Nobody likes to think that innocent people might be put to death in a nation whose leaders are getting comfortable with the legitimacy of torture and military tribunals. Even hardcore advocates of the death penalty strongly prefer to see guilty people die. Troubled observers rightly grumble about procedural faults in death penalty cases. But rarely does the public think out loud about the amazing susceptibility of death-penalty jurisprudence to the irrational depths of so-called normal life. We see pretty clearly the incongruities and lunacy in some other legal systems – Saudi religious courts, or politically warped Soviet justice, say. But it’s not so easy to recognize the pressure of absurdity in our own “natural” rightness.
The execution of Troy Davis in Georgia for shooting an off-duty policeman defied international appeals for clemency. It also discounted evidence that the original prosecution was faulty, with seven of nine witnesses to the shooting later recanting their testimony. There are ample procedural grounds for mistrusting capital punishment. And cognitive studies have shown that the testimony of witnesses under stress is often unreliable. To make matters worse, the historical record shows a highly suspect disproportion of death sentences pronounced on black defendants.
But there are deeply pernicious yet unaccountable psychological distortions that bear on the process too. The religious convictions of judges and juries are bound to color their judgment yet they’re usually unaccountable. Religious beliefs are euphemized or ignored in public discussions, and are in any case likely to be complex, nebulous, and to some extent unconscious.
At the last minute Troy Davis appealed for a stay of execution to the Supreme Court, which declined to intervene. The present court is well known for its political appointments and historically novel decisions. In 2009, Supreme Court Justice Scalia declared that “this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Yet beyond this peculiar, if not tortured reasoning, there are other, no less problematical forces at work.
Justice Scalia, for example, uses morally charged and unaccountable beliefs to justify capital punishment. Though ostensibly a “strict constructionist” in constitutional law, the Catholic Scalia maintains that for the believing Christian, “death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: ‘Friend, be not afraid of your office. You send me to God. . . .’ For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act! Besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will–the ability of man to resist temptations to evil, which God will not permit beyond man’s capacity to resist–is central to the Christian doctrine of salvation and damnation, heaven and hell. The post–Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.”
“Death is no big deal” unless of course you happen to be wrongly put to death. The justice reduces the bewildering variety of religious experience to “the Christian” and attacks a straw man, the “post-Freudian secularist.” In this rhetoric Christian theology shrinks to a historically shadowy anecdote used by a dramatist in a popular hagiography. Murder is terrifying–“a horrible act!”–yet in theory Christian murder victims achieve bliss with God, so the rhetoric boxes in deep ambivalence. Scalia’s Gospel sees no incoherence here and has no room for Christian mercy.
The justice is weighing the power to kill accused individuals, but his argument refuses to contemplate actual behavior. Its stereotypes foster psychic impunity by polarizing categories and ignoring the quality of evidence. At no point does Scalia acknowledge that he is talking about faith in immortality that by definition is beyond any rational standard: and that such faith could be used to legitimize judicial murder or a genocidal crusade. At the same time he imagines that all murders are deliberate acts, ignoring the roles of panic and accident, not to mention organic dysfunction. Operating in an anti-psychological intellectual zone, the man never considers that the terror of annihilation might be driving his take-no-prisoners convictions about immortality, or that a judge’s magisterial courage might be at bottom tragic denial.
Rage for order is both a behavior and an idea about behavior. Justice Scalia, for instance, is attracted to the idea of punishment: “the Christian is also more likely to regard punishment in general as deserved.” He imagines a world cleanly divided between the righteous and the damned; believers and nonbelievers, Christians and “Post-Freudian secularists,” and so on. In this mindset the deep structure is melodrama. Differing imaginations don’t overlap, wonder at the infinite varieties of creation, agonize over how to get at the truth, or rue our tragic inadequacy (“God will not permit [temptation] beyond man’s capacity to resist”). Social life is not a matter of trade, negotiation, mutation, and adaptation, but rather an adrenalized struggle to identify and punish, empowered by a conviction of godlike invulnerability.
The issue is not whether judgment will exist, but what form will it take? How much is enough? Who gets to judge? On what evidence? And who will police the system? History groans with mass movements and cults that have thrived on predatory righteousness. The self-intoxicating effects of moral aggression stand out in Philip G. Zimbardo’s famous Stanford Prison Experiment, which had to be halted early when student volunteers in the roles of prison guards began slipping into sadism and the inmates’ depression became self-confirming. But this was only an experiment, not the living horror of a false conviction and judicial murder–the likely fate of people such as Cameron Todd Willingham, whom Texas officials put to death in 2004 despite demonstrably faulty evidence, a feckless appeals process, and now a brazenly manipulated coverup by a governor who has become a national candidate for president..
In his retirement, with moving humility, Justice John Paul Stevens abjured his support for the death penalty decades before. Reviewing reasons that capital punishment is “unwise and unjustified,” Stevens called attention to the creaturely motives underlying American cultural practices that make the law perverse, quoting the argument of David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition (2010). Not only is the death penalty not a deterrent to crime, it actually promotes “gratifications,” of “professional and political users, of the mass media, and of its public audience.” With its demonstrable racial biases and its role in the Republican party’s “southern strategy” as well as in the post-Vietnam “culture wars,” capital punishment has served political ends. But beyond these motives, even beyond revenge, Stevens and Garland see at work “the American fascination with death”–specifically, the “emotional power of imagining killing and death. [Garland] concludes that “the American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.”
From Clarence Darrow to the Justice Project, many have challenged the death penalty, and for good reason. But a thorough reexamination of the death penalty is long overdue. It needs to bring into the light, for all to see, not only the difficulties that compromise capital punishment in action, but also its profoundly fallible roots in mental life.
Here in the bar, on the mirror behind the glittering bottles, you can still make out the worn gilt letters of the old advertising slogan, “Primum Non Nocere.”
Bottoms up, pal.
(This argument draws on Kirby Farrell’s Berserk Style in American Culture : <<http://people.umass.edu/kfarrell/Berserk_Style_in_American_Culture.html)