Okay, the wordplay in the title reflects some of the trickiness of judicial killing and our deepest motives.
The execution of Troy Davis in Georgia for shooting an off-duty policeman defied international appeals for clemency. It also shrugged off palpable evidence that the original prosecution was faulty, with seven of nine witnesses to the shooting later recanting their testimony. Or consider this: "Ignoring its own ruling that prohibits the execution of mentally retarded individuals, the United States Supreme Court on Tuesday rejected the appeal of a Texas man with an IQ of 61 convicted of murdering a police drug informant." The man being put to death, Marvin Wilson, was a bullseye for conventional fears: a black guy, poor, drug-involved, no wedding cake or picket fence, called 'Dummy' all his life. He may or may not have killed a drug snitch. We can't be sure.
What interests us here is what sort of work the judicial killing is doing for the rest of us.
There are plenty of procedural grounds for mistrusting capital punishment. And cognitive studies have shown that the testimony of witnesses under stress is often unreliable. The historical record of course shows a disproportion of death sentences pronounced on black defendants, which would make us feel guilty if it were not for the beauty and grace of our denial.
But there's more: deeply pernicious yet unaccountable psychological distortions that bear on judicial killing too. The religious convictions of judges and juries may powerfully shape their behavior yet remain beyond examination. Religious beliefs are euphemized or ignored in public discussions—too hot to touch. In any case, they're likely to be complex, nebulous, and to some extent unconscious.
Troy Davis and 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.>>[i]
“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.
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.” The judge 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.
This is more military than scientific thinking. It favors notions of cleaning the slate or wiping out evil. It's incipiently exterminatory. If you're terrified of death, consciously or not, then only radical killing can "clean up" this conficted world. The judge is a long way from the New Testament Beatitudes. In this sense his thinking is hypocritical or self-deluded in a poignant way, since like most of us, presumably the judge needs denial to assuage those gripping fears of death and disorder all flesh is heir to. Though the difference, come to think of it, is that Judge Scalia has the power to put us to death and therefore, ideally, has more courage and wisdom than we do.
I'm well aware there are monsters out there. I became resolutely opposed to judicial killing after blundering on an (illustrated) history of capitol punishment in junior high school. In my case, the details of actual executions gave me a visceral horror of panic and rage—and of the delusions used to rationalize atrocity. The official euphemisms used to disguise the killing has always struck me as childlike and disgusting. The actual behavior, historically, has used genius to inflict maximum pain, often with infantile fears (cutting off witches' breasts, stakes up the anus in Munich in 1600, say), and ruthless mental battering.
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 police? 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 and an embarrassingly feckless appeals process. [ii]
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.”[iii]
From Clarence Darrow to the Justice Project, many have challenged the death penalty, and for good reason. Recent advances in DNA testing and honorable persistence by investigators have set free so many wrongly convicted prisoners that some states have moved to suspend judicial killing. Not surprisingly, prosecutors who would feel guilty for their past mistakes, sometimes fight like tigers to deny hard proof of innocence. We are frail animals, pal. And a thorough reexamination of the death penalty is long overdue, not only to bring into the light the failures of police and judicial behavior, but also our own profound creaturely motives.
[i] Antonin Scalia, “God’s Justice and Ours,” www.prodeathpenalty.com/scalia.htm
[ii] David Grann, “Trial by Fire: Did Texas Execute an Innocent Man?” New Yorker, September 7, 2009, 51. The first condemned man freed by DNA evidence was Kirk Bloodsworth, in 1993. For good reason the Federal government helps fund DNA testing provided for in the Innocent Protection Act, though the protection cannot be comprehensive.
[iii] John Paul Stevens, “On the Death Sentence,” New York Review of Books, December 23, 2010.
As usual, a tip of the hat to Ernest Becker and the Becker Foundation, whose blog the Denial File hosted some of this material. See also "Rage for Order" in my Berserk Style in American Culture (2011).