On September 21, 2011, two American men, both in their early 40s, were put to death by order of their state government. One death provoked much discussion; the second was widely ignored. However, it is that second death that matters should we as a nation – or as a collection of states – decide to eliminate the death penalty for good and for all.
Outside of Georgia’s Jackson Prison, opponents of the death penalty gathered to hope, pray, and pay witness to the long death of Troy Davis. Mr. Davis was convicted of killing a police officer, Mark McPhail, in 1989. Whoever the killer was did a dastardly deed. And Mr. Davis was, according to the courts, that man. Over the years there came to be real doubts as to whether he was, in fact, guilty. The case depended largely on eyewitness testimony, and since the trial most of those eyewitnesses changed their stories. Perhaps Mr. Davis was not guilty of this crime.
No one, whatever stance they take on the legality of the death penalty, wishes for the state to kill innocent men, letting the real killer go free. Still, Mr. Davis had twenty years of appeals, and he never found a judge or parole board that was persuaded of his innocence. Shortly before his death, the Supreme Court, without dissent, refused to stay his execution. And it was done. Perhaps we must establish a more robust level of proof and be more modest in our certainty. Without doubt Mr. Davis came to be an impressive advocate for his own innocence. He wanted to live. However, shortly after 11:00 on the night of September 21st, he was put to death by lethal injection. CNN’s Anderson Cooper covered the death watch with inspiring intensity, raising issues of Mr. Davis innocence and also the justice of the death penalty.
Eight-hundred miles west of Jackson, in Huntsville, Texas, another death occurred, quietly and without network klieg lights. Whereas Mr. Davis’s death came with complications over his possible innocence, for most observers the Texas death lacked much in the way of factual doubts. That same Wednesday evening, the state of Texas, also using a lethal injection, put to death Lawrence Russell Brewer. If the death penalty is to be eliminated, the American people must determine that the lives of people like Lawrence Brewer – no, not people like Mr. Brewer, but he himself – must be spared.
Perhaps Mr. Brewer had his fifteen minutes of fame at the time of the murder for which he – as one of three – were convicted, but those minutes had long passed. Lawrence Brewer was found guilty of involvement in the ghastly murder of James Byrd. Back on June 7, 1998, Mr. Byrd, walking along a local road in East Texas, was grabbed, beaten, chained, and then dragged for two miles behind a pickup. In the process he was beheaded. Brewer remains an unrepentant white supremacist and admits some involvement in the events of the night, but he denies being the killer, although he also claims that he would do it again. However, his involvement is certain and his politics – if such is the proper term – is dark and fraught. There was no vigil for Mr. Brewer. He died unmourned. He was no figurehead of unjust justice. Yet, if the death penalty is to be abolished, it is not only the articulate Davises that will live their full years, but the angry Brewers.
In stark contrast to Troy Davis, Lawrence Brewer, in spite of his claims of innocence for the murder, supports the death penalty. The question is, should we? It is hard to deny that over the decades, the death penalty has put some innocent men to death. While we now have instituted an elaborate system of checks as to legal procedure, we often don’t include the possibility of exculpating facts. And that is wrong. Further, many murders are fairly routine, as was that of the police officer whom Davis was accused of killing: they dismay, but do not outrage.
But there are some acts, and the death of James Byrd is a case in point, that call for a collective performance of disgust. The death penalty is not about the killer, but about the society that firmly announces that this must not stand. In our resolve we must not act “as animals,” lusting for blood or applauding the killing, but as a community that announces that some do not to remain in our midst. These deaths stand as a recognition of the possibility of evil.
In 1996, President Bill Clinton said of abortion, “It should not only be safe and legal, it should be rare.” I apply his model to state-sponsored death. The death penalty should be humane, it should be possible, and, most of all, it should be rare. The dramatic differences in the justice of the deaths of Troy Davis and Lawrence Brewer underline that only in extraordinary cases, horrific and unambiguous, death is not a blow at humanity, but a basis of that very humanity.
The New York Times asserted that the death penalty is indefensible. http://www.nytimes.com/2011/09/26/opinion/an-indefensible-punishment.html?_r=1&partner=rssnyt&emc=rss
Fine proves them wrong. It can be sensibly justified, as Fine does here. I still am against the death penalty as a matter of principle and political commitment, but it is wrong to assert that your opponent can’t make any sense.
I find it difficult to argue that in all cases, without exception, the death penalty is indefensible. At least I would say it should certainly be rare, very rare. Yet according to the Death Penalty information center, there have been 1270 executions in the US since 1976. That means every ten days in the US someone is executed. Not really my definition of “rare.”
Fine’s case, the only reasonable one that I know of, for the death penalty requires that it be very rare, and it would seem that Americans are not likely to do that. The blood lust that has been apparent at moments during the Republican debates and the statistics Scott quotes are humbling. Fine’s is an interesting theoretical exercise, but I am not sure it is more than that.
