Without the will to punish

Lethal injection chamber at San Quentin State Prison

The death penalty is an odd animal in the 21st century. It’s not that there is a shortage of violence and cruelty today, rather that nations try all they can to classify their state-sanctioned as something besides capital punishment. “Counter-terrorism” has the same outcome- dead accused criminals- but most states that have counter-terrorism units do not have the death penalty. Fundamentally, it seems that most societies have an issue with killing an unarmed, detained person, even if they are morally reprehensible. In political science there is the democratic idea- that even authoritarian societies feel an obligation to act democratic in structure. There is also the abolition idea- where brutal societies still feel the need to formally outlaw capital punishment.

A supermajority of Americans favor the death penalty as an option in murder cases. The question is asked at a general level, which is why I think it’s so high. Many polls ignore the mechanics of the death penalty- how does the justice system condemn people, and how does the state kill them? Popular support is premised on the death penalty being by lethal injection, and this lethal injection being perfectly quiet, hidden, and efficient.

Recent campaigns by anti-death penalty activists against lethal injection have been immensely successful. Created deliberately to avoid the criticism leveled at its predecessors, the three-drug system of anesthetic, paralytic, and an acid to stop was rapidly made unusable through international norms against producing chemicals for use in executions. As explored on the episode “Cruel and Unusual” by WNYC’s More Perfect podcast, Maya Foa from the British organization Reprieve has engaged in a worldwide skirmish with US states seeking lethal injection drugs. Manufacturers were often misled about the use of the chemicals they synthesized and exported, and the European Union has specific bans in supplying executions.

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From Death Penalty Information Center (DPIC): http://www.deathpenaltyinfo.org/innocence-and-death-penalty#inn-yr-rc


The inability to get drugs should not be surprising, and it underlies a central paradox. In order to soothe the conscience of the public, lethal injection is punishment through medicine. Pharmaceutical companies produce drugs to heal, and are compromised when asked to provide the same drugs to kill. Despite looking very similar to a hospital, the American Medical Association bars physicians from participating in any capacity. As pro-death penalty Professor Robert Blecker of NYU Law says, it is baffling that an execution has many of the same features as us sitting bedside with our dying relatives.

Botched executions have shown that lethal injection is only ideal in an imaginary, perfect world. The paralytic used as the middle drug serves no actual purpose, but to mask how incredibly painful it is to have acid eat your heart if the anesthetic doesn’t work. The process meant to cover its tracks in a way electrocution and hanging never could.

The conservative claim is that activists have ruined the foolproof lethal injection protocol with their work informing chemical companies. But really there is no foolproof plan, and further scrutiny has shown lethal injection to be far more arbitrary and unstable than many would like to believe.

Returning to the beginning: how hard is that 61% of Americans who support capital punishment? If our society had to end the medical façade and go back to capital punishment, would there still be 61% with their hands still up? How many states would have a majority in favor?

In 1851, a huge crowd gathered to watch the first execution in Wisconsin since it gained statehood. John McCaffary had been convicted of drowning his wife. His hanging was botched, and 3,000 people (1 in every 100 state residents at the time) saw him gasp as he was slowly strangled to death. It took twenty minutes for him to be declared dead. The first execution in Wisconsin turned out to be the last, and in 1853 the state abolished capital punishment. Even on the frontier, even in the 19th century when we all assumed people were a bit more Old Testament, being exposed to the consequences of state-sanctioned killing was a transformative experience. Vengeance is unsatisfying. An eye for an eye is not always the best recipe.

In the rationalized modern society we live in, we are shielded from processes we support in the abstract, but would be unable to stomach up close. Most people eat meat, but how many would if they had to kill the animals themselves? Detachment is a luxury; with meat it is a class divide: the commoner’s sheep is the aristocrat’s mutton.

It seems that if a society can only use its greatest punishment at a distance, and has to disguise its vengeance with medicine and the pretense of mercy, it should have nothing to do with killing. The system has twisted itself in knots because, fundamentally, there is no majority that wants to bear witness to this type of justice in its full, uncensored form.





Thomas Paine: an always-relevant radical

The birthday of Thomas Paine just happened, January 29th on the Julian calendar. But since he doesn’t turn 279 years old until February 9th on our Gregorian calendar, there is still time to pen a retrospective!

