The Killing Fields

Like gun control and abortion, the death penalty is one of those peculiar American institutions that make citizens of the other developed countries shake their heads with wonder. Capital punishment has been abolished throughout the developed world, and it is now inconceivable that it could ever be reinstated in the countries of the European Union. It is not even an available option for the ad hoc international criminal tribunals formed to bring the authors of the Rwandan and Bosnian genocides to justice. In all likelihood, many countries in the former Soviet empire will soon either voluntarily renounce it, or be compelled to do so as the price for entry into the EU or as a means of winning Western Europe’s favor.

In America, the situation is entirely different. To supporters of the death penalty, it is not just the ultimate sanction but, as David Frum, the conservative columnist, has put it, “the justice Americans demand.” For crusaders against capital punishment, its increasing ubiquity is cause for horrified wonder and the emblematic instance of the dark side of American exceptionalism. As William McFeely, the distinguished historian and staunch anti-death penalty advocate, demands indignantly in his new book, ‘Proximity to Death,” “Why has the United States, with its claim to moral leadership, gone in precisely the opposite direction [from much of the rest of the world]? Why are we Americans so enamored of the death penalty? Shouldn’t it have gone the ways of witch trials and slavery?”

It is a cry that has been taken up by almost every anti-death penalty campaigner at one time or another. For these advocates, the inhumanity of capital punishment is simply beyond dispute. And yet McFeely is under no illusion that his views are shared by more than a small minority of his fellow citizens, much as he yearns for the day when they will learn to think differently. “All across the land,” he writes, “there are cries for more executions. Governors who have held out against the death penalty are defeated; politicians, former prosecutors prominent among them, climb to elected office on its popular coattails. The task of ending the death penalty, thought accomplished by an earlier Supreme Court in 1972, has seemed almost hopeless since 1976, when executions could be resumed. Until revived, the death penalty had not been enacted since 1967. In 1997, the states killed seventy-four people; thirty-seven in Texas alone.”

If anything, McFeely understates the degree to which the death penalty is an almost foolproof vote-getter for any ambitious American politician these days. The careers of both our incumbent president and the man still most likely to be the Republican nominee in this year’s election are cases in point. Texas is the ground zero of capital punishment in contemporary America and, at least according to some press reports, Gov. George W. Bush was almost gleeful when asked about his decision not to stay the execution of Karla Tucker. As for President Clinton, he actually returned to Arkansas during the 1992 campaign so he could preside over the execution of Ricky Ray Rector, a man who, on the night of his execution, hid part of his last meal because he literally did not have sufficient mental capacity to understand what was about to happen to him.

Indeed, in the larger American political context, the death debate illustrates the degree to which, at least on matters of criminal sentencing and police power, Clinton has governed as what in the past would have been called a Republican, and not a very liberal one at that. His decision to sign the 1996 Anti-Terrorism and Effective Penalty Act effectively limited, for the first time in American history, the time in which appeals of death sentences could be filed in the federal courts. But the change goes deeper than Clinton’s Zelig-like instrumentalism. No politician anywhere in America who had serious ambitions to run for statewide or national office would voluntarily make much of his or her opposition to capital punishment, assuming it existed. The days when Jerry Brown could call his father from a pay phone outside the walls of San Quentin to implore him to commute the death sentence of the convicted murderer Caryl Chessman are long gone. And understandably so. Today, it would be political suicide.

This sense of beleaguerment does much to help explain the curious uniformity of tone evident in the major recent anti-death penalty writings. Whether it is McFeely’s almost hagiographical account of the activities of Stephen Bright and the group of lawyers who work with him at the Atlanta-based Southern Center for Human Rights defending murderers in capital cases, or Katya Lezin’s “Finding Life on Death Row,” a study of six convicted murderers awaiting their execution in various state penitentiaries, or scholarly anthologies by various hands like those collected by Austin Sarat in “The Killing State” or Hugo Adam Bedau in “The Death Penalty in America,” the points made and, indeed, the people making them are very much alike. Above all, these books share an anguished sense that the death penalty dishonors us all, and that, as a society, we should not allow ourselves to stoop to the level of killers and rapists. Bright’s line that “there is more to the life of a person than the worst thing he or she has ever done,” appears again and again, almost as if it was a phrase of the prophet Isaiah.

