We'll start with the crime.
On October 1, 1997, a ten year-old boy named Jeffrey Curley was lured into a van by two men in his hometown of Cambridge, Massachusetts, who had promised him a new bicycle. Once he was inside they tried to rape him. When he resisted they beat him, smothered him with a gasoline-soaked rag, and sexually assaulted his dead body. His corpse was found six days later, sealed in a Rubbermaid container at the bottom of a river in Maine.
The murder had an electrifying effect on Massachusetts. Revulsion over the atrocity of child predation was compounded by allegations that the two murderers had a homosexual relationship, and by rumors that literature from the pedophilic North American Man-Boy Love Association had been found in their car. Outrage and fear combined with latent currents of homophobia and boiled into an almost insatiable appetite for revenge. The state's new governor, anxious to make a mark on his complacent, prosperous population, saw an opportunity and pounced. It was long past time, he said, for Massachusetts to have the death penalty.
In the ensuing debate fact and emotion tumbled over another until they were indistinguishable, and then kept tumbling until emotion won out. The death penalty was necessary, proponents said, for the protection of the commonwealth's children. The fact that the death penalty would not have protected Jeffrey Curley--neither of his attackers even had a criminal record-disappeared into the margins. The death penalty was called a crucial deterrent to crime, even though Massachusetts had one of the lowest violent crime rates in America; the murder of Jeffrey Curley could only be described as an awful anomaly. But mitigating arguments like that had no place in the halls of power, where the rhetoric was rapidly degenerating into self-serving sound bites and righteous appeals to law and order.
In the end, one high-profile case trumped another, and the shifting lens of the media eye ended Massachusetts' run at the death penalty. By virtue of nothing save timing, the furor over capital punishment came to a head just as a verdict was handed down in the case of Louise Woodward, the Boston area au pair accused of murdering an infant in her custody. Over the course of two weeks Woodward's lawyers, a legal dream team assembled by her employer, had systematically demolished the prosecution's case, yet the jury came back and convicted her of first degree murder. Amid public hue and cry the judge, Hiller B. Zobel, ruled that the jury hadDeath Becomes Us erred, and reduced the conviction to manslaughter. All at once a media machine that had been stuck on revenge became obsessed instead with the pratfalls and uncertainties of our justice system. The steamroller of public opinion, for just one moment, slowed down. In the state house, capital punishment failed to pass by one vote. The governor, in a weak effort to save face, accused those who had voted against it of endangering the state's citizens, but it was a feckless challenge. Massachusetts continues to have one of the lowest violent crime rates in America.
The incident is instructive, I think, because it shows the true motivation behind capital punishment. The appeal of this very permanent punishment is based, ultimately, on the impermanent emotion of outrage. This gives it a limited utility as an instrument of justice, but a decidedly powerful one in the building of political consensus through fear. I have no sympathy for criminals, and the idea that no one deserves to die is not one to which I necessarily subscribe. There have been crimes so hideous-I think the one I just described qualifies-that I don't think the world would be any worse for the permanent absence of their perpetrators. But that has never been what the death penalty is about. Language matters, and if we are going to assert that some people should die, we would be remiss if we did not ask, correspondingly, if some governments should kill.
The death penalty has never been illegal in America and, despite recent controversy over its effectiveness, does not appear to be headed for extinction here anytime soon. This sets our country well apart from the rest of the industrialized world, which has spent the latter half of the twentieth century not just divesting itself of capital punishment, but loudly calling for the rest of the planet to do the same. America and Europe have always had (to put it mildly) cultural differences. Nevertheless, there is something odd about watching the 15 states of the European Union call for a worldwide ban on death sentences (as they did June 5), while the pace of executions in America reaches a torrid peak. And it is a bit jarring to see the United States, leader of the free world, sitting on a list of countries that still use capital punishment, when said list reads like a catalog of repression. Our esteemed company in the practice of state death includes such human rights luminaries as the Sudan, Kuwait, China, and republics of the former Soviet Union.
