Good. Good for you, Governor Newsom. Stay the course, and call a halt to the madness. Don’t listen to that crazy-assed President of yours. He doesn’t know Jack Shit about anything. Yesterday he was spouting his ill-considered opinions on the merits of modern avionics and computerized flight control systems as they affect the safety of commercial air transportation. No, really. He can be safely ignored. In fact, if he’s against it, that’s usually reason enough to do something. Remember, this is the guy who wanted New York to execute a bunch of innocent black kids who were railroaded in a rape case by the cops:
Who cares what that guy thinks? You go, Governor. Drag your State into the civilized world, kicking and screaming all the way.
Of all the things that leave the citizens of other liberal democracies wondering whether America is in fact an antediluvian, brutally unfair backwater on the cusp of parting ways with Western civilization, perhaps governed by hillbillies, nothing stands out so much as the continued application of the death penalty by a majority of its jurisdictions. Well, maybe the fixation on guns, and the toleration of close to 40,000 gun deaths a year, casualties that would make any war utterly unacceptable to the American people (in going on 18 years of war in Afghanistan, for example, fewer than 2,500 Americans have been killed). And of course there’s the health care debacle, and the ludicrous income inequality, the toxic race relations, the climate change denial, the xenophobic, atavistic terror of brown folk from the south, and the rigged electoral systems that render America a flawed democracy at best. Don’t let’s forget the mystified horror that attends the election of a… a… a thing like Donald Trump, which nobody out here will ever understand.
But the death penalty is right up there.
At present there are still 30 US States in which capital punishment remains a legal possibility. There was a brief period in the mid-1970s when the practice was declared unconstitutional by the Supreme Court, but SCOTUS reaffirmed the constitutionality of the death penalty soon after, in 1976 – the legalities are complicated, but at no point has the highest court declared the very concept of state-sanctioned killing of criminals, however accomplished, whomever killed, to be by definition “cruel and unusual” – and the ultimate punishment has been meted out with varying enthusiasm since then, depending upon the State.
It will come as no surprise that Texas leads the pack, with 346 death sentences carried out since 2000 alone. Back when he was Governor, George W Bush signed off on more than 190 death warrants, all between 1995 and 2000 – about two per week – and appears to have enjoyed himself, while hewing to the old myth that capital punishment deters crime. Anyway, it was popular. Florida has also been a likely place to get yourself strapped into Old Sparky, with close to 100 executions since 1976. Today there are over 2,700 inmates sitting on various State death rows, and about 1,500 executions have been carried out since 1976.
Yet nation-wide, public support for capital punishment has been waning. While a majority of Americans still favours the death penalty, the percentage of those who disapprove has been steadily climbing:
Meanwhile, the practice has been all but abandoned in several States, even though it remains on the books. Eleven of the jurisdictions that allow executions haven’t performed one in at least a decade. Nebraska, Wyoming, Colorado, Pennsylvania and Oregon haven’t carried one out in at least 15 years. New Hampshire hasn’t put anyone to death since 1939. The last time for Kansas was 1965. Other States haven’t been content with an unofficial moratorium. New Mexico, Illinois, Connecticut, and Maryland have legislatively abolished the death penalty.
At the same time, while refusing to declare unconstitutional any penalty that was regularly imposed at the time the Constitution’s prohibition against “cruel and unusual” punishments was drafted, a logical if cruelly legalistic approach, the Supreme Court has been whittling away, albeit by setting limits that do no more than correspond to almost everyone’s minimal notions of basic humanity, for example by abolishing the execution of juveniles and the mentally disabled. It’s been contentious, though, and many death penalty cases have been decided by the predictable 5-4 conservative/liberal split, while some of the written decisions have included horrifying advocacy for judicial murder that borders on the pathological, especially, of course, on the part of dear, departed Antonin Scalia. When it came to killing the mentally retarded, Scalia reckoned that if people kept imposing the death penalty on such offenders, then it just had to be right:
The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders.