For McFeely, as for almost every anti-death penalty advocate, this is the only possible moral stance to take. He considers the death penalty to be nothing more than the state murdering the murderer and rejects the “validity of any killing, even as punishment.” A hallmark of this approach is that while writers like McFeely and Lezin write eloquently of the practical reasons for opposing capital punishment, ranging from the statistically demonstrable fact that death sentences are meted out disproportionately on the basis of race, ethnicity and social status to the inconsistency with which the sanction is applied and, finally, to the virtual certainty that, even if it has not happened already, sooner or later an innocent person will be executed, this is not the heart of their objection. At its root, principled opposition to the death penalty appears to be almost always moral first and pragmatic second. As Lezin puts it, even ending the life of a guilty person makes us all guilty to some degree of “the very crime for which we are punishing someone.”

This is a powerful stance. Anyone who believed it would almost certainly find the arguments of death penalty advocates morally obscene. McFeely compares the struggle to abolish capital punishment to the fight to end slavery and at times seems to see in Bright a latter-day John Brown. Again, in much the way pro- and anti-abortion campaigners have virtually no moral common ground, the death penalty debate has become what the French aptly call a dialogue of the deaf. Certainly the assumption of writers and activists like McFeely, Lezin, Bright and those who think like them that retribution is wrong stands in stark contrast to the underlying motivation behind the widespread American public support for capital punishment. It, too, is only superficially grounded in pragmatic considerations; after all, life without parole would have the same practical effect in terms of protecting people. Rather, the ultimate justification for the death penalty is also moral and is rooted in the belief that certain killers have forfeited not just their right to freedom but their right to live.

By assuming that this is a claim that can simply be dismissed, death penalty abolitionists virtually guarantee that they will make few new converts. For retribution or, if one prefers, the right of a society no longer to share the Earth with certain monstrous killers--this was Hannah Arendt’s celebrated justification for the Israeli decision to execute Adolf Eichmann--is hardly as atavistic as writers like McFeely and Lezin seem to believe. It is all very well for Lezin to conclude despairingly that a reliance on the death penalty “discounts any belief in redemption and forgiveness, reflecting a short-sighted and dismal view of humanity.” But does this really apply to everybody? And is Bright correct when he insists that a person is more than the worst thing he or she has ever done? I am not so sure. I do not think it is simply shortsighted or dismal to insist that Eichmann was only what he did in engineering the Final Solution or to defend the proposition that his acts placed him beyond forgiveness.

Consider the case of Robert Alton Harris, who was convicted of murdering two teenagers whose car he had stolen in a remote corner of Mira Mesa and who was eventually put to death by the state of California. Harris is often cited by anti-death penalty scholars as the moment when the Supreme Court moved from permitting states to reinstate the death penalty to instigating a virtual rush to execution by vacating a number of stays of execution issued by lower federal courts. In the Harris case, the U.S. 9th Circuit Court of Appeals had issued several stays of execution when the Supreme Court stepped in and ordered that in the future, no such stays be issued without its permission. As longtime anti-death penalty campaigner Anthony Amsterdam points out in his contribution to “The Killing State,” “the Court was unmistakably about the work of whipping the lower federal courts into line to speed the lagging rate of executions.” The order vacating Harris’ stay of execution, he writes, was in effect “a declaration that the twenty-eight judges of the Ninth Circuit Court of Appeals and the several dozen federal district judges in California are collectively incompetent to administer the law or to protect themselves against seduction by the beguiling impostures of Harris’ crafty counsel.”

There is much that is true about this account but much that is arguable as well. In blaming the Supreme Court, Amsterdam is, at least to some degree, indulging in a by now familiar American pastime, much beloved of activists on both the left and the right. The reality, however, is that Supreme Court decisions on controversial issues have almost always reflected, at least to some degree, the direction of public sentiment. Just as the court codified the civil rights revolution and then codified public reservations over its supposed overreach, so the court first seemed to reflect the growing consensus against the death penalty and now, as it has for the last 20 years, reflects the public’s obsession with law and order, its horror over the crime rate and its collective desire for retribution.

To see the depth of feeling that accompanies this demand, one has only to log onto the Internet to one of the pro-death penalty Web pages (unsurprisingly, most of the books published by scholarly presses seem to share an anti-capital punishment perspective), whether it is the Victims’ Rights Homepage of the state of Florida or some unofficial site. The focus is almost always on the way the courts are standing in the way of stone killers’ finally paying for their crimes. Again, the conclusion is inescapable that, as with abortion and gun control, the death penalty is an argument viewed by both sides as being a contest for the soul of America. At times, anti-death penalty activists seem not just horrified but baffled by the thought that they really are destined to go on living in a society that would engage in such cruelty. Sarat worries what a continuation of the present order of things will do to American society as a whole. Lezin dedicates her book to her children, with the wish that “the death penalty will no longer exist by the time they are old enough to understand what it is.” And Sarat’s dedication is almost identical. He hopes that someday his children will “not live in a killing state.”

