UNESCO COURIER
On the eve of the U.S. presidential elections, the death penalty — repudiated by almost all democratic nations — is notable only for its absence from debate. Abolitionists are changing their tactics to ‘win over’ a majority
By IVAN BRISCOE
UNESCO Courier Journalsist
Though the legal battle was arduous, Gary Gilmore eventually got what he had longed for on January 17, 1977. Tied by nylon rope to an office chair, with a white target disc pinned to his chest, the petty thief and lovesick murderer stared down the barrels of five state rifles. After ten idle years, the firing squad in a Utah jailhouse sent a signal around the world: executions in the United States were back.
Since Gilmore’s landmark demise — hastened by his own preference for death in place of jail — a further 663 people have followed, killed by lethal injections, electric currents or poison gas administered on judicial orders. What started in the late 1970s as a dribble of ill-fated convicts had, by the turn of the century, become a regular feature of the nation’s public life, played out to a peculiar combination of silence from U.S. politicians and last-ditch pleas for clemency from the European Union, Amnesty International and other moral bulwarks of the West.
The contrast with the rest of the democratic world- of which the United States considers itself the leader — is more marked on the issue of the death penalty than possibly any other aspect of domestic policy. While U.S. foreign policy bears down on “rogue states,” its executioners keep good rhythm with the likes of Iran and Iraq (though remain way behind group leader, China). When a proposed worldwide moratorium on the penalty came up for debate in the UN Human Right Commission in April 1999, the U.S. predictably voted against, along with Cuba, China, Sudan and nine other nations. Some 108 countries, on the other hand, have in law or in practice abolished the punishment, with Turkmenistan and Ukraine among the most recent to enlist.
The appeal of tough justice
For the average high-level U.S. politician, however, the death penalty has only minor administrative defects, if any at all. Of the four presidential and vice-presidential candidates lining up in elections on November 7, all support the punishment — from Democrat candidate Al Gore to Republican George W Bush, who has ratcheted up its use in his last five years as Texas governor, granting only one reprieve and rubber-stamping 144 executions. Public support for the penalty, in spite of a major new abolitionist offensive that has helped cut approval ratings from a high of 80 per cent, still hovers over 60 per cent.
“I call it the silver bullet, in reference to the Lone Ranger [a U.S. television series set in the Wild West],” explains Robert Bohm, a professor in criminology and death penalty expert from the University of Central Florida. “A lot of people in this country who are very fearful of crime, whether rationally or not, are looking for a silver bullet to deal with it — and the death penalty is a very attractive bullet.”
A host of arguments, used previously by philosophers as venerable as Thomas Aquinas and Jean-Jacques Rousseau, have helped make the penalty an emblem of tough justice. Despite a lack of agreed data, defenders of capital punishment in the U.S. argue that the system is cheap, acts as a deterrent and prevents supposedly “liberal” parole boards from releasing jailed murderers into an unsuspecting world — a practice that Dudley Sharp, from the Justice For All project, says has led to 10,000 killings since 1971. Above all else, the penalty is vaunted as the only true outlet for a society outraged by heinous crimes; as Rousseau wrote, “in killing the criminal, we destroy not so much a citizen as an enemy.”
In response, a new generation of abolitionists has quietly shed its moral indignation. No longer are the lives of serial killers and sociopaths held to be inherently worth preserving. Instead, press-friendly groups like the Death Penalty Information Centre stress the injustices of its application, from the racial inequities that it breeds to the risk that innocents might be slaughtered.
For the Centre’s director, Richard Dieter, this strategy aims to conquer America’s famed middle ground, that majority of people who seem to support the penalty without great conviction or passion. “The death penalty seems to have all this baggage, all these problems — innocent people, international opposition, unfairness, racial problems,” he argues. “That’s a lot of baggage, and it may not be worth it.” In January, to Dieter’s delight, Illinois’ Republican governor shelved the penalty over concerns that innocent people might be executed. The governor, fittingly, had been a lifelong supporter of capital punishment.
Miguel Angel Martinez is one of around 3,600 inmates whose life is at stake. In 1992, a Texan court found the prospective Air Force cadet guilty of murdering three men in a gang knife assault ‑an attack in which his new lawyer insists he was a “bit player.” He was sentenced to death at the age of 17, four years before he was legally entitled to drink beer.
Writing from what he terms the “man-made hell” of Terrell Unit in Texas, Martinez says he harbours hopes for the new abolition campaign. But death row has razed all his faiths. Religion he sees as a “hollow vessel,” while society is a place of hate: “you know, there is still an actual conditioning in people to accept punishment even when other options exist … We are all sadists and masochists to a degree.”
For many outside the United States, it is precisely this unnecessary cruelty that taints the death penalty, even though the same countries that now scorn the punishment enjoyed their own illustrious moments with the noose, guillotine and hatchet man. British law — which heavily influenced practice in its colonies — was bent on execution. By the 18th century, for instance, 222 crimes were punishable by death in Britain, including robbing a rabbit warren and cutting down a tree. The public, in turn, liked nothing better than a picnic at the gallows. When one notorious murderer was hanged in 1807 in London, 40,000 people turned up, though an ensuing mass frenzy killed a hundred of them.
Following World War II and the spread of codified human rights, many nations reconsidered, then scrapped the penalty. But the United States proved an exception to the rule: even in the ten-year hiatus from 1967 to Gilmore’s execution, courts and states, acting on a temporary plunge in the penalty’s popularity, shunned what one Supreme Court justice termed the “machinery of death” instead of dismantling it outright. Indeed when the Supreme Court issued its Furman vs Georgia rulings in 1972, declaring the penalty to be “cruel and unusual,” furious southern state legislators busied themselves with redrafting their statutes to accommodate the Court’s objections. As violent crime climbed steeply upwards in the recession-hit 1970s, a new-look death penalty was ready and waiting in several state law books. Some 38 states now feature the sentence in their penal codes, while around three per cent of the nation’s convicted murderers are dispatched to death row.
