Of course, you can find more sophisticated arguments than deterrence for bringing us back to capital punishment. Ed Koch, the mayor of New York, put himself on record against fellow liberals by declaring: “Society has the right to demonstrate its sense of moral outrage against particularly heinous crimes.” The death sentence may not be a deterrent, but society can still feel fortified. In fact, if it is not ready to execute its extreme malefactors, then society may seem absurd to itself. A mass of good citizens does not like to sit around in impotent fury after a cheap hoodlum has savaged a young girl and dismembered her body.
There is trouble, however, with this idea as well. “Particularly heinous crimes,” on closer examination, are almost never done by the kind of people society might be able to kill in good conscience. Atrocities are usually committed by poor, raddled wretches so schizophrenic in their inmost wheels that psychiatry itself is disturbed by a look into their minds. The gate of a mental hospital receives the killer rather than the sights of the executioner’s gun, the straps of the electric chair, or the touch of the rope.
So the more one contemplates capital punishment, the less one can argue comfortably that it works. On the other side of the argument, it soon becomes clear that it may do much harm to society. Certainly it disturbs the law. Anyone familiar with courts and legal processes knows that justice likes to be concrete. Attorneys try to build a case by putting together ladders of evidence with no weak rungs. Thereby the judge or juror can mount to his conclusion and never have to step across a gap. When a court is asked to decide whether a penalty should be $5,000 or $10,000, legal precedent can be as well laid out as a good network of roads. But so soon as His Honor or the Peers of the Defendant are asked to consider the sentence of death, law has come to the end of its reason. It is awesome to give the verdict at that point. All concerned must take a leap. Contemplate the vertigo that spins in the half-remembered dreams of judges, lawyers, and juries when they must condemn the man (or, very occasionally, the woman) in the defendant’s chair to a sentence of execution. It is one thing to read about a wanton slaying and tell your family they ought to kill the scummy son of a bitch who committed the act; it is another to sit on a jury and stare at your potential victim. He does not look that different now from anyone else. Yet you are going to order this stranger—and how strange he is—to death.
That can only inspire the deepest panic. In our dreams, we are always up before judgment. The penalties, the retribution, the outright torture we suffer in a nightmare suggests some more precipitous universe beyond the familiar world of law, society, and daily life, some existence where one is given prodigious sentences for every mistake. Think then of the boiling pits in any judge or juror who has to condemn another to death. What if he has missed some extenuating circumstance? How much will he have to pay in eternity for such an error? Capital punishment inspires pure dread in judges and juries. Your dream life can be changed forever by bringing in such a verdict.
Even the attorney who prosecuted Gary Gilmore did not want to go to the execution. Gilmore had killed two young married men on successive nights and spoke of it with icy detachment. Gilmore also had a bad record in jail. So the county attorney worked with all his skills to get the death penalty and succeeded. Yet he never believed Gilmore would be shot. Tacitly, he assumed that the sentence of death would not only be appealed, but eventually commuted to life imprisonment. Personally, he had no desire to see Gilmore dead.
He was not unique among prosecutors. Capital punishment is to the rest of all law as surrealism is to realism. It destroys the logic of the profession. Until one gets to capital punishment, law is a game. A most interesting, valuable, and serious game. To the degree that a case is brilliantly argued by both sides, justice, if not done, is at least approached. Law is a way of saying: Human nature being what it is, you cannot get justice itself, but you can, if the lawyers are good enough, get the next best thing to it. You may even find an approximation of justice.
Capital punishment, however, says: The penalty no longer fits the crime. You are being moved from the court to the tomb. The prosecuting attorney is transmuted into an avenging angel, and the judge, a god. What has that to do with legal camaraderie? Opposing lawyers, trying to tear one another apart in court, also like to laugh afterward at the moves each pulled. Contending lawyers, out of court, are usually more friendly than athletes on rival teams—in fact, they are like athletes who are trying out for the same position. The law is built on the assumption that life is mad, and law offers the same stability society brings to restless humankind. Look, you fools, says society, the way we do it makes no one happy, but somehow, most of the time, you get through life in one piece.
Capital punishment is there, however, to say: How do you get through a death? The man is not dying of disease, or by one of those livid cracks in the bowl of time that speaks of sudden accidents, or spontaneous acts of mayhem. No, he is being murdered administratively. The state will do the job. Which is to say that a large group of people hired by the state—corrections officers—are suddenly in charge of an unprecedented event.
Now, prison guards, unlike other state employees, do not have lives that are high in security and low in risk—to that extent they are not the same as other bureaucrats. They are sitting on real dynamite, whereas a desk bureaucrat is only sitting on the explosiveness of his own anxieties. Yet prison guards are not so different either. What characterizes all state employees is that they want each day to be like the next day. Prison guards most of all. Each day, for eight hours, they must report to a city of convicts and try to administer it. These guards are like occupation soldiers in a foreign land. It is to their interest that everything remain the same. That is their safety. If breakfast is served to convicts at seven each morning, why, then, an execution at sunrise will require the authorities to keep the prisoners in their cells. That will disrupt the serving of breakfast. Convicts who have empty bellies in the morning can stage a riot by noon. Any disruption of routine could, conceivably, prove fatal to a guard.
