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Outline of an Abolitionist Program

Ending the Death Penalty

by JUSTIN E. H. SMITH

It is to be hoped that the institution of capital punishment in the United States will, if I may borrow a bit of Marxist language, collapse under the weight of its own internal contradictions in the near future. To bring this about, it should be the long-term goal of death-penalty abolitionists to heighten these contradictions and thereby to hasten the institution’s demise. Yet unfortunately, the general approach among those who oppose capital punishment has not been to emphasize inherent and irresolvable problems in the system of capital punishment, but to argue casuistically that such and such proposed execution ought not happen.

Now, if one is an abolitionist then one must always agree in principle with the casuists’ arguments: if the death penalty should never be employed, then it follows that it should not be employed in this or that case. But to proceed only by cases is to imply, willy-nilly, that capital punishment is in principle acceptable. To argue that some convicted murderer’s IQ is too low to attribute moral agency to him implies that if he scored just a few points more then he would be suitable for execution; to invoke a Death Row inmate’s belated acceptance of Jesus Christ as his savior as a reason not to execute him is to imply, disturbingly, that a murderer who ‘converts’ to secular humanism is more deserving of death than his avowedly Christian counterpart; to focus exclusively on exculpatory DNA evidence is to proceed as though the clearly guilty deserve to hang (or whatever the latest fashionable method of dispatch happens to be). The approach of those who argue by cases does nothing to change the conviction of our society that the existence of at least a few confessed non-religious murderers, who score reasonably well on standardized tests and who have been caught in the act, smearing DNA-rich semen and blood and saliva all over the crime scene, by themselves justify the existence of the institution of capital punishment.

The pressure the casuists have exerted over the past few decades has pushed towards reform of the institution, but not, evidently, towards its abolition. Of course, an abolitionist might hope that demands for the just application of the death penalty could at some point become so difficult to meet that reformism will de facto bring the result that abolitionism seeks on principle. The commutation of all death sentences by George Ryan, the governor of Illinois, in 2003 would seem to be an example of this. But Ryan was worried about flaws in the system, not its fundamental injustice. Flaws can be worked out. While Ryan’s move was laudable, it did nothing to move our society towards principled opposition to capital punishment itself. It is of course praiseworthy to employ whatever rhetorical strategies one believes will be of use in the case at hand. However, there is good reason to believe that the best argument in any case will be the one that conveys the rottenness of capital punishment in all cases. It will be an argument that focuses not on who the convicted criminal is and what is about to be done to him, but rather on who we are and what we –both those actively involved as well as the complicit public– are about to do. It is by approaching the problem in this way that its contradictions, rather than its mere kinks, emerge, and it is on this approach that capital punishment’s fundamental incompatibility with our society’s most basic principles of morality and justice comes into clear focus.

What is it we are doing when we execute someone? One bit of insight into the true nature of capital punishment may be discerned by considering the odd practice of keeping death-row prisoners on suicide watch. Why bother if the plan is to execute them anyway? Part of the answer seems to be that the aim of capital punishment is not simply to bring it about that the prisoners are dead, but to bring it about that they are killed. In this respect, even if we do not eat their remains, their deaths resemble the ritual slaughter of animals more than we might like to think. There is moreover an important conceptual difference worth pausing on for a moment between slaughter and extermination: nobody would object if a vermin exterminator found a method of getting pigeons or raccoons or rats to commit suicide, while a cow that killed itself would no doubt be deemed inedible. Capital punishment, then, is not the practice of reducing the number of living murderers in the world. It is an ancient and savage spectacle that can be traced back to pagan sacrifice of both humans and animals, but cleaned up and made palatable through modern institutional procedures, through the legitimizing apparatus of euphemism- filled paperwork, lengthy delays and somber expressions conveying the impression that, when, the moment finally comes, it has to be that way.

Abolitionism, as opposed to reformism, would refuse to accept the somber tone of the judges and sheriffs and governors, by replying: no, it does not have to be that way. The balance of justice can be maintained without periodic sacrifices. Abolitionism would advertise the moral taint these public figures invite through their involvement in the affair, and it would show why the reformist arguments by themselves, while useful for saving the lives of individual Death Row inmates, fail to take seriously the fundamental incompatibility of capital punishment with other basic principles of morality and justice that our society claims to accept.

The abolitionist will take an interest in reformist arguments not because these might help to work out the kinks in the system of capital punishment, but because any effort to render this system more just or more humane can in fact in the end only serve to highlight the system’s fundamental injustice and inhumanity. With this in mind, it may be useful to look at the principle reformist arguments.

