Innocence Project every few months manages to spring another guy from death row, who didn’t do the unforgivable at all. The system screwed up. Set that against the Antiterrorism and Effective Death Penalty Act of 1996 – the federal law that now makes it next to impossible to file a second or third appeal of a death sentence, no matter what has come up. That passed 91-8 in the Senate and 293-133 in the House – after the World Trade Center and Oklahoma City bombings. Bill Clinton signed that with a smile. You get one shot. There can be no multiple appeals. You’re gonna die.

There are ways around that, but we are a bloodthirsty lot, and someone has had enough of this:

Earlier this month, a jury convicted Dzhokhar Tsarnaev on a litany of counts relating to the Boston Marathon bombing two years ago and its aftermath. That same jury is also going to gather in the coming days to decide whether Tsarnaev should be sentenced to death for his actions.

The parents of Martin Richard, the 8-year-old boy killed in the explosion, do not want to wait. In an open letter, they called on the federal government to stop seeking the death penalty, which they said could lead to years of appeals that would only prolong the case.

“We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal,” William and Denise Richard wrote in a statement published Friday on the front page of the Boston Globe.

Should the government kill this guy? Should the government not kill this guy? Screw that. They want this over:

In their letter, they outline the brutal situation they have faced since the April 2013 bombing. They described how they grieved for one child while also facing their own injuries and severe injuries to their young daughter, Jane, who lost most of her left leg.

“We understand all too well the heinousness and brutality of the crimes committed,” they said. “We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul.”

Isn’t that enough? No, the government wants to play by the rules:

Martin was one of three people killed in the explosions, which also injured more than 260 others. His age is expected to be cited by prosecutors as an “aggravating factor” that the jurors should consider when debating whether Tsarnaev should be sentenced to lethal injection or life in prison without parole.

The U.S. federal death penalty statute lists several potential aggravating factors when considering a possible death sentence, one of which is whether victims were “particularly vulnerable” because of their age. When prosecutors announced that they intended to seek the death penalty, they wrote in their court filing last year that Richard “was particularly vulnerable due to youth.”

While Attorney General Eric H. Holder Jr. personally opposes capital punishment, he said last year that prosecutors would still seek the death penalty due to “the nature of the conduct at issue and the resultant harm.”

And so it goes:

Tsarnaev was found guilty on all 30 counts he faced, and 17 of them carried a possible death sentence. Jurors selected for this case had to demonstrate that they could be impartial and they also had to show they were willing to sentence Tsarnaev to death if he was convicted. The penalty phase in the trial begins next week.

The nation will be riveted. Can we kill this guy, please, pretty please? These parents don’t want to have any part of that:

While the Richards say they appreciate “the tireless and committed prosecution team,” they said they just wanted the case to be over. The Richards said that they were speaking only for themselves and not for any of the other survivors or families of the victims.

If the jurors do sentence Tsarnaev to death, that “could bring years of appeals and prolong reliving the most painful day of our lives,” the Richards said. That lengthy process could also lead to their surviving children growing up with an ongoing reminder of what the family lost, they added.

“As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours,” they said. “The minute the defendant fades from our newspapers and TV screens, is the minute we begin the process of rebuilding our lives and our family.”

They are not opposed to the death penalty, or for it. This isn’t a moral issue. They have other concerns, so let the guy live and be done with it.

Fine, but in the Los Angeles Times, Michael McGough says this is none of their business:

It’s a powerful appeal, but federal prosecutors should ignore it. It would be equally wrong for the government to seek the death penalty because the family endorsed it.

If this sounds unfeeling, it’s probably because of the increasingly prevalent view that the purpose of the criminal justice system is to avenge private wrongs and provide closure for crime victims and their families.

That idea has been encouraged by the rise of a victims’ rights movement and the tendency of legislators to portray new criminal laws as responses to individual injustices – the “Megan’s Law” phenomenon.

Ah yes, Megan’s Law:

Megan’s Law is an informal name for laws in the United States requiring law enforcement authorities to make information available to the public regarding registered sex offenders, which was created in response to the murder of Megan Kanka. Individual states decide what information will be made available and how it should be disseminated. Commonly included information is the offender’s name, picture, address, incarceration date, and nature of crime. The information is often displayed on free public websites, but can be published in newspapers, distributed in pamphlets, or through various other means.

At the federal level, Megan’s Law is known as the Sexual Offender (Jacob Wetterling) Act of 1994, and requires persons convicted of sex crimes against children to notify local law enforcement of any change of address or employment after release from custody (prison or psychiatric facility). The notification requirement may be imposed for a fixed period of time – usually at least ten years – or permanently. … Megan’s Law provides two major information services to the public: sex offender registration and community notification.

That may be a good thing, but its constitutionality is always questioned, and McGough adds this:

Some of what the victims’ rights movement has achieved is perfectly defensible. The federal Crime Victims’ Rights Act, similar to some state statutes, requires that crime victims be protected from the accused and that they be given timely notice of court proceedings or the release or escape of the accused.

But the law also confers on crime victims the “right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding” – a guarantee some victims’ rights groups want to add to the U.S. Constitution.