So, the impact on a prison of even a solitary execution is vast. To the inmates, one of their own is going to be assassinated. As the citizens of a city-state whose boundaries are the penitentiary walls, they see it as one more outrage perpetrated by the occupying powers. Prisons may be administered by wardens and corrections officers, but they are kept in peace or are agitated by the prisoners, and it is the philosophy of the most determined convicts that gives the city-state its prevailing mood. Convicts do not necessarily see themselves as criminals, or maladjusted members of society. They can feel like occupied but unconquered partisans. A convict sees his own life from the inside, from his insides. His insides feel just as outraged by an injustice done to him as any law-abiding citizen.
Possibly, the convict is more outraged, since “law-abiding citizen” is just a couple of banal words, not an actual taxpayer. Which of us in the confessional of our heart would pretend to be law-abiding? No, we are usually full of guilt at all the little laws we break and do not pay for. Whereas the convict is suffering overt punishment. Often he does not feel wrong so much as trapped. The real criminals, goes prison lore, are on the outside slurping up fortunes at the money trough. A convict’s rage at any injustice done to him is large, therefore, and his solidarity—it is the word—with other convicts can bear comparison to the feeling of Arab terrorists for border Arabs, or of Israeli commandos for Jews who have been victims of terrorists.
The authorities in a prison are hardly ignorant of this view. They live with it, after all. So they know what the impact of an execution will be on the peace of the daily routine. Yet that is only part of their problem. They also have to carry off the job without looking sadistic or ridiculous, and there is so little precedent for an execution. Indeed, before Gilmore, there had not been an execution in America for ten years. So almost all the steps will be untried. To a bureaucrat, lack of precedent is equal to lack of bread. In a state which does not have a professional executioner or ha
ngman, but a statute which calls for a firing squad, the warden can go through many an anxious hour trying to decide who he will use.
It is, of course, not hard to find volunteers. For that matter, police officers will appear from everywhere on the day of the execution, and happy to be invited. To be there is a mark of status. It is also no surprise that a good many people have applied for the firing squad, all perfectly willing to pull a trigger as part of their duty to society. Of course, they have been refused. How could the state devise a psychological test that would protect society from the volunteer rifleman who might be a psycho himself? Only one conclusion is possible: State employees must pull the triggers. They cannot, however, be correction officers from the prison, or the convicts, listening to the gossip of the guards, might ferret out their identities. They must be state police instead.
Of course, the authorities also have to protect the firing squad from any feelings of future guilt. Ergo, they decide that one of the five riflemen will not draw a bullet but a blank. Then, goes the theory, nobody on the execution squad will know if his gun has fired a real round. Considerately, nobody wonders where you would find a skilled rifleman who does not know by the kick of his shoulder stock whether he has fired a real round. In the event, Gilmore’s heart was certainly pierced by four bullets placed close enough together to be covered by a fifty-cent piece.
Any state of our union about to have an execution will have to confront some unaccustomed and large operations. Hundreds of press and media people are going to fly into the state capital. Demonstrators opposed to the execution will mass by the dozens, the hundreds, or will it be the thousands? One does not know in advance for what to get ready. It is the kind of panic that tempts state authorities to call in federal authorities for crowd control. Meanwhile, television cameras are going to be everywhere. A central obscenity soon dominates. It is that none of the locals, not even the children, escapes the knowledge that one man in their midst is going to be dead, and the state itself will be the killer. That proves more compelling than murder in the next neighborhood. Criminal slayings are horrible, but comprehensible. We all have a touch of murder inside us. There is, however, something repulsive, but withal riveting, about the state executing a man. That is like hearing of a human who walks around with a steel heart. You could not take your eyes off him. Today, we have a man behind bars who is absolutely alive but will be a corpse tomorrow. He is breathing eternity itself. Unless the law gives a reprieve.
That is the next possibility that attends all executions. Reprieve. It always sparks a circus of lawsuits. One legal intervention starts to jump on the back of another. To the courts, it is horrendous. Lawyers begin to look like charlatans and judges like clowns. Every safeguard written into law serves as fodder for a new headline. “YOU’RE ALL COWARDS!” GILMORE TELLS COURT. In the name of carrying out the law, the law seems ready to fall apart.
Then the hour of execution arrives. None of the press will see it, but no matter. They wait outside in hundreds of cars and vans that jam the prison parking lot. Through the night they start their motors to keep warm, and nip at the firewater in their flasks. If you cannot get drunk after freezing through a January night waiting for a man to be shot, when can you booze it up? The man was unknown six months ago, one more con with half his life in jail, now out on parole and getting into anonymous scrapes. By this night in January, he has become one of the best-known faces in the world. Time magazine, in the roundup at the end of the year, put his picture on the same two pages with Jimmy Carter and Rosalynn and Miz Lillian, put it there with Betty Ford and Mao Tse-tung and Henry Kissinger. What a deterrent!