Golly, that’s clever! Scalia also dissented from the Court’s 2003 decision to bar the execution of juvenile offenders, and in perhaps his most memorably egregious dicta had this to say about carrying out executions when credible evidence of innocence came to light following the conviction:
This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.
Why pause to find out what’s what? The guy had a trial, fair and square (more or less), right? This is what I refer to as the “tough luck but you had your kick at the can” argument, which underpins the upholding of all sorts of manifest and provably unjust outcomes in both the American and Canadian judicial systems, and which is, at its base, morally bankrupt.
It’s this sort of moral bankruptcy that makes the public increasingly squeamish. It’s the number of times condemned offenders have been proved innocent – 78 between 2000 and 2017, and if that many managed to clear all of the almost insurmountable legal hurdles that stand in the way of overturning a capital verdict, how many others must there be? It’s the botched executions, including those that have recently resulted from States being forced to experiment, when drug manufacturers refuse to make their products available for the purpose – read this, if you can stomach it:
Or try to get through this horrifying essay from The Atlantic, which left me shaken and depressed:
It’s the way that race plays an undeniable role in who gets picked to die. Study after study confirms what nobody sensible would deny any more, that black people are far more likely to be sentenced to death than white people for equivalent crimes:
It’s the company America keeps in the shrinking international death penalty club; the United States stands proudly with the likes of Iran, Saudi Arabia, China, Uganda, Somalia and North Korea (though there are other surprising nations on the list of those which still maintain the legal right to kill their citizens, including Japan and, most jarringly, my own beloved Antigua and Barbuda – there was a man waiting to be hanged there when we first visited the island back in 1997, but I’m pleased to discover that his sentence was set aside in 2016, and that Antigua has commuted all outstanding death sentences, even though the law remains).
It’s the pure fallacy, proven wrong time and again by study after study, that capital punishment does anything at all to deter serious crimes, which, after all, are either committed in the unthinking heat of the moment or perpetrated by self-styled master criminals who believe they’ll get away with it. I’ve always suspected that state-sponsored killing has just the opposite effect, breaking down mental barriers to homicide by sending the message, perhaps processed subliminally, that it is indeed a just and fitting thing to kill within the bounds of civil society, provided your reason is good enough.
It’s all of those things, but for me all of that is beside the point. For me, it’s the sheer horror of a society willing to carry out judicial murder, vengeful, merciless, little better in the end than the doomed offender. I never went in for the “eye for an eye” bullshit, which anyway was supposed to be an exhortation to take care that the punishment was never disproportionate to the crime, and I don’t give a flyer if the Good Book gives the practice its seal of approval. I don’t care that generations of otherwise admirable folk had no qualms. I don’t care what the families of victims want, either – their emotions are understandable, but we don’t make policy just to suit the aggrieved, and their anguished wishes shouldn’t be used to rope me into complicity in one of society’s most appallingly misguided and medieval pratices. I wouldn’t even care if the death penalty was fairly applied, humanely administered, and a proven deterrent. No. It’s too frightening. It’s too sickening. It makes monsters of all of us, and I won’t hold with it, and never have.
My attitude towards the death penalty was set in stone by the time I was six years old, believe it or not, the result of watching some age-inappropriate programming on daytime TV. When I was in my first year of public school, what we called “Primary” and what you probably knew as “kindergarten”, we only attended in the mornings. Afternoons I spent at home with my wonderful stay-at-home mom, and I’d fire up the black and white console tube TV sometimes while she took her regular afternoon nap. The nap was a cherished ritual. I crawled under the covers with her so she could keep track of me, but of course I’d sometimes wander off once she was asleep, or at least that’s how I recall it today – Mom wasn’t the type to leave a kid unsupervised, and it’s a little murky how I wound up by myself in front of the tube. Yet so what anyway, if I got loose and flipped on the goggle box? I couldn’t get in too far over my head watching game shows and being bored by soap operas. There wasn’t a lot being broadcast back then. What could I possibly see? We only had two channels.
