The following guest post is from Anthony Santoro. Santoro teaches at Heidelberg University and the Heidelberg Center for American Studies. His research focuses on religion, religion and politics, religion and the law, American Studies, culture and sports. His first book is Exile and Embrace: Contemporary Religious Discourse on the Death Penalty (Northeastern University Press 2013). He joins John Bessler and Robert Blecker in contributing to a relatively recent scholarly discussion of the death penalty in the United States.
Executions have been in the news a great deal in 2014, and much of the time, they have been so because they have been “botched,” to take the word most commonly applied to executions that do not go “by the book.”
“Botched” is a peculiar word for this, in a way—it seems more apt to a Three Stooges scheme than a literal matter of life and death. In another way, it’s perfectly appropriate—this ‘soft’ register fits in with the way the American death penalty is designed to hide its violence as best it can.
The effects of hiding this violence are open to debate; some, like Robert Blecker and Alex Kozinski, are troubled by the dishonesty of the process, and argue that we should be more upfront about the violence that we are doing, that we should engage the question of what it means for a society to claim the right to do that violence and then to carry it through. As Kozinski wrote about his struggle over this in an essay, “It… bothers me that we mask the most violent act that society can inflict on one of its members with an antiseptic veneer: Isn’t death by firing squad with mutilation and bloodshed, more honest?” (Alex Kozinski, “Tinkering with Death,” 12)
More honest? Certainly. More efficacious? Possibly. The other side of this is the prophylactic effect of masking the violence in the system. Hiding the violence spares us from it, allows us to allow it to be carried out in our names without having to engage as deeply with the moral questions that death penalty supporters like Kozinski and Blecker raise alongside death penalty opponents like Sister Helen Prejean. Ronald Reagan once made this point, declaring that a lethal injection was the ideal method of execution because it would “spare the executioner—and by extension the rest of us—anguish.” (Quoted in Jackson, Jackson, and Shapiro, Legal Lynching, 113)
We have seen this kind of anguish play out this year in one botched execution after another—in Ohio, Oklahoma, and Arizona. One of the twists in the current iterations of the debates over capital punishment is a turn toward blaming opponents for creating the circumstances within which these botched executions are inevitable.
In an editorial earlier this summer in the Dallas Morning News (“Death penalty opponents are making capital punishment more gruesome,” June 20, 2014), Boer Deng and Dahlia Lithwick argued that the problems with Oklahoma’s by-now-infamous botched execution of Clayton Lockett was the fault of death penalty opponents. Deng and Lithwick want abolitionists to confront the painful “fact” that “the real culprit in the death of Clayton Lockett is opposition to the death penalty.” The Catholic News Agency published an article late last month about Arizona’s botched execution of Joseph Wood that quoted a spokeswoman for the state’s attorney general as saying that drug manufacturers had succumbed to pressure from death penalty opponents and cut the state off from the chemicals it had formerly used, forcing Arizona “to turn to other drugs” (Kevin J. Jones, “Ariz. inmate’s grueling execution lamented as preventable”). NPR also ran a piece (Alan Greenblatt, “Are Opponents of the Death Penalty Contributing To Its Problems?”) quoting Blecker and his experience “’at national and international conferences, as the lone death penalty supporter, where devout abolitionists openly exhort each other to gum up the works and delay’” executions in the hope of preventing them altogether. This tactic, supporters lament, goes hand-in-glove with protests against drug manufacturers that have compelled the states that still utilize the death penalty to experiment with new drugs.
The problem with the claim that opponents are to blame for the problems in execution (no pun intended) is that it is untrue. This claim would make sense only if the death penalty were mandatory for specific crimes. It is not. When the Supreme Court declared the death penalty unconstitutional as practiced in Furman v. Georgia (408 U.S. 238 [1972]), a majority of states revised their capital punishment laws to try to meet the Court’s standards. In Gregg v. Georgia (428 U.S. 153 [1976]), the Supreme Court acknowledged that the states had rectified the faults they had seen in Furman and restored the death penalty.
