Topic: The Law
Jurisprudence and Prudence: Justice in the State Governed by Former Movie Stars
Capital punishment has been discussed before in these pages.
There was the extended discussion of Scott Turow's book Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty (Farrar, Straus & Giroux) way back in mid-October of 2003, and, in late December of that year, The Culture of Death: Who We Should Kill and Why, a discussion of whether Saddam Hussein deserves the death penalty.
Posted on March 7, 2004 was the item Getting Even, a discussion of and commentary on Jeffrie G. Murphy's book, Getting Even: Forgiveness and Its Limits (Oxford University Press).
That item pointed back to an item the previous year by Antonin Scalia, one of the nine on the Supreme Court, an essay titled God's Justice and Ours. Antonin Scalia was sort of saying this - since the death penalty was "clearly permitted when the Eighth Amendment [which prohibits 'cruel and unusual punishments'] was adopted," and at that time the death penalty was applied for all felonies -including, for example, the felony of horse-thieving, "so it is clearly permitted today." Justice Scalia it seems has no doubt that if the crime of horse stealing carried a death penalty today in the United States - he would find that law constitutional. Well, that really is his logic. So if we study history, we could extend the death penalty to those people who practice witchcraft, adultery, homosexuality and, say, heresy? All we need to do is find those particular death penalty laws existing as of November 3, 1791, and re-instate them. Scalia derives his ideas also, it seems, from Romans 13 - government authority is derived from God and not from the people; he asserts his view was the consensus of Western thought until recent times - "a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals." Democracy, according to Scalia, creates problems, "It fosters civil disobedience." So screw it. Well, he's an odd duck.
There was The Company We Keep (July 25, 2004), a discussion of which countries, like us, employ the death penalty. And A Minor Matter (March 6, 2005), opinion on the then recent Supreme Court decision that we really ought not execute minors.
Then there was An Idea Whose Time Has Come (March 20, 2005), a discussion of the idea proposed by a professor of constitutional law at UCLA that not only should we have a death penalty, we should have extended public executions involving torture and pain, and the family of the victim should be the ones inflicting that pain and death - but he doesn't think we will go for amending the constitution to allow that. And then he changes his mind. Maybe the whole idea wasn't that good an idea. In fact, in An Oklahoman Turns European (April 24, 2005) we see the father of one of the victims of the famous Oklahoma City bombing of the Federal Building there is a vocal opponent of the death penalty - Timmy didn't have to die, as he reasons it out.
So it's not as if this issue hasn't come up before.
Anyway, the nub of the matter, as Turow puts it in his book, is that, on the one hand, some crimes, like murder, are so extreme that they require the most extreme retribution. On the other hand, state-sanctioned killing reduces our society to its lowest common denominator, making all of us complicit in the taking of a life.
The basic question? "Should a democratic state ever be permitted to kill its citizens? If the people are the ultimate source of authority in a democracy, should the government be allowed to eliminate its citizens"
Those enthusiastic about the death penalty see it as "a statement of moral value" to be applied widely and often, to say who we are - to clearly show what we just won't tolerate. And there may be some merit in that. But some of us won't tolerate the concept that the state can decide to take anyone's life - as the decision is so often flawed, and even when it isn't flawed, shows something else about us all. We don't like what it shows.
And round and around it goes. But the position here has been consistent.
"It is the job of thinking people not to be on the side of the executioners." - Albert Camus (1913-1960)
But we just did it again, out here in California.
Tookie Williams Is Executed
The killer of four and Crips co-founder is given a lethal injection after Schwarzenegger denies clemency. He never admitted his guilt.
Jenifer Warren and Maura Dolan, Los Angeles Times, Tuesday, December 13, 2005, 2:18 AM PST
The bare bones -
So read Warren and Dolan if you want more detail of who said what.
And too, there's background like this -
This was high drama out here. The racial implications were hanging heavy in the air - the dreaded black gangs had to be stopped, and for some whites, the lawless, hyper-masculine and testosterone-pumped virile (if not feral) sexually-threatening savage black man had to be put down, as you put down an animal. But that bubbled under the surface.
