Editorial from The New York Times, December 12, 2010
In the current "New York Review of Books," the retired Justice John Paul Stevens makes a compelling argument for abolishing the death penalty. He explains how it fails to meet the Supreme Court’s own standards for execution and persists only because of misguided political and cultural reasons.
When the court reinstated the death penalty in 1976, it said an execution could avoid being a “gratuitous infliction of suffering” if it served the purpose of incapacitation, deterrence or retribution. Justice Stevens argues first that it is now unnecessary for incapacitation because “the remedy of life imprisonment without the possibility of parole” has, over the last three decades, been enacted in 48 of 50 states.
While some scholars disagree, the retired justice is also persuasive that execution serves no “significant deterrent purposes,” especially since long delays in many executions undermine any potential for deterrence.
As for retribution, he contends that an execution could never satisfy survivors of a murdered loved one. As for any sense of public retribution, the spectacle of execution has given way to largely private proceedings because of government embarrassment. While lethal injections are hardly humane, in the justice’s view the retribution they provide is feeble.
Hanging over all of this analysis is the issue of race. Justice Stevens is convinced that the death penalty has been applied so unfairly that it cannot be defended.
The reasons the death penalty persists, he argues, are political and cultural. That is the core point of "Peculiar Institution: America’s Death Penalty in an Age of Abolition" by David Garland, which Justice Stevens writes about in his essay.
The justice says that endorsing capital punishment is touted as a commitment to law and order — whether it was Gov. George W. Bush presiding over 40 executions in Texas in 2000 (the most ever in a year in one state) or elected judges in Alabama favoring the penalty (while unelected judges in Delaware do not). Its cultural power is demonstrated by Americans’ appetite for mysteries about murder and revenge.
While we agree with the retired justice of the Supreme Court of the United States, that the death penalty must be abolished, and that it is "political and cultural" reasons for its persistence.
In order to change the law, the daunting task of changing the culture will be required.
Perhaps the justice did not want to offend his American readers with his opaque phrase, "appetite for rmysteries about murder and revenge". That keeps it general enough not to get him into hot water with groups like the NRA 9 (National Rifle Association) whose addiction to guns, their ownership, and the citizen's right to carry arms is well documented. So too, is the intimate enmeshment of such organziations to the Republican party, and as long as that political party is politically dependent on the NRA, and on governors like former Texas governor George W. Bush (later the 42nd president), and the country is addicted to its military hard power, as a symbol of its misguided "masculinity" of the "alpha" variety, and so long as women political candidates publicly urge their male opponents to "man-up" as a phrase designed to evoke increased integrity, and as long as the high school football fields and the corporate board rooms represent the primary stages for male accomplishment, as opposed to the Carnegie Hall stage, for example, or the Lincoln Theatre, or the Kennedy Centre, or even the front of both elementary and secondary school classrooms, then the culture is and will continue to be fossilized in a failed masculinity.
It is a masculinity that cannot either sustain itself against the increasing pressure of the reality that conflict approached by means of hard power will never fully be resolved, and that conflict approached through the agency and skill of soft power of negotiation, mediation, arbitration and vulnerability is far more likely to be resolved, while also demonstrating more and more integrous courage and character and emulation than the imposition of hard power.
When some 38 of the U.S. states have re-introduced capital punishment into their law books, starting roughly in 1977, just at the same time that Canada removed capital punishment from its Criminal Code, there is a significant perceived need for this ironic form of justice. Really it is a form of injustice, but when the society has reduced its ethical and moral expectations to "what the law states and requires" that society has performed the ultimate reductionism on its people.
We ought to be able to expect individuals, families and even schools and corporations to behave in ways that far exceed the expectations of the law, since it exists and continues to be written to stop the most offensive of actions, attitudes and behaviours.
And in societies which have not made either the law or its lawmakers stand on the proverbial pedestal of power, only to be quickly knocked off that perch at the slightest deviation that the public's eye catches, the people are thereby reduced to having to "accept less" from everyone, including the state legislators.
Let's hope justice Stevens' writing will become required reading for all state legislators, and that even a few Senators and Members of the House of Representatives will commit some quiet time to read, digest and inwardly commit Stevens' thoughts to their legislative commitments.