Two was enough, as it turned out. It would have horrified my mother to discover me transfixed one afternoon after I’d flipped away from As the World Turns, or maybe it was The Edge of Night, to watch what I think was an episode of Take 30, the CBC show that touched on all sorts of topics every afternoon, hosted by eventual Governor General Adrienne Clarkson. Frozen forever in my memory is the show in which they covered the execution of a condemned California man by what was then the preferred method, inhalation of cyanide vapor in the gas chamber. A reporter narrated a set of still images, and here’s the thing I can never forget: his account of the helpful instruction from one of the guards to “take deep breaths, it’ll be over quicker”.
Take deep breaths, it’ll be over quicker.
Even now, dwelling upon it, I want my mommy.
Then, God help me, there was Midday Matinee. Every afternoon one of the two local channels, CTV maybe, showed a movie. Westerns. Old G-rated war movies. Fine family fare. So I’m sitting there one afternoon with my milk and cookies, again somehow by myself, and what do they show – Bambi? 20,000 Leagues Under the Sea? Stagecoach? No. No, they decide to broadcast In Cold Blood.
In Cold Blood is a superb cinema adaptation of Truman Capote’s landmark non-fiction account of a pair of drifters who murdered a whole rural family, the Clutters, son, wife, young daughter and all, in Holcomb Kansas back in the late 1950s. It was filmed in stark, foreboding black and white, and starred Robert Blake as one of the killers, giving a performance that should have won him an Oscar. The film, a masterpiece really, pulls no punches – and by that, I mean it pulls no punches. It’s worse than almost any horror movie I can think of. Even the most hardened adult viewer would find it bleak, scary, sad, and very upsetting, especially in the soul-destroying senselessness of the killing. When the pair is finally captured, Blake’s character recounts the murders to a detective, and you see the whole awful thing in flashback, how it evolved in an overheated, claustrophobic psychological space from a mere attempted midnight theft into a brutal execution of the tied and helpless victims. Six-year-old me heard Blake tell the detective that he had no idea why he’d done it. “The fact is, I liked Mr. Clutter. I thought he was a very nice gentleman. I thought so right up to the second I slit his throat”.
The movie ends with a graphic depiction of the executions, by hanging, and at that point my eyes were likely as wide as saucers, and I almost felt too dead inside to be terrified any more. So that was what people could be. That was what we were capable of doing to each other, in cold blood from start to finish, just like the title said. If that was true, than nobody was ever safe, not really. If that was true, then it wasn’t just strangers that you had to fear; the ones you counted on to protect you might be the ones who dangled you from the gallows. Those condemned men were so afraid, standing there trussed like hogs, waiting for the trap door to spring, and nobody cared. Just like those frightened men hadn’t cared themselves, when they put an end to poor, whimpering Nancy Clutter. Nobody had pity. For Christs’ sake, as they secured the nooses there was a priest in attendance! A man of God! The church was OK with this? This was all just fine by everybody?
I suspect that being forced to confront such notions at such a tender age has something to do with who I am today.
One thing’s for sure, since then I’ve been viscerally opposed to judicial murder, facts and evidence be damned. It’s nice that the facts and evidence all support my predisposition, but it wouldn’t matter. It also doesn’t matter that my own family history includes a cautionary tale of how easy it is for an innocent man to run afoul of powerful forces in the justice system and wind up at the end of a rope, a tale for another day. That’s all by the by. I don’t care if the guy strapped to the gurney is innocent or guilty. All that matters is the horror, and what I am and am not content to have done by civil servants in my name.
If there are any moms out there reading this, you’ll probably want to make sure that your kids don’t begin school with images like these already seared indelibly into their juvenile little minds, there to haunt all of their sweaty nightmares until death pays each its inevitable visit: