The American public is deeply ambivalent about capital punishment. On the one side of the issue are those who think that our social development is linked to giving up capital punishment, i.e., we will not advance as a society until we give it up. On the other side is the deep seated rationality in all people (I conjecture) that when you maliciously take a human life, you have broken a contract with the rest of us which secures your right to life.
The people with the former position have been trying to win the argument by axiom. Among the axioms used have been
- it is morally wrong;
- it is impossible to fairly adjudicate;
- it is inhumane.
People with the latter position are left to argue a position of responsibility against a rights position, which is never an easy task. Part of the problem is that we don’t have the language to describe a position of responsibility except as it relates to securing rights.
Elizabeth Weil seems to support the former argument more than the latter, I think.
On a warm spring day last June in Kansas City, a doctor identified only as John Doe No. 1 sat behind a screen to testify in the case of Michael Anthony Taylor v. Larry Crawford on his practice of executing prisoners by lethal injection for the State of Missouri. To protect the doctor’s identity, only five people were in the room — the judge, one lawyer for each side, the court reporter and John Doe No. 1. The Taylor case, which is still going on, pits a murderer against the director of the Missouri Department of Corrections. That afternoon’s testimony was widely considered to be the end of the legal rope for Michael Taylor, who was awaiting execution for one of Kansas City’s most notorious crimes: he had kidnapped Ann Harrison, a 15-year-old honor student and flutist, from a bus stop at 7 a.m. on March 22, 1989, raped her and stabbed her through the heart, lungs and throat. Nobody was contesting Taylor’s guilt or even the death penalty. On trial was the legality of the way lethal injection is being carried out, on the grounds that it violates the Eighth Amendment ban on cruel and unusual punishment.
What has been lost from this discussion is that the Eight Amendment was originally designed to limit the things a State could do to its citizens. It was written in the shadow of the time when the State, acting under the influence of religion, had too readily abused citizens. The Salem trials had taken place less than a 100 years before the writing of the Constitution. It was clear to the people then that the State could go too far in punishing people. Remember that the guillotine was invented as a more humane for of execution in a time when the headsman could miss his mark. It is now looked down on as barbaric, but that was not how it was intended.
Weil’s article talks about the imperfections of execution methods and the unwillingness of doctors to participate in death by lethal injection. I think that if queried, she would say that she was writing an article about how problematic it is to institute a system of execution. I think also that she has a bias and it is revealed in the last paragraph:
Austin Sarat, the Amherst professor who has tracked the history of the death penalty, speculates that states may grow tired of trying to solve the puzzle of a humane execution. “The European path was de facto abolition before de jure abolition,” he told me. “So maybe what happens is we just stop using the death penalty very much, and it gradually withers in ways that make more and more places resemble Pennsylvania — lots of people on death row, very few executions. And at that point, maybe we look around and realize we can live without it.”
We have a responsibility to each other not to take lives maliciously. When that responsibility is abrogated, it is the responsibility of the rest of us to deal with it. The problem we now face is one of hypocrisy in that many people who nominally support the death penalty are unwilling to perform it. I think this issue will be resolved when that hypocrisy is faced.