Arguments from Possible Innocence

Recent developments in DNA testing have been remarkably useful in revealing just how unreliable the legal system’s judgments have been in murder cases. It was on the basis of new proof from DNA evidence of the innocence of a sizable minority of Illinois’s Death Row inmates that Governor Ryan decided to commute all death sentences in his state. As he commented in 2000 after declaring a moratorium on new death sentences, "We have now freed more people than we have put to death under our system–13 people have been exonerated and 12 have been put to death. There is a flaw in the system, without question, and it needs to be studied." The reason to study it, again, was for him only to see how it might be more justly employed. "I still believe the death penalty is a proper response to heinous crimes," he continued, "but I want to make sure … that the person who is put to death is absolutely guilty."

Again, an abolitionist might hope that the standard Ryan set, if it were to catch on, would be so hard to meet that effectively our society could become one without capital punishment even if that possibility remained in the law books. But, to take a more extreme case, surely we would all agree that Iran will never be a decent society so long as it holds open the legal possibility of stoning teenage girls to death for the crime of lost chastity, even if in fact it never again resorts to this punishment. If a legal possibility remains dormant, then it may as well be stricken from the books; if it is not stricken, then it is because the society is still committed to its justice. In the case of Iran and the United States, that is to say that our societies are still tainted by the savagery of our commitments, even if we never act on them.

We might imagine a society that remains committed in principle to capital punishment for the guilty, but that believes it is never possible to establish with certainty what Ryan calls ‘absolute guilt’. Verdicts have the force of certainty, but they may always be overturned; in any other sentence besides that of death, the criminal has this possibility open to him for the duration of his natural life. In this sense, capital punishment is different from all other forms in that it brings a criminal case to a forced and irreversible end, when future contingencies might otherwise change the condemned’s fate at any time. Future contingencies might also make the condemned a valuable person for the legal system to have around.. In this respect capital punishment necessarily involves the destruction of evidence. As Christopher Hitchens complains, it is "the official snuffing of the chief witness." Capital punishment renders irreversible what in all other cases the legal system leaves to nature.

Arguments from Lack of Moral Agency

‘Absolute guilt’ of the sort Ryan would hope to establish has not only to do, by the reformists’ lights, with the way a condemned murderer’s limbs moved at some moment in the past, with what tools in hand, pointed in what direction, but also with questions of intent and with the internal mental capacities of the agent. Even if we establish absolutely that someone did something, this is not necessarily the same as establishing that that person is ‘absolutely’ guilty. There are questions of context"e.g., whether the murder was premeditated or committed in a moment of uncharacteristic rage; whether the murderer was him- or herself a victim of violence. And there are questions as to whether the murderer has certain innate cognitive abilities that the legal system associates with the presence of moral agency. These questions emerge from a by no means obvious philosophical distinction between the intellectual and the moral realms. Implicit in them is the presumption that the ability to distinguish between right and wrong is one that comes along with a certain cognitive capacity; to know that something is wrong is to be able to grasp the truth of the proposition: ‘That is wrong’.

But it is not at all clear that this is how moral choices are ever made. Rather, morally blameworthy actions are performed out of desperation or compulsion, states in which people of all different cognitive abilities find themselves. A cognitively impaired person who commits murder ‘knows’ that what he is doing is something out of the ordinary, and bad, and knowing this is not a skill that is in any way comparable to, say, knowing how to balance a checkbook. To index moral responsibility to cognitive aptitude is to presume the truth of a very debatable philosophical theory of both morality and intelligence. This theory reaches its maximum point of strain when Death Row prisoners are given tests in which they are asked multiple-choice questions about geometrical shapes and logical orderings of sets in order to determine whether they ought to be held responsible for, say, having cut off someone’s head with an axe. This is not to say that cognitively impaired people ought to be executed, but only that cognitive impairment is an odd thing to invoke in debating whether someone should be executed.

Arguments from Moral Salvation

There are multiple theories of human nature, all of which must be shown respect in a pluralistic society. Only some of these theories would have it that a human being is fundamentally rotten, but nonetheless capable of becoming the opposite of that as a consequence of some declaration, of some speech act, in which he or she declares (to summarize): ‘I am saved!’

Another theory of human nature would have it that we are all perpetually prone to doing dastardly things, even if we recognize that it would be better to do nice things, and that it is only actions, and not declarations, that will settle the matter. In a social climate that lays emphasis on the speech act itself, rather than on the character that becomes discernible through repetition of actions, it is not surprising to see a number of people claiming conversion from a downcast state of being to an exalted one. And it is not surprising to see people in desperate situations, such as that of Death Row prisoners, claiming, through speech acts, to have undergone such a conversion. These should be of little interest to a rational justice system.

