A Cruel and Unusual Excuse

by GREG MOSES

In order to stop the killing at Texas death row, the European Union on Tuesday, through the office of its Presidency, asked the Governor of Texas to declare a death-penalty moratorium. But the Governor’s reply was quick and flippant. He did nothing to stop the 400th killing Wednesday evening, and it is becoming horribly apparent that he will do nothing to intervene in the three executions scheduled for next week — not even for Kenneth Foster who never killed anyone.

"We believe that elimination of the death penalty is fundamental to the protection of human dignity, and to the progressive development of human rights," argued the EU. "We further consider this punishment to be cruel and inhumane. There is no evidence to suggest that the use of the death penalty serves as a deterrent against violent crime and the irreversibility of the punishment means that miscarriages of justice – which are inevitable in all legal systems ­ cannot be redressed. Consequently, the death penalty has been abolished throughout the European Union."

In reply to the EU’s four carefully worded reasons, the Texas Governor answered that "Texans are doing just fine governing Texas."

"Texans long ago decided that the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens," said the Governor in an oddly titled "Statement by Robert Black." Does the Governor have in mind some joking reference to the film, "Meet Joe Black"? Speaking for the Governor, Mr. Black reminded the EU that the USA was born out of a revolution "to throw off the yoke of a European monarch."

The reply by the Texas Governor is a logical embarrassment, because it waves around an issue not disputed by the EU while failing to provide any reason beyond state’s rights for why the long-ago decision by Texans should be considered reasonable.

When the Governor calls the death penalty "just and appropriate" we first wonder if he means to suggest that anything whatsoever can be just and in-appropriate. The construction of the Governor’s conjunction signifies a careless haste in thinking precisely in a moment when careful considerations are most called for ­ that is, on the eve of the state’s 400th execution.

If Texas has good reasons for deciding that the death penalty is a just basis for killing 400 people, and if the killing is to continue with an even broader scope to include people who drive cars for killers, then a "decent respect to the opinions of mankind" would compel the Governor to treat the matter with the logical seriousness that it deserves. Instead we get an anti-littering slogan on retreads: "Don’t Mess with Texas."

Perhaps the Governor means for his readers across the Atlantic to infer that where a "most horrible crime" has been committed, a most terrible punishment is not to be considered cruel or unusual. An eye for an eye, a life for a life. If this is the Governor’s intent, we would prefer that he state his reasons more clearly so that the discourse may continue on open ground.

In matters of judgment and punishment we may allow the Governor a point, despite the atrocious rhetoric that he uses to put it across. The law does seem to demand a certain reciprocal retribution for wrongdoing. But in all other cases, the lawful currency of punishment is put in terms of cash damages or some manner of restricted freedom, up to and including life in prison. If we don’t literally take an eye for an eye, on what basis do we decide to take a life for a life? Texas has enough prisons to hold 400 killers for life.

The Governor’s failure to state the case more clearly not only deflects dialogue on the second point raised by the EU; it also serves to fog the fact that the Governor completely evades the other three issues raised. If Texas takes the position that death for death is just, based on the horribleness of the crime, where does Texas stand on the other three issues raised by the EU?

Does Texas not believe that an eventual end to the death penalty is demanded by "the protection of human dignity, and to the progressive development of human rights"? The Governor’s reply to the EU waves the bloody shirt of a 230-year-old war, but what about the progressive evolution of law in the USA since that time? Didn’t Texas and USA follow several European examples in the abolition of slavery for example? Is the Governor suggesting that such monumental achievements of legal progress in Texas will require the world to apply the same methods that put an end to slavery?

As for the third point raised by the EU, where does Texas stand on the question of deterrent effect? Does the Governor ease his own conscience by thinking about deterrence or not?

And what about the grave problem of irreversibility?

Cameron Todd Willingham was executed in 2004 for starting a fire that killed a person. But the Texas Governor refused to consider expert reviews declaring that the fire could not have been arson in the first place (Mills and Possley, Chicago Tribune, Dec. 9, 2004).

Ruben Cantu went to his execution in 1993 claiming that he had been framed. A dozen years later, both his accomplice and a witness now say Cantu spoke the truth (Olsen, Houston Chronicle, July 24, 2006).

Carlos De Luna was killed by the State of Texas in 1990, but there is good reason to believe that another man was the more likely killer (Possley and Mills, Chicago Tribune, June 25, 2006).

"I’m an innocent black man that is being murdered," said Shaka Sankofa (Gary Graham) before his execution in June of 2000 (Wikipedia).
In the case of Kenneth Foster — who is today on a hunger strike in protest of his scheduled execution next Thursday ­ the State of Texas does not even claim to be executing a killer. Foster drove the car that a killer rode in. The killing was impromptu and took place about 80 feet from the car. Foster was not part of any conspiracy to murder (Editorial, Fort Worth Star-Telegram, Aug. 19, 2007).

As the EU says, mistakes in human judgment are inevitable. Does the Governor believe that Texas is infallible? A decent respect for world opinion requires the Governor to answer the question as if the moral life of his state depended upon it.

By what principles in the 21st Century does the Governor carry his conscience when he acts as if carefully planned killings are necessary to his lawful rule?

His reply to the EU, that he executes people because the people of Texas long ago made up their minds to let him, displays a cruel and unusual disrespect toward the ongoing discourse that conscionable governance requires.

GREG MOSES is editor of the Texas Civil Rights Review and author of Revolution of Conscience: Martin Luther King, Jr. and the Philosophy of Nonviolence. His chapter on civil rights under Clinton and Bush appears in Dime’s Worth of Difference, edited by Alexander Cockburn and Jeffrey St. Clair. He can be reached at: gmosesx@prodigy.net.

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