Our crime against criminals is that we treat them as villains.—Friedrich Nietzsche, 1898
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. The reasoning was somewhat different in each case. 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.”
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).
To be in the company of Iran and China and Sudan as a leader among states conducting execution—and to have pioneered the medicalized or euthanized form of it that is now added to the panoply of gassing, hanging, shooting, and electrocution and known as “lethal injection”—is to have invited the question why. Why is the United States so wedded to the infliction of the death penalty? I have heard a number of suggested answers: two in particular have some superficial plausibility. The first is an old connection between executions and racism, and the second is the relatively short distance in time that separates the modern U.S. from the days of frontier justice.
Massacre of the Innocents, by Pieter Brueghel the Elder, 1565. Royal Collection Trust © Her Majesty Queen Elizabeth II 2014.
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 ultrawhite Timothy McVeigh off the planet).
Our historic proximity to the wild-and-woolly days of yore won’t quite elucidate the phenomenon 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.
It took me some time to notice where this process of elimination was leading me. For example, as I once found myself arguing, the state of Michigan has a provision in its founding constitution that forbids capital punishment. Yet high as the rate of violent crime is in Michigan, it is not noticeably worse than in neighboring and somewhat comparable Illinois (where former Governor George Ryan was not long ago compelled to impose a moratorium on execution, it having been discovered that there were more innocent than guilty people on the state’s death row. You know how that can upset people….) Thus, as I was going on to argue, there is no reason to suppose that the death penalty is a deterrent. And then it hit me. I had been hammering on an open door. Nobody had been bothering to argue that the rope or the firing squad, or the gas chamber, or “Old Sparky” the bristle-making chair, or the deadly catheter were a deterrent. 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. (Take away only China, which is run by a very nervous oligarchy, and the remaining death-penalty states in the world will generally be noticeable as theocratic ones.)
Once we clear away the brush, then, we can see the crystalline purity of the lex talionis and the principle of an eye for an eye. (You might wish to look up the chapter of Exodus in which that stipulation occurs: it is as close to sheer insane ranting and wicked babble as might well be wished, and features the famous ox-goring and witch-burning code on which, one sometimes fears, too much of humanity has been staked.) 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. (You might remember the scene in Doctor Zhivago when Strelnikov says that the peasants understand who is boss once their village has been burned, whether they had been harboring the enemy or not. “Your point: their village,” is Zhivago’s sickly and bleeding-heart reply.)
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?
Here, I think, we come up against the old problem of perfectibility and predictability. We cannot know in advance which malefactor, pre-emptively 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.
“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.