What is the specific, universal principal according to which Brewer’s execution is defensible? That his crime was heinous? That we’re really sure he did it? Neither of those principles forecloses the possibility of abuse.
More importantly, Fine argues that, “These deaths stand as a recognition of the possibility of evil.” I don’t think anyone denies the possibility of evil. The problem is when we try to externalize it, and claim that we have the absolute and infallible capacity to identify it in the Other, to isolate it, and to snuff it out. No good has ever come of that.
What purpose does the death penalty serve? Is is prevent other crimes? If so, it doesn’t seem to have much of an impact? Is it for retribution or revenge? If so, the cathartic moment only lasts for an instance? Is it for cost control? If so, with all the steps in the appeals process, this may not make sense either unless it is carried out swiftly. I’m still not sure why in the worst of cases, life at hard labor isn’t a better deterrent, satisfies those looking for vengeance, and allows for the possibility of correcting wrongful convictions.
Oops, i mean principle, sorry.
death penalty recognizes the possibility of evil, but it necessitates the belief that evil originates in a very particular place- the soul of an individual. this is a convenient place for us to lodge evil because it excuses the rest of us. it pardons us for all our momentary inklings of discrimination or hate or violence: “at least we’re not like that!” As we condemn another’s soul as evil, we pat ourselves on the back for our righteousness. It’s a moment where we can forget that evil is lodged in a social context, a context which like it or not we’re all a part of. But thanks to the death penalty, we can assert the evil of the bad apple without imputing anything about the barrel. phew. i will sleep easy knowing that only a very very rare apple is bad enough to be thrown out.
this is one of those issues that remains outside real political debate because the vast majority of the population support it. This could change if they are presented with persistent evidence, from every angle, of why it is wrong, imperfect, kills innocent people, does not actually deter crime etc. But we will never get at why it should or should not be if we consider its’ victims. The details of James Byrd’s killing are so horrific that any non-Nazi would/can enjoy a moment of enjoyment thinking about his killer being put to death—- but that should remain fantasy. And think about it— the killer made no apology and the family of the man asked for mercy, for no more killing; they knew that revenge would be hollow. Maybe, if we let the killer live long enough in some cell, rotting in a loveless life, he might feel contrition and/or guilt. Maybe not— but would not that be the real payback? To force someone to live everyday a lifeless life with the deed they did. I am slightly incoherent—- but I believe the death penalty is always wrong. It may be the one kantian moral demand I can follow. There should never be state sanctioned killing. Ever. And who knows, we may change public opinion on this. And I know the argument that it would be fine IF it could be applied fairly but it cannot so therefore it is not fine. That is not an argument— it is a way of getting around the thorny issues of race and class and legal representation. There is no such thing as an abstract death penalty. Nothing is more concrete.
Michael Corey has a point, when he asks what is the death penalty for? Gary Alan Fine does not address this at all in his article, instead he makes underlying assumptions. “In our resolve we must not act ‘as animals,’ lusting for blood or applauding the killing, but as a community that announces that some do not to remain in our midst. These deaths stand as a recognition of the possibility of evil.” – yes, but out of this does not follow the death penalty. People in prison are removed from our midst already. The death penalty does not add anything, unless it has another function, which for me is the underlying problem of the argument. Basically, Gary Alan Fine applies the principle of Foucault’s “Discipline and Punishment” – unfortunately in the medieval sense. Brewer’s crime attacks the foundation of society and the only reaction is disgust? That reminds me a lot of Foucault’s analyses of the drastic punishments of crimes that challenge the authority of the prince. We should be better than that, because I thought the justice system is not about revenge or equal punishment according to the crime. If it was about this and the goal of the death penalty was to show disgust, than the method of doing it a few years later, more or less out of sight of the public, does not really do the job. If it was to prevent future crimes, than the method is also false: It should be as public and brutal as possible (I am not promoting this, but it is kind of the logical consequence). What I want to say is that there is no reasonable argument for the death penalty on the basis of the principles of our society and justice system. The death penalty is an abnormality that refers to principles of revenge, victim’s retribution and making a wrong right by applying a penalty that has the same effect as the crime.
The death penalty, it seems to me, is a process involving a series of deaths. First, the private person is “killed” and then the remaining person becomes a public object. As a public object, the shell of the person is humiliated and emotionally mortified for years prior to the actual end point, the execution, a semi-public event. At this point, the state seems to treat it like a disposal project during which as much fear is created as possible, and sometimes with significant amounts of pain inflicted. We actually treat the euthanizing of our pets more humanely than the condemned in an execution. Participating in this process must take its toll on everyone involved, and there does seem to be certain amount of pleasure extracted by killing the condemned in this manner, otherwise other things would be done.