I myself signed the petition to nominate Stanley ‘Tookie’ Williams for a Nobel Peace Prize. I hoped, casuistically, that this would save his life, though truth be told it was never clear to me that Williams was, at the moment of his death, a radically transformed individual. His purported transformation was not, for me, in any case, a prerequisite for his worthiness to live, and that is why I signed the petition. But it is interesting that even those who despise the death penalty continue to perceive such transformation as relevant. In Williams’ case, the transformation was packaged and presented as a belatedly discovered appreciation of the desirability of peace (even if the Crips, a gang Williams helped to found, initially came together as an organization for the defense of black neighborhoods, which is to say for the preservation of neighborhood tranquility).

Generally, the crucial transformation is packaged in terms of salvation by Jesus Christ. But nowhere in the Gospels is there any such prerequisite for our respect of some individual human life. If anything, the requirement stated there is that we must value the life that is most wretched, most unredeemed. In this sense, Death Row conversions are wholly irrelevant to any serious abolitionist movement.

Arguments from Unfair Application

It is undeniable that, as applied, the death penalty in the United States is a reflection of endemic racism. I do not need to recite the statistics here; these are readily available to anyone who knows how to use a search engine. More black people are executed for murder than their convicted white murderous counterparts.

But the abolitionist will not for this reason argue that justice will be better served by executing more white people. This would be to get things backwards. Fewer African Americans executed –indeed none– would amount to justice, not more whites executed. In this connection, the reformists often seem to lapse into that tired old talk of quotas, as though it were a matter of proportional representation in some profession or social club. The death penalty in its application is racist; but its non-racist application would still not be just.

Arguments from the Relative Cruelty of the Method

As I have argued previously in this space, the logic governing the periodic changes since the 18th century, from one method of execution to another, is rooted not in science, nor in moral progress, but in fashion. What dictates hanging this season, and lethal injection the next, is the same illusion of real change that makes the style-conscious now disdainful of bellbottoms, now covetous of them.

We do not like to think of our moral standards as comparable to sartorial whims. Morality is supposed to be improving, while anyone with any reflective ability can see that one season’s fashion musts are objectively no better nor worse than another’s. Yet it is a useful exercise to take stock of what exactly the last few centuries of purportedly humanitarian efforts to improve execution methods have brought us. Capital punishment still hurts, and it still results in death.

At the most fundamental level, the problem is that we are straining to retain capital punishment in a justice system that has already done away with corporal punishment. In such an odd –and unprecedented– state of affairs, the only way we could really live up to the prohibition without abandoning the practice in conflict with it is if we were able somehow to subtract souls from existence without having to work through the bodies these souls inhabit. But that can’t work: to kill someone is by definition to do harm to their body. (Even if the killing itself could be experienced as a sweet, seductive sleep, check back some time later and you will see that the body is not doing so well.) Capital punishment is not categorically different from corporal punishment, but rather a limit case of it. There is thus no way to have one without the other. Arguing over the relative comfort of the method of execution employed is a pseudohumanitarian farce, but one that is useful to the abolitionist movement in its illustration of the ill fit between ritual human sacrifice and hypersensitivity about pain.

***

Not everyone on Death Row is, cognitively speaking, an idiot. At lease some of the people on Death Row in fact did what the juries that sent them there concluded they did. Not everyone on Death Row has undergone a spiritual transformation, and there is good reason to doubt, under the circumstances, the sincerity of any claims to have done so. Arguments against killing this or that Death Row prisoner on the grounds that he is innocent, that he is too cognitively impaired to be deemed guilty or innocent, that he has undergone radical spiritual –and thus, the implication is, moral– transformation since the murder, say nothing about the justice or morality of capital punishment itself.

It would be a callous moral equivalence to maintain that our killing of murderers is as obscene as the stoning of sexually active teenage girls. Killing is universally abhorred, while it is only a certain kind of society that makes much of a fuss about ‘promiscuity’ (to wit, a hypocritical, patriarchal one). But responding to killing with killing is by no means universal either" life imprisonment, banishment, whipping, ritual prostration, have all in various times and places presented themselves as adequate responses. To choose to respond to killing with killing, or even to hold that possibility open in principle, is to choose to be a certain kind of society.

We are a society that sacrifices to the god of vengeance. We do this collectively, not in the heat of passion, but with somber premeditation and keen technical interest in the art of it. We are cognitively in good shape, and evidently quite far from any spiritual transformation.

We are, in Governor Ryan’s terms, absolutely guilty.

JUSTIN E. H. SMITH teaches philosophy in Montreal. He can be reached at: justismi@alcor.concordia.ca