None of this seems to faze Americans, who as a rule give not a damn what the rest of the world thinks. Domestic approval for the death penalty remains well over sixty percent. In fact, the closest execution has ever come to being illegal was back in 1972, when the Supreme Court, in its 5-4 decision Furman vs. Georgia, struck down the capital punishment statutes of 39 states. Even then, although the court ruled that the death penalty violated the Eighth Amendment's prohibition of cruel and unusual punishment, it emphasized that it was only illegal in the way it was then administered. Execution itself, it said, was not unconstitutional.
As Justice Potter Stuart wrote at the time, capital punishment was "cruel and unusual" only in the "same way that being struck by lightning is cruel and unusual." That is, there seemed no reason why it happened to one person and not another-ten men might be convicted for murder, but only would be sentenced to die. The Eighth Amendment, Stuart continued, "cannot tolerate the infliction of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed."
Although it was this random sentencing that led to the court's decision, in hearing the case the justices had actually wrestled with darker demons, because many of the arguments brought against the penalty showed it to be anything but arbitrary, and contended instead that it was outright discriminatory. Blacks and the poor, opponents charged, were being executed for murders that sent white middle class felons to jail. And substantial evidence had been amassed that showed murderers whose victims were white were condemned to death far more often than those whose victims were black. The state was not only racist in whom it killed, but also in its decisions about who was worth killing for.
In the end the court found insufficient evidence to indicate that race played a role in death sentencing, and the majority contented itself to a condemnation of the penalty's chaotic nature instead. But although it was considered a landmark piece of jurisprudence, Furman was at bottom a technical decision, one that judged the death penalty's efficiency rather than the penalty itself. As such, it did little to alter the public's opinion of capital punishment. Indeed, when it left the door open for states to rewrite their statutes, legislators who understood capital punishment's popularity fell to it with gusto. It took Florida a mere five months to reintroduce death sentencing, and others soon followed suit.
In the near-thirty years that have followed, it has been documented almost to the point of certainty that the machinery of capital punishment is slipshod and myopic, riven by all the prejudices of the society it purports to serve. The death penalty, opponents rightly say, doesn't work. It doesn't deter crime. It isn't cost effective. It is racist and classist. Eventually, an innocent person will die, if one hasn't already, and more than one probably has. In June, the Columbia University School of Law released a devastaing study of capital punishment, charging that the system is "collapsing under the weight of its own mistakes," and calling most death penalty prosecutions "so flawed that they need to be done over again."
A more pressing question, one could argue, is whether they should be done at all.
At the center of the death penalty debate lies the Eighth Amendment, the constitutional clause that prohibits "cruel and unusual" punishment. It is a problematic pile of words, because its meaning is necessarily relative. How does one define "cruel?" History offers little guidance-much of what was considered acceptable at the time the Constitution was written would be considered appalling today. Colonial New Orleans, for example, executed five mutineers by stretching them naked on a wheel, breaking their bones with sledgehammers, and leaving them to starve to death.
The Supreme Court "solved" this problem in 1958, in Trop vs. Dulles, when it ruled that Eighth Amendment should be interpreted based on an "evolving standard of decency." The court, in other words, acknowledged that what was cruel and unusual had changed, and could be expected to change again, and there wasn't much to be done about it other than staying on top of society's tolerance.
Although Trop vs. Dulles was not a capital punishment case, it laid the foundation for future discussions of the death penalty. Or, more accurately, future non-discussions. Because Trop vs. Dulles didn't solve the problem at all; by replacing the vague notion of "cruel and unusual" with the equally vague "evolving standard of decency," it simply created a new, highly elastic standard for judging the morality of death. More importantly, as we shall see, it also shifted the responsibility for making that judgement away from the judicial arena and into the political one.
In 1976 the Supreme Court heard Gregg vs. Georgia, the first death penalty case after Furman to be challenged. Gregg, in his appeal to the high court, eschewed the complaints of arbitrary sentencing that had won Furman his reprieve, and charged that capital punishment was by its nature cruel and unusual.
The case was long and contentious, and the Court, in the end, made what has to be one of the most bizarre decisions in its history. It upheld the death penalty on grounds that 35 states had it. The fact that so many elected legislatures had passed capital punishment statutes, the court reasoned, demonstrated "society's endorsement of the death penalty," and thereby meant it fell within America's "evolving standard of decency." It added, however, that any execution must be carried out in a way that preserves the "dignity of man," and accomplishes nothing more than the "mere extinguishment of life." But we'll get back to that.
