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.
“The machinery of death,” indeed, was the phrase employed by Justice Harry Blackmun in stating his reasons for believing that the system of capital punishment was essentially beyond reform, and needed to be ended, not mended. 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. But in a modern state that allows for appeals, judicial review, and the admission of new evidence, the death sentence is only the beginning of a protracted and tortuous process to which we give—and I apologize for using the expression myself—the apotropaic name of “Death Row.” At once too random and too institutional and systematic, this dire business has now become an offense both to law and to justice.