Victims’ rights and the draw of opinion polls
Underlying this penchant for capital punishment — particularly marked in eight southern states, home to 90 per cent of recent executions — appears a deep-rooted sense of what justice means. When Alan Wolfe, a Boston University politics professor, went to Texas to research opinions towards the 1998 execution of Karla Faye Tucker, he was astonished by the response: rather than feel pity for the cheery 38-year-old inmate who had repented and “found God,” most people believed death to be perfect retribution for her pickaxe slaying of an ex-lover.
“I think it touched on a very basic, fundamental view of society that people have, that is pre-political and pre-religious, that has to do with an inherent sense of what justice means,” says Wolfe. “It’s about paying for your sins and creating some sort of equilibrium: a life is taken, and therefore another life should be taken.”
Retribution and scant pity for the murderer dominate the thinking of those who fervently back the penalty — especially the victims’ relatives. The first relative allowed under a new Texan law in 1996 to witness the execution of the murderer recalled how “I would like to have seen him humiliated a bit. I think he should have been brought in and strapped down in front of us.” In radio talks shows across the land, callers demand that killers be “fried” so they can “meet Hitler.”
The irony is that this atavistic sense of justice is so out of synch with other trends in U.S. culture. Most Christian teachings point to the importance of forgiveness, and most Americans are practising Christians. Daytime television has made therapy, and its motifs of confessing past sins and reinvention, central to people’s lives. But murder and punishment, above all in the south, still follow the dictates of an “eye for an eye.” And while violent crimes soared over the past two decades, claiming the lives of 500,000 Americans (with around 17,000 murders a year at present) and drawing gruesome media coverage, adherence to this philosophy of uncomplicated vengeance grew inexorably. The victim — and concepts of victimhood — now stand at the heart of the modern U.S. death penalty, whether in the sentencing phase of the murder trial, when bereaved relatives take the stand, or in state politicians’ rhetoric. “If the debate is just over the penalty or not the death penalty,” sighs Dieter, “it’s like asking whether you’re for criminals or victims.”
Public opinion in countries like Britain or France, however, was hardly very different. In almost all cases, clear majorities supported the penalty, though political leaders resolved to push through with abolition all the same. Politicians in the United States, on the other hand, have been unwilling or unable to emulate these feats. The generation that was so closely linked to the civil rights era — the Kennedys, Martin Luther King — may have been equipped to do so, but its figureheads were fated to die early. Meaningful debate has been further impeded by the penalty’s deployment at state level, often boxing the issue into a local crime perspective, and by the absence of other proposals such as gun control or poverty programmes, ruled out by costs and lobbies. But more than any other factor, it is what observers see as the frenetic nature of U.S. democracy, with its comparatively weak political parties, incessant elections and hyper-sensitivity to opinion polls, that has exposed candidates to constant courting of voters’ hunches.
The price of opposing the penalty became evident in the mishaps of Michael Dukakis, Democratic presidential candidate in 1988, who turgidly repeated his opposition to the penalty when asked what he would do if his wife and children were slain and thus was branded “weak” on crime. All politicians swiftly learnt that support for the penalty, though it may not have mattered to them much as an issue, was a vote-securing synonym for “toughness” on crime. For elected district attorneys (local prosecutors), who often later become judges, exploitation of the issue became rife. “It’s a quick way to get on television and get your name in the paper,” says Michael Mears, from the Georgia Indigent Defense Council. “It’s a placebo for the public, like giving the patient a sugar-coated tablet.”
With victims occupying the moral high ground and politicians unable to draw themselves away from the glitter of a poll booster, the practical tack taken by the new abolitionists seems sensible. Already they appear to have convinced the majority of the American public that innocent lives may have been shed. Dieter’s centre lists 87 people exonerated from death row since the penalty’s reinstatement, while several DNA tests are currently underway in an effort to discover the first scientific confirmation of an executed innocent.
Racial bias in imposition of the death penalty has provided yet further ammunition for the punishment’s opponents. Although black murderers are proportionately under-represented on death row, there is undeniable statistical evidence showing that death penalties are imposed almost entirely (over 80 percent) when victims are white. In Georgia, meanwhile, Mears reports that only one out of 159 district attorneys is black. For many campaigners, says criminology professor Robert Bohm, the penalty is simply “a new form of social control that replaced slavery.”
Calls for a moratorium
In the case of Martinez, prejudice (he is Mexican-American), poverty, and the fact that an accomplice’s father was a local judge appeared to have vitiated all chance of leniency. Indeed his legal saga reads like a litany of the death penalty’s iniquities: his trial lasted five days, the alleged accomplices are free, and a large part of the local district attorney’s office has since been sacked for taking bribes.
“It is like two people playing chess, one who is very good at it and another who is just learning how the pieces move,” he recalls of his trial. His case and others have led campaigners to hope a moratorium may be called as the “silver bullet” is sullied by procedural failure, and maybe buried by a richer variety of crime policies. Sceptics for their part warn that the machinery of death could just be reinvented in a sleeker, “fairer” guise. But one thing seems clear: if the penalty goes, it will not go at the behest of an ethical revolution. As Wolfe argues, “if you leave out the morality entirely, I think Americans would be very sympathetic to halting or at least slowing capital punishment.”
