In which I argue that complaints that the death penalty as it was enforced in Illinois does not deter or was unjust mistake deterrence or justice as its purpose.

 

Oh, well. Close enough for government work.

 

As of mid-March, almost as many of Illinois's condemned prisoners have been freed as executed under the state's current capital punishment statute. Twelve men have been put to death since 1977, 11 have been set free in the past decade, either because charges were dropped, they won acquittals upon retrial or new evidence was discovered.

 

Except among professionally outraged lobbyists, the news that the state of Illinois sends innocent people to Death Row seems not to have excited much outrage. Not even Illinois's polite middle class, whose idea of a miscarriage of justice is getting an undeserved parking ticket, has demanded a moratorium on executions, much less abolition. As for the state's sages, their proposals for reform, tellingly, would not eliminate the penalty but simply improve the process by which it is administered.

 

Which raises a question: Why does a majority of adults in the United States endorse the state's authority to kill its nastier criminals? Not only is the United States the only Western democracy that still endorses the ultimate sanction, in recent years we have expanded it. Congress not long ago authorized the death penalty for such federal crimes as peacetime espionage by military personnel and drug-related murders.

 

Here in Illinois, one of 38 states that condones capital punishment, the General Assembly has expanded the list of crimes that automatically qualify a convicted murderer for death under its revised capital punishment statute. Today, death may be sought in Illinois for anyone convicted of killing police or correctional officers, firefighters, or community policing volunteers, as well as those who kill multiple victims, kill while committing a hijacking, or under circumstances described by 14 other "aggravating factors."

 

Certainly Americans cannot support the death penalty because it works. There is no conclusive evidence that frying, hanging, poisoning, or shooting one killer deters other killers, especially when the punishment is so seldom applied or so long delayed.

 

Nor does it save money. According to the Illinois Coalition Against the Death Penalty, it costs $2.5 million to execute a person in Illinois all those lawyers, one assumes—and only $600,000 to keep him in prison for life. And if the death penalty has not rid Illinois of murder, neither has it rid Illinois of murderers. Most murderers who might qualify for the needle are never caught, or plea-bargain themselves a lesser charge; if being killed for killing is not a cruel punishment, it certainly is an unusual one in Illinois.

 

Why then? For one thing, the United States is by some measures the most Christian nation in the West. There is evidence that many jurors in capital cases vote for death on the assumption the courts will overturn the decision on appeal; believers may do something like that too, reasoning that if the courts send the wrong person to his death, God—the real supreme court—will fix it in heaven. Of course, Christians (especially Catholics) also are among the staunchest foes of capital punishment. As happens so often, the Bible offers room for many views. Christ may have warned that those who take the sword shall perish with the sword, but it is left to believers to decide whether that admonition applies to executioners as well as murderers.

 

One motive is fear of violent crime, which is pervasive (more pervasive, in fact, than is violent crime). To many Europeans, we Americans remain a half-civilized, even barbarous people, barely weaned from the frontier. And indeed, there still is a lot of Dodge City in our towns and cities. (Recall that, after Lincoln, the Illinoisan most recognized abroad before the Michael Jordan era was Al Capone.) We keep the death penalty around in spite of its manifest unreliability, the way a frail woman, home alone, might keep the rusty old shotgun in the corner. It probably won't fire, and even if it does she knows she's more likely to shoot the cat than kill a rapist, but she feels safer with it there anyway.

 

Some opponents of the practice blame its persistence on politicians. Not having a clue about how to get tough on crime, demagogues love to get tough on criminals instead. Certainly, seeking to kill killers seems to do no harm to ambitious politicians in Illinois. In less tolerant societies, the defense lawyers, judges, or state s attorneys who send innocent people to Death Row might get four years as inmates for attempted manslaughter; in Illinois, they get four years as mayors or attorneys general.

 

Of course, politicians in all Western democracies pander to their public's worst instincts, but none other uses the death penalty. Are Americans' worst instincts worse than, say, those of the Brits or the French? Some opponents think so, accusing Americans of blood lust. Most evidence suggests Americans tolerate the death penalty in spite of its violent nature, rather than because of it. Hugo Adam Bedau is Fletcher Professor of Philosophy at Tufts University. In one of his oft-quoted treatises deploring capital punishment, Bedau excoriates execution as "a dramatic, public spectacle of official, violent homicide." Official homicide it is, and violent it must be, but "dramatic, public spectacle" sounds more like the nightly TV news than lethal injection as practiced by our corrections officials. Putting killers down, indeed, is (along with impeachment debates) one of the few sordid spectacles we refuse to broadcast on television.

 

Illinois used to execute murderers by hanging them in public places, where everyone could get a good seat. We then secreted the gallows in locked jailyards and prison blocks, so that only law officers and press could enjoy the show. Hanging eventually was abandoned altogether as inhumane. (Partly, we shunned the noose for the same reason many now call for abolition of the death penalty itsell, which is that our criminal justice professionals were too incompetent to do it well every time.) The electric chair, an improvement in its day, was eventually banned for the same reason.

 

Decent people have trod this path before us; Calvin abhorred burning heretics alive in favor of the more merciful sword, and no doubt was scorned as a liberal because of it. Then, as now, these small steps toward mercy were taken not to spare the victims' agonies but the public's. Half-hearted as they seem to abolitionists, they reveal a people uneasy with the official taking of life, and eager to distinguish its barbarity from that of the executed.

 

Opinion surveys are of little use in plumbing the public mind about such a vexing subject. Few people tell pollsters the truth (assuming they acknowledge it to themselves) about their darker feelings. Can we infer a motive from the fact that capital punishment's only certain result is to reduce the state's population of social outcasts, among them mental defectives, racial minorities, addicts, and sociopaths?

 

A good example is the now famous Anthony Porter. "Porter came within 48 hours of being executed for the basic reason that his IQ was 51," says Locke Bowman, legal director of the MacArthur Justice Center of the University of Chicago Law School, recalling why the Illinois Supreme Court granted a reprieve. "If you enhance his IQ by 50 points, he would now be a dead man, and that's not the way anybody, pro or con the death penalty, wants to run our criminal justice system," he is quoted as saying in the Chicago Sun- Times. No, people do not wish an innocent man of normal intelligence to be put to death without cause. But killing a retarded man—especially one prone to violent misbehavior, as Porter was—is the way quite a lot of people want to run our criminal justice system.

 

Our Porters are our modern-day witches, fearsome and unsettling, the kind of people who have been the first to be sent to the stake in every society. Bill Ryan of the Illinois Moratorium Campaign, quoted in the Arlington Heights-based Daily Herald: "I think the idea that we're killing innocent people was just too much for people to bear." The public seems to be bearing it quite well, in fact. Perhaps that's because a cynical public assumes that while the recent Death Row escapees may have been not guilty of the crimes for which they were sentenced to death, they—most of them dangerous people with long police records and bad habits—are anything but innocent. An incompetent criminal justice system fails to punish the guilty very dependably, and a lot of people reason that if those wrongly imprisoned didn't do the crimes for which they were condemned, they probably got away with others just as bad or worse.

 

Albert Camus, among other thinkers, argued that imprisonment for life is cruel. Most apparently believe it not quite cruel enough. To allow the perpetrators of some crimes to live, even in the straitened circumstances of a jail cell, and thus to enjoy what their victims no longer can—life especially—strikes most people as wrong. To the familiar complaint that killing killers make us all killers, a decisive part of the public does not think that killing a murderer is murder, because the murderer, unlike the victim, is not innocent. The only way to prevent such an injustice is to put them to death.

 

Of course, the value of human life (the murderer's, not the victim's) has gone up in the past century or so. In colonial days, people faced death by hanging if convicted of burglary, counterfeiting, piracy, or rape, as well as murder or treason; not so long ago, Americans happily strung up horse thieves. In the modern era, punishment was limited to the taking of life, and most recently to the egregious taking of life. This trend marks social progress as much as moral progress; we are less fearful of social disorder, and so can dare to be merciful.

 

But fear of moral disorder also plays a part in support for capital punishment. The United States remains a profoundly Puritan society. Building God's city on earth means doing His work here, including punishing sinners. This desire to punish is often traced to the urge for revenge, a low desire to inflict harm with no purpose other than to assuage one's own feelings of anger. Certainly, families of victims may wish revenge, as indeed do many in the community at large when a crime makes us feel momentarily like family (as happens when a child is murdered, for example). The rest of us seek something else, something more civic-minded - the restoration of moral order, or as H. L. Mencken put it, "the peace of mind that goes with the feeling that accounts are squared."

 

Arguing against the death penalty on the reasonable grounds that it is ineffectual or uneconomic assumes that effectuality and economy are its purpose. In the end, most people support the death penalty not because they think it works but because they think it is right. Even if most people agree that it is but a gesture, they feel it is a gesture that must be made—our way of affirming that, in this place and time, there are limits, that conduct is not unbounded. Putting a murderer to death is a rhetorical gesture, aimed not at unnerving future criminals but at bolstering the rest of us. It's a dirty job, one might say, but everyone's got to do it. ●

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