For the moment, let us concentrate on "society's endorsement of the death penalty." Problems fairly scream from this line of argument. It is, if nothing else, a classic case of circular logic; the Court used the cause of the complaint as the basis for throwing it out. The fact that a state had the death penalty was, after all, what prompted the appeal in the first place. But the Court was essentially saying the law couldn't be challenged because it was a law in many places, so it must be legal.
More disturbingly, the constitutional charge of the Supreme Court is to prevent precisely what it endorsed in Gregg: allowing the majority to mindlessly dictate what is right. By citing the will of the majority as a basis for keeping the death penalty, the Court acted as a de facto elected institution, and capitulated to the popular will it was designed to check. Trop vs. Dulles allowed the Court to surrender back to the majority the very powers it was given to keep that majority contained.
Does this matter? History overflows with the dangers of letting a society become its own moral barometer. Morality is best determined with hindsight-any "evolving standard of decency", sadly, is best examined after the evolution has taken place. For hundreds of years an American majority found little that was troubling in the idea of enslaving other people, and the Supreme Court's affirmation of that popular will (Dred Scott) now stands as one of the most shameful chapters in its history. Likewise most Germans today look back on the Holocaust with shame and revulsion, but for those caught up in its seductive malevolence, there was no cause more decent than the extermination of a hated minority.
I make the point not to say that the death penalty is on par with slavery or the Holocaust, but to point out that the philosophical justifications are the same. "Decency," in the sense that Trop vs. Dulles intended, is inextricably linked to equality. Our idea of what is right extends only as far as those we consider worthy of the same protection we give ourselves. The Germans considered the Jews subhuman, just as Americans considered a slave to be only three-fifths of a white. For this reason Americans found nothing contradictory about Thomas Jefferson's ideas of life and liberty and the small army of slave labor he kept at Monticello. It took a foreigner, Alexis de Tocqueville, to note the double standard: in his Democracy in America, the French journalist pointed out that America's otherwise progressive system of justice was marred by its appalling tolerance of slavery. Americans didn't agree, for the simple reason that at that time the word "equal" didn't apply to blacks.
From one perspective, then, if justice is dependent on equality, then absolute justice--i.e., the execution of a human being-requires a state of absolute equality. Since not even the most ardent proponent of capital punishment could argue that this condition exists in the United States, the death penalty would without question be an unjustifiable institution. But this is admittedly a cerebral argument. The more troubling aspect of the death penalty is that it reinforces the factors that gave rise to inequality in the first place, by giving us not only people to hate, but permission to hate them. And therein, sadly, lies its largest purpose.
Society pays lip service to the idea that capital punishment deters crime, but in truth we shroud the death penalty in so many layers of obscurity that it has become an abstraction, and abstractions cannot be deterrents. Death sentences are carried out at midnight, in far-flung areas of far-flung prisons. The number of people allowed to view them is sharply restricted-in 1991 California went to court to prevent KQED-TV from televising executions. It is hard for something to be a deterrent if no one can see it.
So long as the death penalty remains ambiguous, however, it can continue to exist, and so long as it exists it can be used by demagogues. So it is spoken of in clinical language, intended to dehumanize the act and demonize the condemned. We in the United States, it tells us, do not selectively kill prisoners. We administer capital punishment, in a manner neither cruel nor unusual, and always preserving the dignity of man, to attain the mere extinguishment of life in accordance with our evolving standard of decency. The language has a sedative effect: it sounds professional and reassuring, and encourages us to leave it be, never inquire as to what those words mean, or pause to wonder how a judiciary nominally opposed to murder ever could modify the phrase "extinguishment of life" with the word "mere."
An example: in 1983 Jimmy Lee Gray went to federal court seeking relief from his death sentence in Mississippi. He brought with him affidavits attesting to the barbarity of execution by lethal gas. Among them was testimony from Dr. Richard Traystman, a professor at Johns Hopkins Medical School, who described in detail how cyanide gas induces a heart attack on its victims. "We would not use asphyxiation, by cyanide gas or by any other substance," Traystman said, "to kill animals that have been used in experiments."
The court wasn't impressed. Not because it didn't believe him; to the contrary, it accepted everything Gray offered as true. But it ruled that "pain and terror" were an expected part of capital punishment, and thus not sufficient to be "cruel and unusual."
Gray was executed that May. Eight minutes after the gas was released, prison officials had to clear the viewing area, because his desperate gasps for air were horrifying witnesses. Gray's lawyer, wanting everyone to see what was happening, tried to stop the warden from clearing the room, but was overruled. Only the media stayed. "Jimmy Lee Gray," attorney David Bruck later said, "died banging his head against a steel pole in the gas chamber while reporters counted his moans."
Beyond the inhumanity of Gray's death, a dangerous hole had been opened in the Eighth Amendment. Although no American can be subjected to "cruel and unusual" punishment, a death row convict can, apparently, be subjected to a death filled with "pain and terror." This is an uncomfortable exception, particularly since "pain and terror" do not jibe well with the "mere extinguishment of life." The court had ripped a seam in the Bill of Rights, and tacitly endorsed torture. When Alabama executed Tommie Smith in 1996, prison officials could find no vein on his arms suitable for his lethal injection (he had been an intravenous drug user). He remained fully conscious while the officials-not doctors, doctors are prohibited from performing executions-plunged an angio-catheter into his heart, a procedure that took 35 minutes. It still took him almost an hour to die.
But there is the temptation to ask: we can ask, so what? A murderer meets a horrible fate: does this matter? Yes it does. When we open holes in the Constitution, it is far easier to tear them wider than it is to mend them. We as a majority, in other words, tend to get carried away. In 1996, in response to the atmosphere of dread that followed the Oklahoma City bombing, Congress passed the Anti-Terrorism and Effective Death Penalty Act. It was sold to the American public as an antidote to the crime-coddling and needless bureaucracy that had waterlogged our system of justice. Few people, filled as they were with revulsion over Timothy's McVeighs crimes, bothered to object. They didn't realize that nothing in the bill would have stopped the bombing. Nor did they notice that quietly dropped into its final section was a clause that all but destroyed the writ of habeas corpus. Despite statistics showing that 7 out of every 10 habeas appeals had merit, the new law drastically restricted the ability of federal courts to review the cases of state prisoners, and forced federal judges to accept as fact large portions of the state court's findings. It also slapped a one-year limit on the right of inmates in state prisons to request a review at all, in many cases regardless of new evidence that may surface. Unbeknownst to most Americans, the constitutional protection against unlawful imprisonment now expires after twelve months.
For Congress, the bill was constituent-friendly: tough-on-crime legislation is rarely unpopular. For a death row prisoner, the law had slightly darker implications. After 12 months have passed, a prisoner is left no recourse except an appeal to his or her governor for clemency. And so justice, again, gets cycled into the realm of politics. Often poor, and almost always disenfranchised (virtually every state has laws that bar felons from voting) death row inmates offer politicians nothing but a target-the ability to campaign on what everyone doesn't like, rather than on a platform of issues.
Take Kirk Fordice, who in 1995 ran for governor of Mississippi on a promise to make it the "capital of capital punishment." Or Bill Clinton, who in 1992, fearful of the soft-on-crime smear tactics that George Bush had used to ruin Michael Dukakis, flew home to oversee the execution of Ricky Ray Rector, a mentally retarded man convicted of killing a police officer. For Clinton, it proved a pivotal moment in his presidential campaign, because it allowed him to seize the crime issue for the Democratic Party. Rector, for his part, even minutes before his execution had no idea what was about to happen to him. Before being led to the gas he asked prison guards not to remove the dishes from his last supper, because he would want dessert when he returned. Federal law says no one can be executed if they aren't mentally fit; being unaware of one's impending demise would certainly qualify. But that didn't matter to Ricky Ray Rector, because the only man who could save him was the one who most needed him dead. And so to the gas...
Then, of course, there is George W. Bush. Elected Governor of Texas partly on a pledge to be more vigorous with executions, he was given a litmus test by Karla Faye Tucker. Convicted of a brutal, drug-induced murderer 20 years before, she had become a born again Christian while on death row, and her victim's brother actively agitated for her sentence to be commuted. When asked by reporters about Tucker's pleas for her life, Bush laughed. Executive clemency is rarely granted because death row inmates are politically more valuable as objects of fear than they are as human beings. As human beings they pose a haunting moral problem. As objects of fear they can unify us through hatred: they are stepping stones for cynical kings, one more source of amusement for the empty-headed scions who feel entitled to America.
