What happens to the authority of the modern state when it definitively leaves behind the death penalty?
The only man whom I ever knew personally who was executed was the Nigerian writer, Ken Saro-Wiwa. The charge was trumped up, of course. “In this country,” he is said to have said as the hangman put the noose around his neck for a fifth attempt, “they cannot even hang man properly.”
The death penalty is not a laughing matter, but there is something absurd about the apparent inability of a state in the most powerful country in the world being unable to execute a man expeditiously and painlessly.
If ever a man deserved to die for what he had done, Clayton Lockett was that man. Of his guilt or the malignity of his crime there was no possible doubt. But men are not necessarily to be punished as they deserve, for some men do such abominable things that it would be beyond the imagination of sadists to devise a punishment for them that they did not deserve. In England in 1702, a notorious pamphlet was published with the title Hanging Not Punishment Enough. We refrain from punishing men as they deserve not because of qualms about their deserts, but because of fears of becoming brutish ourselves. There is, after all, nothing more gratifying than the infliction of cruelty for righteousness’ sake. It is an appetite that grows with the feeding.
The execution of Clayton Lockett was both cruel and absurd. He was, for example, taken for x-ray examination on the morning of his execution, as part of the protocol. Why was it part of the protocol? Is execution a medical procedure? Was it to ensure that the client, as we shall soon no doubt have to call him, was physically fit to be executed? Did he not have the human right to refuse x-ray examination right up until the moment of death?
It took 40 minutes to find a vein into which to inject the supposedly fatal concoction of drugs. I shudder to think of the mentality of the man who persisted in the attempt. Then the fatal concoction of drugs failed to work. Is pharmacological science really so uncertain in the 21st century that a combination of drugs cannot be found to kill a man swiftly and without pain? The alleged need of the United States to import the “correct” drugs from Europe, which refuses to export them for this purpose, strikes me as preposterous.
In the wake of the Clayton Lockett debacle, a federal appeals court stayed the execution of Robert Campbell in Texas. It did so without reference to Lockett, but perhaps the minds of the justices were nevertheless somewhat sensitized by it. They stayed Campbell’s execution on the grounds that Campbell had an IQ of about 70. That is to say, he was of borderline subnormal intelligence. Now this seems to be to be odd jurisprudence. First, Campbell’s IQ was known all along, at the time of his trial when he was found guilty of a capital offence; and more importantly, if his intelligence was so low that it affected his mental responsibility for his acts, then he should not have been found guilty of that particular crime in the first place. On the other hand, if his intelligence was not so low as to affect his criminal responsibility, then it ought to be irrelevant to the question of execution.
There is, however, an aspect of the death penalty as it I employed in the United States that is truly scandalous, and that is the time it takes to carry it out. If any punishment were cruel and unusual, to keep a man on death row for 10 or 20 years and then kill him is surely such a punishment. To maintain a man in prolonged apprehension of his own demise is to torture him mentally. If execution were done, ’twere best done quickly. Swiftness, after all, is an important quality of justice.
It might, of course, be said that lengthy delay is necessary to exhaust all legal avenues and to exclude all possible miscarriages of justice. If so, this is not testimony to the scrupulousness, but to the inefficiency, lack of self-confidence, and indeed incompetence of the criminal justice system. If it really takes 10 or 20 years to prove beyond doubt that a man is guilty as charged, he should not have been convicted in the first place.
Such unconscionable delay undermines one of the arguments for the death penalty: its deterrent effect. The latter, by the way, cannot stand alone as a justification even when is working properly. Deterrence is not a sufficient reason for any punishment, at least not for modern sensibilities such as ours. Cutting off the hands of thieves and burglars might very well reduce theft and burglary, yet still we should not advocate it.
The death penalty has never been carried out consistently even when imposed by courts. In England, death was the mandatory sentence for murder until the punishment was abolished, but it was not carried out in more than one in 12 cases.
As it happens, I found evidence in England—good, though not of course conclusive—that the death penalty did deter. (I gave that evidence to a friend who is writing a book, as yet unpublished, so am obliged to withhold it for now.) But it was a deterrent because it was carried out quickly. The appeal process, including pleas for mercy, lasted not more than a few weeks. Mistakes were made, but not more frequently than in America.
Of course, the very possibility of error is a powerful argument against capital punishment, for the death of an innocent man at the hands of the justice system undermines faith in that system, to the great detriment of society. Those who say that the number of wrongful executions is much outweighed by the second murders committed by murderers who might have been executed, and that therefore the risk of wrongful execution is one worth running, are accepting a crude form of utilitarianism. Perhaps it would be better, from the utilitarian viewpoint, that someone rather than no one should be executed for a murder, provided only that the executed person’s innocence be covered up; but no one (I hope) would advocate such a course of action.
I accept that the death penalty is not in itself unjust; I accept that, when properly administered, it might well act as a deterrent; but still I am against it.
Whether one is for it or against it, there is nothing to be said in favor of the way it is currently carried out in America, and on that grounds alone it should be stopped forthwith.