"Where would it end? You kill my son, I kill yours. You rape my daughter, I rape yours. You mutilate my body, I mutilate yours. You treat someone brutally, and I, the established government of one of the most advanced states in the most advanced nation on earth, will respond by officially and deliberately, treating you brutally, by strapping you to a chair and burning away your flesh, for all to see, so the barbarians will know that we are capable of official barbarism. We will pursue this course, despite the lack of reason to believe it will protect us, even if it is clear, almost with certainty, that occasionally the victim of our official barbarism will be innocent." — Mario Cuomo, former New York governor
Recently I was leafing through a book that had just arrived in the mail. I planned to read it later but just thought I’d give it a quick perusal. As I looked it over the cluster of color photos in the middle drew my attention. The photos included scenes from such films as The Green Mile with Tom Hanks and Dead Man Walking with Susan Sarandon and Sean Penn. The photos had a dramatic, professional polish to them. I also noticed three other photos. They were of a man being executed. The photos showed a large, bald man strapped to a chair. In one, the man’s eyes are closed and a wide leather strap looks like it has awkwardly wedged up against his face. In another, blood drips down the face and onto a partially bared chest. I wondered, what movie is this? But as I read the captions, I quickly realized these photos were real. This man was dead. Allen Lee Davis had been executed by the state of Florida.
Or, I should say, as one Florida Supreme Court judge admitted, "brutally tortured to death by the citizens of Florida."
Welcome to the death penalty, American-style.
The Debate Continues
Austin Sarat’s new book, When the State Kills: Capital Punishment and the American Condition, represents a valuable contribution to the growing debate over the merits and morality of the death penalty. In its modern incarnation, the right of states to impose the death penalty was reinstated by the U.S. Supreme Court in 1976, after a ten-year hiatus. One year later the state of Utah put Gary Gilmore in front of a firing squad and filled his body with bullets. Since then more than seven hundred people have been executed in the United States. Yet questions of the system’s basic justice continue to dog death penalty supporters.
Sarat, a professor of jurisprudence and political science at Amherst College, tackles these questions in a compelling and well-researched legal and historical critique of the consequences of death penalty justice. His conclusions are as unequivocal as his scholarship is solid: The death penalty degrades the democratic spirit, and with it, the citizens of such democracy. It is time to abolish the death penalty forever.
According to Sarat, since the mid-1970s eighty-seven people on death row have eventually been freed because they were found innocent after their trials and appeals were completed (since the book’s publication the figure has grown). That represents an astounding one innocent person for every seven executions. In Illinois, Governor Ryan was forced last year to declare a moratorium on executions after a wave of overturned wrongful convictions threw a spotlight on a system creaking under its own ineptness.
How many innocent people have actually been put to death?
Gary Graham, convicted in Texas for murder, was executed last year by then-governor George W. Bush, despite multiple eyewitnesses who were never allowed to testify that Graham was not at the scene of the robbery-murder. Seven years of appeals culminated in just one half-hour of the governor’s time, and a signature on a death order.
The state of Texas, which leads the nation in executions, has killed inmates whose lawyers slept at trial; a convicted rapist whose DNA test showed that semen found in his alleged victim was not his; and a man whose confession a local judge admitted had been coerced out of him by police who also committed perjury. The Chicago Tribune additionally reports that between 1995 and 1999 lawyers appointed by the Texas Court of Criminal Appeals for eight death row prisoners had been sanctioned by the state bar for official misconduct.
In Pennsylvania, African-American writer Mumia Abu-Jamal has been on death row for eighteen years. In a trial that has earned international condemnation for its unfairness, he was convicted of killing a Philadelphia policeman. Despite even the recent confession of another man that he is the real killer, Mumia Abu-Jumal faces execution.
Indeed, few among the 3,600 people now on death row had adequate defense lawyers or elaborate trials, says Sarat. More than half are nonwhites and many come from poor backgrounds. In many instances they are there because, as Sarat writes, "they committed crimes of passion or lost their head and killed someone in the course of a robbery gone bad." To claim that within this context the death penalty serves as a deterrent is hardly credible.
Legitimizing Vengeance
When the State Kills represents a powerful call to replace what Sarat describes as "the politics of revenge and resentment for sustained attention to the social problems responsible for so much violence today." Surprisingly, the author is critical of such films as The Green Mile and Dead Man Walking, arguing that they narrowly focus on whether a particular individual deserves to die, rather than on broader questions about state killing or social conditions that produce violence in America. These popular films thus "silently acquiesce" in the bureaucratization of capital punishment, he maintains, even as they criticize specific executions.
Sarat also sees great irony in the arguments of pro-death penalty advocates who attempt to justify executions on grounds that we now have more "humane" ways of killing, such as lethal injections. Such a "strategy of political legitimation" actually reveals a kind of de facto acknowledgment that the death penalty is by nature vengeful and cruel. Somehow, shifting the focus to how humanely we can now kill, the "eye for an eye" philosophy at the heart of state killing is supposedly rendered more palatable to civilized folks. But Sarat and many other civilized folks, myself included, still find it hard to digest.
In fact, killing a person by lethal injection is not necessarily painless. The drug protocol used in executions commonly entails first administering short-acting sedatives. But, as has happened the person being executed may momentarily regain consciousness a few minutes later, following the next round of injections, only now in a state of paralysis, unable to breath, and in extreme and literally inexpressible pain. Of course, lethal injections are not administered by medical doctors, the only individuals licensed to administer such prescription drugs. We shouldn’t be surprised then if the non-doctors killing people occasionally don’t get it right.
Anesthetizing Ourselves
State killing has never in the entire history of this country been applied except with systematic bias, against minorities and poor people. But I’m also opposed to the practice of routine executions because it contributes to a culture that anesthetizes human beings to the practice of violence. Sarat raises this issue in discussing the jury system in capital cases. "At almost no other time does a group of citizens calmly and rationally contemplate taking the life of another, all the while acting under the color of law," he writes. "This kind of democratically administered death penalty is a reminder of an enduring puzzle in social life, namely the question of how otherwise decent people come to participate in projects of violence and how cultural inhibitions against the infliction of pain can be turned into legal support for such action."
Some argue that those being executed are not "decent people," but, rather, murderers and sociopaths who destroy innocent lives. They may point to examples such as Timothy McVeigh, the Oklahoma City mass murderer. But what was really accomplished by killing McVeigh, other than to increase by one the final death toll from the events of April 19, 1995?
Here’s something else to consider. Timothy McVeigh first learned to kill and was even given a medal for killing two Iraqis in the 1991 Gulf War. In the same war, on January 19, 1991, U.S. jets blew up a building in Baghdad killing almost four hundred innocent people, nearly all women and their children seeking shelter from the bombs raining down. To the military minds and their commander, George Bush, Sr., the women and children of Baghdad became "collateral damage," unfortunate but perhaps unavoidable casualties in a necessary war. Interestingly, collateral damage was the same term used by McVeigh to explain away the children killed in Oklahoma City, victims of his own personal version of the "necessary" war.
"We must ask what the death penalty does to us," Sarat concludes, "not just what it does for us." Perhaps one answer to this question is the truth that every time a government execution takes place, it is we the citizens who are the collateral damage. Our culture anesthetizes us to violence in so many unseen ways. I believe we can do better. We can start by sensitizing ourselves to the premeditated barbarity of the death penalty.
When the State Kills: Capital Punishment and the American Condition, by Austin Sarat, Ph.D. (Princeton University Press, Princeton, New Jersey, 2001; 324 pages, $29.95 hardcover.)
Mark Harris is a Chicago-based writer. Visit his Web site, A Writer’s Voice.