As a political figure, most Americans learned in middle school US History that he wrote something called Common Sense, and it was a big deal when everything was starting to pop off in the Thirteen Colonies. The trajectory of his life after 1776 showed how different his political philosophy was with the bulk of Founding Fathers. A feature in Jacobin written last year emphasized that until his relatively recent rehabilitation, Paine was the icon of rogues and radicals only. If the establishment hated you because you wanted to abolish slavery or have a trade union or whatever, you probably looked to Paine as a source of wisdom.

Paine, before injustice gave him grey hair. Portrait by Matthew Pratt

What stands out with Paine, and makes him a superior model compared to fatally compromised thinkers like Jefferson, Adams, and Madison, is his consistent denunciation of all systems of exploitation. His argument in Common Sense was for independence, yes, but it was more importantly an argument aimed directly at the monarchy and aristocracy. Many Founders fought a war against a monarchical colonial power, but they weren’t necessarily republican in their thinking. The Declaration of Independence is an indictment of a particular king; Common Sense is an indictment of the whole idea of kings. Indeed, there was much ambiguity about the new American executive initially, with many wanting Washington to become king, or at least king-like. Gordon Wood talks about this aspect of the early republic, additionally his chapter “A Monarchical Republic” in Empire of Liberty is a summation of how conservative many Founders and Framers were about the break from hereditary rule.

So even in this first step, Paine was outpacing most of the other Founders. After colonial rule, he took on a whole spectrum of society. He went after the institutional church in The Age of Reason. He defended the democratic revolution in France, almost ending up a casualty in the purge-y portion. Agrarian Justice is the most substantial critique of private property and institutional privilege of its generation. He was one of the early abolitionists. And he stood against the majority of the National Convention that wanted the King executed- because he saw the death penalty as another archaic injustice not suited for a democratic age.

Indeed, Paine’s consistency is refreshing. Not only compared to Jefferson’s incoherent views on freedom and slavery in his own time, but today. Many people call themselves lovers of liberty, but only advocate for a part of Paine’s philosophy. Conservative Americans love the talk of liberty above tyranny in Common Sense, the irreligious enjoy the broadsides against Christianity in The Age of Reason. And it’s easy for liberals to like Paine’s argument for a welfare state in Agrarian Justice. Of course, this was the case in his own time- he was loved and reviled by the same people at different times. Even today, with many progressive developments, Paine remains radical. Where other Founders have calcified into marble, his fight is not yet finished.

Paine seemingly never wrote anything that didn’t make at least some powerful people mad.

The living character of his writing made him one of the few figures that benefitted from 1960s-era historical revisionism. In my generation, the pedagogy of the Founding has been complicated- how can the Virginia planters that dominated politics be lauded, when their leisure was the result of human bondage? Even now, the critique is hesitant and usually after-the-fact. Paine is in full color, waiting to be embraced.

So I believe that the question of Paine’s place in the traditional Founders isn’t worth debating. He fits in with the Founding Fathers that represent the rest of the spectrum of the American people. Harriet Tubman. Sojourner Truth. Frederick Douglass. Lucretia Mott and William Ll0yd Garrison. And even John Brown, who despite his troubling nature still was willing to die to make “all men are created equal” something other than a statement of hypocrisy. Their revolution was about more than white men and their property rights. I suggest a promotion to hang out with a much more fitting pantheon.

Worth and dignity, even the condemned

Yesterday Kelly Gissendaner was killed by the state of Georgia. She was a member of the Church of the Larger Fellowship, the Unitarian Universalist organization for the imprisoned, isolated, and far-flung people searching for truth and meaning. Her history and beliefs are very different from my own, but she is one of many people convicted of serious crimes who devoted herself to transformation in part due to the publications and work of the CLF.

As a Unitarian Universalist, the first principle of the faith is “the inherent worth and dignity of every person”. That includes those condemned to die. There is no justice to be won by the State engaging in murder and calling it justice.

Mario Cuomo’s one amazing sentence on the death penalty

One of Mario Cuomo's many vetoes of bills to reinstate the death penalty in New York.
One of Mario Cuomo’s many vetoes of bills to reinstate the death penalty in New York.