There is a hole in all of this, I know. I have just talked about the manipulative effect of the language of capital punishment, and yet even as I write a vigorous debate about the death penalty is raging in America. How can that add up?
The answer, I think, lies not in that we are discussing capital punishment, but in how we are discussing it. We have, in our country, an obsession with efficiency, one that easily transcends our concern with less-pragmatic values. Different people have come up with different names and reasons for this phenomenon, but almost all agree that it exists, and it is fair to say that this obsession has successfully constricted the parameters of our discussion on capital punishment. The debate that rages today is an appeal to our practical sense, with supporters arguing that the death penalty works and opponents rushing to prove them wrong. The opponents are right, of course, but they are winning the argument on the wrong terms. They have won in the language of the death penalty, and legitimized it in the process. They have said we're spending too much money, possibly killing the wrong people, and not deterring crime. Underlying this is a tacit acceptance: if we can spend less money, deter crime, make sure we kill the right people, this thing might just be okay.
Such is the culture of efficiency: so concerned have we become about whether it works that we have forgotten to ask whether it should exist at all.
When, in Gregg vs. Georgia, the Supreme Court reaffirmed capital punishment, it offered in its majority opinion a justification for the morality of the death penalty, and calling it "an expression of society's outrage at particularly offensive conduct":
The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy.
Not so. Societies do themselves no favors when they answer vile and inhuman acts by committing those acts in kind. Government is designed to stifle man's worst instincts, not accommodate them. Criminal justice, for its part, is designed to reaffirm standards of right and wrong, and to reassure those who have borne witness to crime-be it in person or in the media-that society remains intact and orderly, and has withstood the hostile actions visited upon it. The death penalty undermines this goal, because it validates the utility of those actions, and says a society can only survive by adopting the tactics of those who would destroy it. It asserts the primacy of violence.
The death penalty, in other words, is predicated on the idea that the primary goal of justice is revenge. But revenge is not law; it is derived from emotion rather than principle, and justice is by definition a principle blind to emotion. The death penalty is therefore antithetical to justice, a form of codified vigilantism based on the hollow promise of vengeance and the untenable dream of human infallibility. It is an arrogant institution that says juries are never wrong, that individuals, when gathered under the umbrella of government, can become flawless to the point where life and death is a matter for their discretion, that they are divine, gods in a secular land.
It is long past time to stop talking about the efficacy of capital punishment, and long past time to stop the killing. The death penalty can't be "fixed." It isn't broken. It's just wrong.
Or put it another way: in May of 1999, Random House posthumously published Juneteenth, Ralph Ellison's final, unfinished meditation on America. A chaotic masterpiece, the novel at one point poses a series of questions that its main character insists are the defining questions of any free society. Among them is: "How does the light deny the dark?"
Overtones of race pervade this question, which is not surprising, since the dilemma of race haunted Ellison and haunts still the country he chronicled. But in a larger sense, the question addresses the fundamental problem of a democracy: how does a nation ruled by its majority protect itself from that majority's worst instincts?
Seen in this light, the death penalty represents a failure of democracy-or more accurately, a democracy undiluted, and teetering as a result on the brink of totalitarianism. Capital punishment is an action of the majority, a natural instinct for retribution that has been legitimized, rather than contained, by the institutions of government. It knocks down the wall between civility and barbarity that government is supposed to erect. By pretending humans are perfect, it gives them access to those parts of their character that are most flawed-the raw emotions of anger and bloodlust-and bestows on them the mantle of righteousness.
There is nothing more repugnant than what the governor of Massachusetts did in 1997, grandstanding over a still-warm grave, hijacking the legacy of a little boy and turning it into political capital. But until we change the way we discuss the death penalty, and focus not who is being killed but instead on who is killing, we will always be in favor of it. We will always be susceptible to demagogues who manipulate our fears, to politicians who drag corpses from the ground, lay claim to the memory of innocents, and ask us to kill in their name.