As part of the same packet of cases, however, the Supreme Court also handed down its decision in Woodson v. North Carolina (428 U.S. 280), which held that North Carolina’s mandatory death penalty statute was unconstitutional. Only were such sentences valid would abolitionists be to blame for Oklahoma’s botched attempt to execute Lockett, and all other such mistakes.
For an offender to be executed, a minimum of four separate decisions have to be made. The offender must first choose to commit the crime, that is, they must possess mens rea, or criminal intent, at the time of the commission of the offense. Second, because the Eighth Amendment, via Woodson, prohibits mandatory death sentences, prosecutors must elect to bring a capital charge in response to the offense, rather than pursuing life in prison. This is known as “prosecutorial discretion.” Third, the jury must find the defendant both guilty and deserving of death. Capital juries may sentence a defendant to death only if they are convinced that the case meets certain statutory qualifications. They may sentence that same offender to life for any reason at all, however, and thus must choose death over life. Fourth, every state that retains the death penalty has clemency procedures in place. It is true that these procedures can be manipulated so as to make clemency all but impossible. The fact that each death penalty state has such procedures, however, demonstrates that here too death must be affirmatively chosen, rather than settled on by default. This oversimplification of the capital punishment process shows how many decisions have to be made in order for an offender to reach death row.
The death penalty as it is currently used in the United States is discretionary at every stage of the process. It cannot be compelled. As such, the culpability for the states’ mistakes lies with those at each stage of the process, beginning with the offense and ending with the decision to attempt to execute him using an unproven method.
At no point can death penalty opponents be deemed culpable for decisions made by those with the authority to do so. The culpability lies with those making the decision, and not with those who, pointedly, are not trusted even to decide an offender’s guilt. We could as well blame the European producers of the drugs typically used in lethal injections for the recent botched executions—and death penalty supporters are doing so—and we would likewise miss the point.
Deng and Lithwick’s piece presents a false choice between “insisting that no capital punishment system will ever be tolerated in the U.S.” and working to ensure that executions are as humane as possible. This displaces the responsibility and culpability for executions onto those who are working to end them. This is a false choice because it presumes what cannot be presumed—that death sentences can be compelled.
The real choice is between confronting the violence that is done in our names honestly and with moral reflection or continuing to hide it behind veils of secrecy and misleadingly medicalized executions. (The subsidiary question, it seems to me, is when and under what circumstances we countenance boycotts and other forms of protest in support of an aim, and when we disagree with the aims and thus dismiss the tactic as illegitimate.) That choice—whether to expose and confront that violence—belongs to all of us, and not only on this issue. Those working to end the death penalty have made it. The ultimate responsibility for executions belongs first to those who avail themselves of it and then to all of us, for that violence is carried out in all of our names.
3 Thoughts on this Post
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Thanks so much for this excellent piece.
I am fascinated by the perverse logic at work in, e.g., Lithwick’s argument–that a protestor who tries to resist or forestall evil becomes the author of a greater evil (by creating hardships for those entrusted to carry out the state’s violence).
This argument seems symptomatic of a larger anti-democratic tendency within neoliberal thought, similar to the way many Nader voters were treated as “authors” of the most recent Iraq War, and similar also to the way that victims of military offensives are re-situated as aggressors.
This essay is very valuable, as well, for opening up a serious question for historians: if post-’76 death penalty executions have been entirely discretionary (one might say, with students of sovereignty, that all executions have always been discretionary– that might even be their political-theological point–as we see in the prevalence of performed mercy, by way of the pardoning power, in many otherwise Draconian regimes), are state-level executives murderers?
I think that, faced with this question, many historians would be likely to equivocate, or refuse to answer the question definitively. But it strikes me that an intellectually honest historian should be prepared to answer “yes” or “no.”
Thanks first to Ray for posting and to Kurt for the thoughtful response.
Kurt, you raise a number of points that I wanted to respond to directly:
“I am fascinated by the perverse logic at work in, e.g., Lithwick’s argument–that a protestor who tries to resist or forestall evil becomes the author of a greater evil (by creating hardships for those entrusted to carry out the state’s violence).”
