Time was, executions were prime entertainment in America: large crowds would gather to watch a court sanctioned hanging — or a well publicized lynching. Eventually, the barbarity of this public spectacle upset the voting public, so now, the execution takes place in a private ceremony, in front of invited witnesses. Replacing the quick, rough, and often racist judgements of the that bygone era, we now have a nearly endless series of appeals, stretching on for decades, as the court system tries in vain to assure that it has removed every possibility of a flaw in its procedures. Instead of the old fashioned rope, we attempt to render death quickly and humanely by applying new fangled technology: formerly, the electric chair or the gas chamber, and now, a complex cocktail of intravenous drugs. This approach is difficult to administer: competent medical professionals won’t cooperate because of a code of ethics that clearly states that they “should not be a participant in a legally authorized execution,” and pharmacies are unwilling to have their brand associated with drugs used to kill people. However, executioners muddle through somehow, though occasionally they thoroughly botch the job.
Thus, we come to the Supreme Court case, Glossip v Gross, which challenges the constitutionality of this absurd parody of a medical procedure. The court decided, “Because capital punishment is constitutional, there must be a constitutional means of carrying it out.” So even if the foes of capital punishment had won this battle and the court had decided that the method Oklahoma currently uses didn’t meet the requirements of the Constitution, it would have been at most a temporary glitch. Another method would be found that was acceptable to the court, perhaps the firing squad employed by Utah.
I oppose the death penalty, not on constitutional, but on religious grounds. Quakers often say there is that of God in every person, and nothing denies the divinity of another more than putting him to death. Capital punishment is simply contrary to the message of forgiveness, redemption, and love that is at the heart of the teachings of Jesus. However, as important to our society and culture as these teaching are, it would be inappropriate for the Supreme Court to apply them to the law of the land.
My second objection to the death penalty, though also religious at its core, is one that the justices could more appropriately consider: humans, being less than perfect, make mistakes. Despite everything that we have done to insure that the courts are fair and just, we convict people who are innocent of the crime. In capital cases, these flaws are fatal.
In an ideal society, we would not have to sit in judgement of our fellow man. However, in this world, we must. But our judgement should not be a matter of life and death. The American court system may be among the finest of human institutions, but it is not divine. We should not invest the courts with the authority to take a human life: such judgements are not ours to make.
The essential problem is that human affairs are complex by nature and complicated by circumstance. Prosecutors become over zealous, excited more by the prospect of a major victory than by revealing the truth. Defense attorneys, especially those for the indigent, are often underpaid, overworked, and sometimes unable to provide the vigorous defense that our system of justice depends on. Witnesses have imperfect memories and their own motivations. They sometimes make honest mistakes, identifying people incorrectly, and sometimes they lie. Scientific evidence is subject to misinterpretation and contamination, and even our most respected institutions have given evidence that was later determined to be unreliable. Even confessions are unreliable: sometimes they have been coerced. Out of this morass, jurors are asked to put their own prejudices aside and decide what is true beyond a reasonable doubt. It is not surprising that they get it wrong occasionally.
This argument is the one that is carrying the day. The Innocence Project has identified hundreds of cases where they were able to prove people innocent of the crime for which they had been convicted. Faced with a system that had wrongly convicted so many, Governor Pat Quinn concluded that the system could not be fixed: he led the charge to abolish the death penalty in his state. Illinois became the nineteenth state to abolish capital punishment, the fourth to do so in the last couple of years.
Capital punishment was accepted by the framers of the Constitution, including those who wrote the “cruel and unusual punishment” clause of the Eighth Amendment, and it has been reaffirmed by the court. Despite what Justice Stephen G. Breyer says in his dissent in Glossip v Gross, despite the fact that no other modern Western democracy still executes people, capital punishment is allowable under our constitutional for now, and probably in the foreseeable future.
However, that does not mean that capital punishment is here to stay. Our culture is changing rapidly. We should focus our energy on making sure this change is for the better. One way to do this is to support the Innocence Project: not only does it right the wrongs of our imperfect court system, but it keeps reminding the public that these flaws exist. As public opinion comes around, we need to elect legislators who will abolish the death penalty, not because the Constitution requires it, but because it is the right thing to do for our society. Only then will we rid our government of this barbaric practice.