This is much more problematic. Obviously, victims of crime should be treated with respect, and they have a legitimate stake in the vigorous prosecution of those who harmed them. True, one purpose of the criminal justice system is to eliminate the need – and the justification – for private vengeance. But crimes are also crimes against society in general.

The prosecutor at a criminal trial represents the public, not just the victim. That’s why criminal cases in California are styled “The People v. [Defendant]” and why the federal indictment against Tsarnaev was captioned “United States of America v. Dzhokhar A. Tsarnaev,” not “Bill and Denise Richard v. Tsarnaev.”

When U.S. Attorney General Eric H. Holder Jr. announced last year that the government would seek the death penalty in this case, he cited the “nature of the conduct at issue and the resultant harm.” Right or wrong that was his call and not that of the victims’ families.

The state has its death-to-the-bad-guys mechanisms, and those mechanisms have their own momentum now. Don’t get in the way, but this is curious:

Meanwhile, a new poll finds support for capital punishment at 40-year low point: The majority of Americans (56 percent to 38 percent) still support the death penalty, according to a survey by the Pew Research Center. That’s a 22-point shift away from support since 1996.

Although support for the death penalty has fallen among Republicans, Democrats and independents, the biggest change has come among Democrats. In 1996, 71 percent of them supported capital punishment, with 87 percent of Republicans and 79 percent of independents in favor. Just 16 points between Democrats and Republicans then, but 37 points difference now. Support for the death penalty in the latest survey was 40 percent among Democrats, 77 percent among Republicans and 57 percent among independents.

In the last presidential election cycle, 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. 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.

There is this in-depth analysis of the Perry executions, arranged in order of their controversy. Jonathan Chait reported that one of Perry’s admirers was in awe – because it “takes balls to execute an innocent man!” That item clears up that fact that the one man in question was clearly innocent. Perry signed the execution order anyway. Maybe it will be different this time around.

The late Christopher Hitches had said this:

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 Guillotine – 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. Hitchens finds that odd. Why is the United States so enamored of the death penalty?

Dahlia Lithwick offered this:

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.

That is the problem, 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.

Albert Camus in Reflections on the Guillotine put it this way:

But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.

Who needs this? But forget the moral issues. Those parents in Boston just find the whole business of dealing out death pointless. It advances nothing. Perhaps we can move on.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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2 Responses to Dealing Out Death

  1. Rick says:

    I always fantasize what I would say if called for jury duty in a capital case, and during selection, they ask me if I’m “in favor of” the death penalty. I would have to tell them, “No, I don’t ‘favor it’ as policy, although since it is our policy, then yes, I can envision certain cases where I would vote to execute someone.”

    And if they asked for elaboration, asking me if my objection is on “moral” or “religious” grounds (which, by the way, they probably wouldn’t ask, since they know they’d just be digging themselves into a bottomless pit, a big waste of everyone’s time — but this is just a hypothetical fantasy, so stay with me here), I’d tell them that, no, it’s not religious — after all, how can any religious person claim to believe that a God who orders his followers to murder about 3,000 guys who’s only crime was worshiping a golden calf statue, and later, orders the survivors to go down into Canaan and murder every man, woman, and child they find there, is in any way “moral”. And nor is this really about “morality” in the sense that, “Isn’t it as much of a sin for the state to kill somebody than it is for any individual to do it?”

    No, in fact, largely because I don’t really believe in “sin” — since that’s just so much religious jargon and I’m not at all religious — I think the state actually does have the right to decide to execute someone. It’s just that I don’t think it’s a good idea that they do it.

    It’s just that I don’t like the idea of accidentally killing an innocent person in pursuit of all the guilty ones, which I’m pretty sure, by the law of averages, has happened plenty of times in our history, so I’d be willing pitch in and help pay for the perpetual upkeep, without parole, of all murderers, accused and actual, on the off-chance that we later find out one of them was convicted by mistake.

    But what about the idea, that one of the legitimate purposes for the penal system is “revenge”?

    I would say, to those who argue that, that if they believe in God, they should remember that it was He who allegedly said, “‘Vengeance is mine,’ saith the Lord.” (Well, okay, He wouldn’t say that, because then it would have to be “”Vengeance is mine,’ saith the Lord,’ saith the Lord” — but you catch my drift.) And if they don’t believe in God, I would then say they should try to get over it, stop being obsessive assholes and find something else to occupy themselves — take up a hobby, learn a foreign language, whatever — but just go back to their workaday lives. It should just be enough for us that murderers are cut from the herd and sent away to some place from where they will never be heard again.

    All of this, of course, would be an answer which, assuming they even let me yammer on for that long, I’m pretty sure would get me excused from the panel, since nobody likes a smart-ass, especially one who parses the meaning of everything until everyone forgets what the hell we were all talking about in the first place.

    Rick

  2. Bonnie Bishop says:

    Another argument ‘against’ took me by surprise some years ago when I used this topic while teaching urban high school kids how to write a persuasive essay (or at least trying to). Many of my students, some of whom had experienced more violence and occasionally even the fall-out of murders than the average teen, argued for ‘life without possibility of parole’ over death as a far worse punishment. Let the perpetrator think every day about what he did and what he lost and, in the cases of violence against children, let the other prisoners administer their own brand of jailhouse justice. Death just lets the criminal off the hook. It’s quite possible they were onto something.

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