The argument in a different direction is a bit stronger, rhetorically, where proponents argue that opponents are managing to throw various spanners in the procedural works and then raising attacks on the constitutionality of the penalty given the delays that they’ve successfully created. The great thing about this argument is that it comports with common sense; the downside, however, is that it is factually incorrect, and that appeals were severely, severely curtailed almost twenty years ago (via the ’96 Anti-Terrorism and Effective Death Penalty Act) and the delays have only increased. Most of the reason for the delay is the paucity in representation, as the recent California case made perfectly clear. So while the argument bears some merit facially, it falls apart under analysis—for all that that matters in the court of public opinion.
“This argument seems symptomatic of a larger anti-democratic tendency within neoliberal thought, similar to the way many Nader voters were treated as “authors” of the most recent Iraq War, and similar also to the way that victims of military offensives are re-situated as aggressors.”
I don’t know that I’d say that this is limited only to neoliberal thought; it seems rather to be part and parcel of American republican thought. Sure, “Don’t blame me, I voted for Kodos” became a catchphrase in a neoliberal era, but I think about the rhetoric in the Jefferson-Adams elections, and other various iterations of “you voted for it [or them], you did it” and I think that it’s got a longer history than the neoliberal era.
“if post-’76 death penalty executions have been entirely discretionary (one might say, with students of sovereignty, that all executions have always been discretionary– that might even be their political-theological point–as we see in the prevalence of performed mercy, by way of the pardoning power, in many otherwise Draconian regimes), are state-level executives murderers?
I think that, faced with this question, many historians would be likely to equivocate, or refuse to answer the question definitively. But it strikes me that an intellectually honest historian should be prepared to answer “yes” or “no.””
To this, I would first point out that a Foucauldian explanation of the American death penalty has relatively little to offer, as David Garland has made plain in his recent work—the symbolic intent and affects are too different from the regicides and other models that Foucault was focusing on from the European context.
That said: To play out the other side of the argument: One would almost have to equivocate pending further definition of the question (naturally). There are four basic models of clemency in the thirty-two (for now?) death penalty states. In a plurality of them, the executive has sole authority; the other three models involve boards ranging from advisory to determinative (as in Texas, where Rick Perry technically cannot grant clemency by himself).
In states like VA, where the executive possesses full clemency and pardon authority, then the question is more on directly on point, but even still, I think this gets less to the question of whether the executive commits murder and more to the dispersal of culpability within the system. To even phrase the question in that way is to presume that the death penalty is per se illegitimate—a position with which I happen to agree, but with which the voters of the majority of states have not yet. Where the death penalty exists, it is at least democratically legitimate (begging all of the ancillary questions that come behind that pointed phrasing). Given that, then no, Virginia’s executive is not a murderer for allowing the laws to be carried out in accordance with democratic will—judicially, not extra-judicially.
But the more pointed question, to me, is where the authority actually lies. Does the offender execute themselves by committing a capital-eligible offense? More than a few of my interlocutors told me exactly that as I was researching the book. Is it the jurors who recommend a death sentence? Is it the trial judge who certifies the sentence? The appeals courts who either decline to overturn or remand (on direct/mandatory appeal) or decline to hear or take action (on collateral appeal)? The executive, or board, for failing to exercise clemency? Governors in Ohio, New Mexico, and Illinois have emptied death row, which is certainly a kind of precedent and raises a different set of questions (i.e., on what grounds do we judge whether their action is either more or less legitimate than the executive who does not do so?), as do actions taken by people like Kitzhaber and Hickenlooper, who have taken the less “intrusive” step of simply declaring moratoria. (Aside: chapter 5 of Exile and Embrace goes into questions like these from a different angle—you may find it interesting.)
Coming back to your original question, though, I, again, playing out the other side, want to turn it around and look at the presumptions it implies from a different angle, that is, do we want executives to undertake such unilateral action in defiance of popular will, or do we only want them to do so when we agree with the ends to which action would lead? If I’m honest, I’m much closer to the latter, which is an entirely different bag of cats…
Thanks for this wonderfully thorough, generous, and thought-provoking response!