For their part, supporters of the death penalty, which despite recent surveys that suggest some softening of attitudes still means a majority of Americans, believe they live in a state where lawyers like Bright routinely thwart both justice and the will of the public. For advocates of the death penalty, the reality is that whereas in the past, American society knew how to judge and to punish, the contemporary situation is one of laxity and dereliction. In a sense, they are right. It is startling to page through Scott Christianson’s archival evocation, “Condemned: Inside the Sing Sing Death House,” and see how, as recently as the 1950s, most prisoners condemned to death were killed within a year or two of their sentences. Today, as pro-death penalty campaigners are quick to point out, the process can take decades and almost always takes many years.

Here is an issue, then, that quite rightly engenders moral absolutism. And yet the morality is not as clear as either the abolitionists or the death penalty enthusiasts seem to believe. The abolitionists make much of the fact that the state should not be allowed to kill. But it is armies, and not the death penalty, that enshrine that right and, unless you are a pacifist, it is a fairly non-controversial thing to believe that there are cases when the state should have the right to kill. Moreover, when the case for abolishing the death penalty on moral grounds becomes problematic is in its insistence that retribution has no value. Substitute the name Hitler for that of Robert Alton Harris and the nature of the problem becomes evident.

For the loved ones of the two young men Harris murdered, he was their Hitler. Is it really so morally unacceptable for them to demand vengeance or for the state to insist, because any other solution would be an invitation to anarchy, that it must retain its monopoly of licit violence and thus carry such vengeance as morality demands be meted out in the form of capital punishment?

But the countervailing argument is equally powerful. One has only to look at the faces of the inmates of any death row, faces captured brilliantly in Ken Light and Suzanne Donovan’s extraordinary book, “Texas Death Row” and grotesquely in the United Colors of Benetton company’s pompous, pandering and morally bankrupt advertising supplement, “ ‘We, On Death Row,’ ” to see the justice of the abolitionist insistence that these prisoners awaiting execution are our fellow human beings and that even their death dishonors us.

If there is any common ground to be found at all, it is in the practical rather than the moral realm. Recent events suggest that it will be doubts over the fairness and, more crucially, the possibility of fairness, that will lead to a reevaluation of the death penalty. On Jan. 31, the Republican governor of Illinois, George Ryan, became the first public official to bow to these realities when he announced that he was suspending indefinitely all executions in his state. “Until I can be sure that everyone sentenced to death in Illinois is truly guilty,” he said, “until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection--no one will meet that fate.”

In some ways, Illinois is a special case. Since the death penalty was reestablished there in 1977, more inmates on death row have been exonerated than have been executed. If an innocent person has not in fact been killed, there have certainly been some very close calls. Andrew Porter spent 15 years on Illinois’ death row, at one point coming within two days of execution, before two Northwestern university journalism students managed to establish his innocence. But if the pattern in Illinois has been particularly egregious, it is hardly unparalleled. As Barry Scheck, Peter Neufeld and Jim Dwyer argue in “Actual Innocence,” every death row in the country houses prisoners who may well be innocent and whose guilt is, in any case, open to reasonable doubt.

As lawyers, Scheck and Neufeld gained national notoriety for their work on DNA evidence as part of O.J. Simpson’s defense team. This may lead some who believed that Simpson was guilty as charged to dismiss their claims for the exculpatory potential of DNA testing. That would be a pity, because the scientific evidence is incontrovertible. But as Scheck, Neufeld and Dwyer are quick to point out, even the introduction of DNA testing would hardly rectify the flaws in the current system of capital punishment. As anti-death penalty Connecticut state representative Richard Tulisano put it recently, “As an individual, I acknowledge that people want retribution, but that’s not what the state should be involved with. We’re not God. We do make mistakes. And we’re never going to put up the same amount of money toward the defense as we do in prosecution.”

That is the heart of the matter. Assuming there is a moral justification for the death penalty as, personally, I do, there still can be no moral justification for a system in which it is certain that an innocent person will eventually be executed. And there is no chance whatsoever, no matter how many safeguards are instituted, of creating a system from which that possibility could be excluded. At present, as these books reveal, the debate over the death penalty is largely one in which the two sides talk past each other. But this does not make the issue less pressing, lower the moral stakes or imply that people should turn away and allow the business of death to go on as usual.