And would there be riots all over Los Angeles as we had when the police who beat the crap out of Rodney King were found guilty of nothing at all? No, this fellow was hardly a goofy innocent. Some screamed he was innocent. Not many were buying that line. He had not been a nice man. He was tried for murder, convicted and sentenced, in 1981, down in Torrance, a bedroom community of aerospace folks (Hughes, TRW, Northrop and all that) just south of the airport and, at the time, a white-bread place if there ever was one. But he would have been convicted in Compton or Watts. The angry in black community did not seem to want to burn down the city over the officially authorized execution of this particular guy. The Times quotes "African American activist" Eric Wattree - "We have to understand, this is our failure taking place here." The day was quiet.
As the Times points out, and as many can see, the theme here was really something else - what they call "society's dueling goals of redemption and retribution."
The argument came down to whether he should pay with his life for what he had done - or had all the writing, the series of books warning ghetto kids away from violence, the brokering of gang truces in Los Angeles and New Jersey, and all the rest, "redeemed him," and earned him life in prison without the possibility of parole, until he died of something other than the state's injections. Last year, after all, this guy's life had been made into a television movie - "Redemption," starring Jamie Foxx. Heck, Desmond Tutu and Snoop Dogg said the man's life should be spared. Joan Baez sang "Swing Low, Sweet Chariot" outside the prison walls hours before the execution, for - excuse the pun - goodness sake. This was high drama out here.
Arnold Schwarzenegger knows drama, or at least melodrama, and, as reported, said he saw no need to rehash or second-guess the many court decisions already rendered in the case. His thumb shot down, just like in the movies. Of course he was on solid ground. Sunday before the execution the state Supreme Court heard the argument that the 1981 trial was "fundamentally unfair" because the prosecutors had failed to disclose that a key witness, Alfred Coward, was a violent ex-felon. They said it didn't matter. The Ninth Circuit agreed the next day, as did the US Supreme Court. Alfred Coward may have been a violent ex-felon, and that should have been revealed, but it would not have made a difference.
So Stanley Tookie Williams is gone.
And the lead editorial in the Los Angeles Times, on newsstands an hour or two after the execution, said, well, It's not about Tookie.
The argument here is that Schwarzenegger should have granted clemency to the guy before, one Donald Beardslee, a convicted murderer executed in January with no big fanfare of any kind. The Times thinks Schwarzenegger should have made it clear that "no one would be put to death on his watch" - as they contend "a civilized society doesn't kill for retribution and should certainly not continue doing so when it's become clear that the judicial system's margin of error is unacceptably high."
Short form: Exacting retribution is uncivilized, and doing it incompetently is even worse.
What they don't mention is every film Schwarzenegger ever made is about retribution - the bad guys get what's coming to them, and no matter how they plead and whimper, they die, spectacularly, and noisily, with music. And there may be collateral damage (the title of one of his recent films, oddly enough), but stuff happens. This is what he knows. This is what made him who he is. He never said he was a policy expert or knew much about governance - he sold himself to the voters as the outsider who wouldn't be encumbered by all that, and what we really needed. What did the Times expect?
The Times says Schwarzenegger turned Williams down "because he does not consider capital punishment to be about our values as a society, but about the merits of the convicted supplicant." The man didn't seem sincere enough? He didn't grovel enough for the Terminator to spare him? Like this is a movie?
The Times position, that that capital punishment is always wrong because it is incompatible with our values, isn't in the script. They say that those who opposed Williams' plea argue that he deserved his fate, "but the people of California don't deserve to play the role of executioner." But that is role we have the script, and Arnold is our man.
We see also there are now 647 folks on Death Row out here, and next up is Clarence Ray Allen, scheduled for 17 January. He's seventy-five, blind and confined to a wheelchair. Can the state keep him alive until the 17th? This should be interesting. Didn't see that one in any of the Schwarzenegger movies.
James Wolcott here voices what may of us in the tiny minority who oppose the death penalty feel at the moment -
Well, that is the bottom line, isn't it? No politician should be entrusted with the power of life and death over his fellow citizens. Yeah, think about those who aspire to politics, with their mixture of idealism and raw hunger for power over others, with their soaring egos and odd insecurities, and with their almost pathological narcissism.
But Wolcott is angry with these fools who are politicians. These are the people who get to say who lives and dies?
But how about this? No government should be entrusted with the power of life and death over its fellow citizens. We, as citizens, are entitled to life - a basic premise. If we do horrible things we can be punished. Grant the government that. But set aside what is called the "ultimate punishment." The government has no right to kill its citizens, as governments are notoriously mistaken again and again, and change their calculation of legal and illegal, right and wrong, as they correct themselves over the long years - and they're artificial constructs of convenience. Don't give them the power to kill their citizens.
Funny, you'd think most conservatives on the right - the less government is better folks - would see this. Ah well.
An aside - France abolished the death penalty in 1981 and you see here, Julien Dray, spokesman for the Socialist Party in France, saying, "Schwarzenegger has a lot of muscles, but apparently not much heart." That's not the point, but it's amusing.
Jeralyn Merritt, defense attorney of note, adds the basic facts here about governments being notoriously mistaken. Since 1973, 122 people in 25 states have been released from death row with evidence of their innocence. She says it's time for a moratorium. And she quotes Supreme Court Justice Brennan from 1994 - "Perhaps the bleakest fact of all is that the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent."
Also noted there, Sean Paul - "What requires more courage: revenge or forgiveness?"
What plays better politically?
And Susan Hu -
And from Jeralyn Merritt's own memorandum to Schwarzenegger -
Note these last two items presume one of the jobs of government is to provide hope that things will be better. That's a "progressive" view, not a conservative one. It is well beyond obvious the conservative national government of Bush-Cheney-Rumsfeld operates on a far different premise - we're in deep danger and could all die and you should be very afraid and keep us in power to protect you. Mercy? Healing? We may have to torture people to keep you safe, and you really don't want to know about that. It's a cruel world and there is pure evil and there is no way you can think what is pure evil can ever change, or think those who perpetrate evil deserve anything less than horrible pain or death, as it's us or them.
Hell, Arnold Schwarzenegger is just a minor George Bush, with a different accent, but just about the same language skills, the same analytical skills, and the same distain for complexity. The political strategy is the same - keep up the level of fear and show you are eliminating, in one way or another, the evildoers you have made into cartoon bogeymen.
But that really does work.
By the way, Amnesty International here takes a completely different approach to the issue, pointing out the logic problem -
Hey, Arnold, you say you trust the courts got it right and your own commission says they often just don't get it right. What up with that?
Finally a good read is Jeanne over at Body and Soul telling us here how she tried to explain this all to her young daughter. The kid is confused about how it makes sense that when someone kills someone else we show that is really bad by killing them. Yeah, kids are a pain sometimes. She suggests there are leaned behaviors at play here -
Maybe so. But we seem to have done that.
As Steve Lopez of the Los Angeles Times, who actually witnessed the execution, suggests here, this was a "macabre spectacle in a nation that preaches godly virtue to the world while resisting a global march away from the Medieval practice of capital punishment." But he was okay with it - as were most people.
It should be noted the next controversial death penalty case where there is a question of whether clemency should be granted is not the one out here with the seventy-five-year-old blind man in the wheelchair. This one concerns one Cory Maye of Jefferson Davis County, Mississippi.
Here's a quick summary -
Well, he was convicted of first-degree murder, given the death penalty, and scheduled for execution.
Read all about it here - all the details and lots of links. The local police mistakenly break down the door of a sleeping man, late at night, as part of drug raid. But the man wasn't named in the warrant, and wasn't a suspect. The man, frightened for himself and his infant daughter, fires at an intruder who had just rushed into his bedroom after the door had been kicked in.
The man, who is black, has just killed the white son of the town's police chief. Oops. The police apparently beat Maye pretty comprehensively after he was arrested. And he's summarily convicted and sentenced to death by a mostly white jury. The man has no criminal record, and police changed their story about finding traces of drugs in his possession at the time of the raid. They turn up the next day, oddly enough.
This should be interesting.