To be fair, this was no ordinary execution. Gilmore was asking to be shot. Over and over, week after week, he had been saying that he preferred execution to life imprisonment. The question of capital punishment was being underlined in royal purple ink. So long as a man did not want to be killed, society could feel compassion and commute the sentence. But Gilmore was saying I do not want your compassion. Life imprisonment is not life. It is the misery of my body and the death of my soul. In public, he was virtually saying, and in private, in his letters, he was actually saying: I want to die so my soul can live.
Gilmore was thereby making a political statement. Society, he was declaring, has no rights over me. It only has power. It can kill me, but I will not allow it to tell me how I must live the rest of my life. He was striking a blow in favor of capital punishment. To liberals who believe society has some claim to determine the nature of your life, but no rights over your death, Gilmore was reversing all the signals.
Now the courts were in the shadow of another paradox. Suits were being brought to keep this man from his own execution even though he had asked for it. That made capital punishment the undeclared defendant. Society may have no right to carry out a death sentence, became the argument. In part, that was reaction in advance to the obscenity of the oncoming act. “We didn’t tell you how we touched everything,” a columnist, Bob Greene, would write after the press was allowed in the execution chamber. “We didn’t tell you what we did to the death chair itself—the chair with the bullet holes in its leather back … didn’t tell you how we inserted our fingers into the holes, and rubbed our fingers around, feeling for ourselves how deep and wide the death holes were.” Obscenity, however, was not only in the aftermath but in the concept itself. For who, finally, went the liberal argument, had the right to be an executioner? Prosecutors and judges were not free of guilt nor pure of motive. Politicians were certainly not elevated above corruption. Yet they were also public officials. None of these people had the right to decide whether a prisoner should or should not live. Indeed, government officials often pushed for a death penalty because polls indicated it would hurt them politically if they didn’t.
All the same, Gilmore had put the liberals in a quandary. He wished to die, and that was his private right. Yet, if it were suicide he desired, then, decided the liberals, pure suicide was what he should choose. He must not call on the state and all the machinery of the state to be his accomplice. There were more than five hundred men on death row in the fifty American states. Gilmore’s death might encourage other states to go back to capital punishment after a hiatus of ten years in which no one had been executed. That moratorium, obtained by a few landmark cases in the Supreme Court, had to be kept. The prevention of capital punishment was a line of defense against the taking of life by the state for other reasons. If government officials grew accustomed to committing judicial murder, it would eventually—went the reasoning—seem less unnatural to execute people for political crimes. Kill yourself if you must, said the liberals to Gilmore, but take some pills, or cut your wrists. Keep the state out of it.
Gilmore, however, had his preferences. He would escape if he could. That was the best of the choices. But if he couldn’t, he would accept execution, so he said. And if the courts gave him an unwanted reprieve, then and only then would he commit suicide. But in his mind, and he declared it often, suicide was the least attractive alternative.
For one thing, it was demeaning. It was not the same, went Gilmore’s unstated argument, to do it yourself or have others do it. That was equal to the difference between announcing “I am wrong” or telling you “They say I am wrong.” That was a clear difference. On reflection, there might be another.
For to die alone, by one’s own hand, could take courage, but not so much as he would need to meet the hour of death in front of others. That would be an extreme test. Think of the terrors an actor must go through on first night if a play depends on his performance. Add the courage it will take to be prepared to step forward at the final curtain and stop four bullets with one’s heart. That is an impossibly romantic role. Of course, Gilmore felt his life would begin with his death. “I lived a stupid life,” he could have been saying. “Let me at least die well. That is the only way to redeem my pride.”
It was in the whole tangle of these thoughts that I began to stammer on that television morning talkin
g to Phil Donahue. “Yes,” I said, “maybe we need a little capital punishment,” and knew it was hopeless to explain. Capital punishment was embarrassing for the state, I could have said, and a meaningless punishment for ninety-nine out of a hundred men on death row—they had been there too long. Yet I also thought that once in a while, as a special solution, if a man or woman wished to die at the center of the stage, full of vanity, pride, and even some sense of atonement, well, that should also be a human right—to choose the most dramatic death possible, rather than the most delayed. If one believed in a soul that endured beyond one’s body, the manner of one’s dying might be the most important act of life.
All the same, the real question was still unanswered. Could capital punishment ever be justified when the condemned did not wish to die? Society, Ed Koch was still there to say, had a “right to demonstrate its sense of moral outrage against particularly heinous crimes.”
Well, that, on further reflection, also begged the question. Such a remark assumed that society was good, whereas society might actually be in danger of breaking up. It could be clearer to say that society had not a right but a need to express its outrage. Maybe the grim truth was that society—this screaming gaggle of us all—was simply not large enough, generous enough, compassionate enough, no, not Judeo-Christian enough to tolerate a world where no killers were destroyed for their deeds. In that case, the abolition of all executions might be equal to extinguishing some last vital instinct of revenge. We might all sicken thereby a little further.
Mind of an Outlaw: Selected Essays Page 39