Mario Cuomo is gone. We are left with a rich legacy, and his loud, hypocritical bully of a son. I was reacquainted with him last year, as Ken Burns uses his young sports dreams as emblematic of New York Italian-American identity in Baseball, which I finally got around to watching. To some extent he has to be compared (and contrasted) with Ted Kennedy. Liberal icons from the Northeast, who could of but did not end of being President. Both were active in a political era characterized by the gutting of labor and welfare. I preferred Cuomo’s personality and he’s my kind of politician. But both are now gone, and the players in American liberalism are relative newcomers.

Cuomo was probably the best high-ranking voice against the death penalty, with about a dozen yearly vetoes of bills introduced to bring back capital punishment in New York. His statement with the 1991 veto is perhaps the best succinct statement of why the death penalty is profoundly wrong:

“The death penalty legitimizes the ultimate act of vengeance in the name of the state, violates fundamental human rights, fuels a mistaken belief by some that justice is being served and demeans those who strive to preserve human life and dignity.”

Couldn’t have said it better myself, Mario.

Beware the zero-sum worldview

Human nature is complex. Even if we do have inclinations toward violence, we also have inclination to empathy, to cooperation, to self-control.
                                                                Steven Pinker

A little more than a year ago I wrote a short post about viewing life as transformative as opposed to transactional. Those who embrace transformation use experience and social interaction to build something new. Transactional personalities focus on maintaining the present.

I came across this contrast in terms of personal worldview and the potential for self-improvement. Its main context is business, with the idea that traditional leadership is transactional while new, better leadership is transformative. However, since that original post I’ve come to see these two ways of interacting with the larger world as important. Not because I think it divides people into good or bad; instead, it helps show the difference between static and dynamic personalities.

If you think of a transactional individual as viewing social life in the way an accountant views her ledger, all movement and apparent growth is an illusion. Give money to a friend, and they must always pay it back. Suffer an insult or damage, it must be compensated for by the other party. In the end, it all zeros out.

This leads to my main point: the biggest and most negative creation of a petty or tit-for-tat worldview is revenge.

Revenge (n.) – Any form of personal retaliatory action against an individual, institution, or group for some perceived harm or injustice. (source)

Revenge is a counter. If it isn’t in response to some prior wrong, it’s aggression. Historically, and persisting in some societies, blood feuds are an endless series of retaliations. One family or clan suffers an initial wrong, and a long line of kin suffer the reverberating consequences. In these feuds, there is no zeroing out. The ledger can never be perfectly balanced, because those killed and injured have a value that can never be fully replaced or countered.

The split between transformation and transaction may inform policy debates like capital punishment. An eye for an eye, a tooth for a tooth is one of the oldest written legal codes, and it sees the ultimate justice as being a retaliation. Though this appeals to many, some view great crimes as a chance to grow and change. To learn empathy and love for our enemies is to transform ourselves and the world. There is no learning in revenge, it is a base, short-term solution to a problem that may persist long after the crime committed, the sentence paid.

The death penalty: nothing left but the shame

Seen from the viewing room, Alabama's lethal injection chamber. Picture: AP.

The New York Times editorial board has come out with a piece entitled “The Secret Shame of the Death Penalty“. In light of the Oklahoma debacle with Clayton Lockett and the last-minute stay of Russell Bucklew, they point out that lethal injection is the latest in a long line of execution methods that attempts to avoid being seen as barbaric. They state:

By now, it is clear that lethal injection is no less problematic than all the other methods, and that there is no reason to continue using it. But capital punishment does not operate in the land of reason or logic; it operates in a perpetual state of secrecy and shame.

In most cases, it is conducted late at night, behind closed doors, and as antiseptically as possible. Were it to be done otherwise, Americans would recoil in horror, as they did after the debacle in Oklahoma.

There is no humane way to execute someone. Lethal injection has typically used paralytic drugs to disguise extreme pain so that the people administering it and those who are witness can sleep at night. At the end of the day it is a murder, just with special context and circumstances. In the 21st century, the only way to sell capital punishment is to make sure that regular individuals never have to think about it. Small, private executions in the middle of the night. Everyone can sleep peacefully, until something like the Lockett case reminds us all that people die writhing, moaning, screaming just after midnight, courtesy of taxpayer money.