The essential case for the abolition of capital punishment has long been complete, whether it is argued as an overdue penal reform, as a shield against the arbitrary and the irreparable or as part of the case against "big government." And, perhaps paradoxically, this same case has recently gained strength from the opportunistic successes of its opponents. The crudity and the exorbitance of the Clinton pro-death program nationwide, and the vileness of the locally applied Bush regime in Texas, only succeeded in awakening more widespread misgivings about the random application of the penalty, the increased likelihood of executing the innocent and the nauseating business of killing the underage and the mentally underdeveloped.
In addition, and since the death penalty invariably involves the deliberate destruction of evidence in a criminal case (by means of the official snuffing of the chief witness), the removal of Timothy McVeigh from the scene–before the background of the Oklahoma City atrocity had been properly investigated by our quite literally unbelievable FBI, which mislaid thousands of pages of paper promised for the defense–marked the zenith and the nadir of the now-federalized human sacrifice.
In this context, where even extreme conservatives were prepared to call for at least a moratorium on "the process," the Supreme Court decision in Atkins v. Virginia, handed down on June 20, is actually more of a step backward. The majority of Justices ruled 6 to 3 that the mentally retarded should be spared the ultimate penalty. But they stated explicitly that this ruling was founded on a supposed "national consensus." And they appeared to endorse the spurious measurements of IQ as a benchmark for life-or-death decision-making.
So that is actually two steps backward. The argument about death row has been stalled, practically speaking, for several decades because of the widespread belief that death is too popular a policy to be challenged. This is wrong, as it happens, both morally and politically. It is only in lynch law (the direct ancestor and progenitor of the current system) that public opinion determines a sentence. Governors Mario Cuomo and Jerry Brown were easily re-elected, in spite of their opposition to human sacrifice, in two of the nation’s most influential states. When they lost office, it was more because they had run out of steam than because they were seen as "bleeding hearts." Indeed, many reactionary voters respected both men for taking positions that were obviously not conditioned by opinion polls. Thus this is the worst possible moment to be making an ostensibly abolitionist case that in fact rests on the shift of local and national moods.
Second: When arguing not long ago against the fans of Murray and Herrnstein’s pseudoscientific The Bell Curve, one was hard put to choose when deciding which fallacy to ridicule first. Was it their definition of "race"–itself a concept utterly negated by the tracing of the human genome–or was it their definition of "intelligence"? Oliver Cruz, executed in Texas in August 2000 for rape and murder, was variously deemed to have an IQ of 64 or 76, according to who had been testing him. (The arbitrary figure of 75, for example, is the cutoff point for determining adult responsibility in Arizona.) I would not allow the educational destination of a child to be decided by nonsense of this sort, let alone the weightier decision about whether to gas, hang, shoot, incinerate by electricity or apply a lethal injection. The "liberal" majority on the Court has now dignified this sort of degraded argument and thrown it into an arena where the unscrupulous lawyer will appear for the shifty, remorse-free, lowbrow killer, and the charlatan tester will appear as an expert for the state. Or the other way around.
One of the most potent arguments against the death penalty is concerned very precisely with its populism. The regular election of judges in states with a long tradition of capital punishment, and the consequent likelihood that judges will endorse or even apply the penalty with an eye to the polls, has been shown to be an element in the very judicial deliberations that should obviously be the most immune from vulgar pressure. (See especially an article in the 1995 Boston University Law Review by Stephen Bright and Patrick Keenan. Their title, "Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases," is eloquent enough in itself.) Donald Cabana, the former warden of the Parchman Farm penitentiary in Mississippi, put it to me more graphically–after his resignation from an impossible job–by describing it as "death by ZIP Code."
Now we have the Supreme Court giving away very much more with one hand than it has retrieved with the other. Justice Scalia seemed to me much more intelligent, as well as much more principled, when he wrote in dissent that "there is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court." Again, though, one notes the compulsive use of the word "popular." (Justice Scalia was joined by Justice Thomas, who as usual said nothing worth quoting about his evenhanded support for executing the dumb or the smart without discrimination, and who has narrowly passed a racial test while to all outward appearances failing the intelligence one.)
It is as if–since I think that "abolitionism" is the only relevant and comparable term–the Supreme Court in the Dred Scott case had upheld the theory and practice of slavery while trying to limit the use of the lash and the shackle. The consequence is that reformers are made to look stupid and cowardly, while the original evil appears more imposing and more impregnable. There can be no "equal opportunity" death penalty. May I take this chance to recommend a new book, titled Machinery of Death: The Reality of America’s Death Penalty Regime, edited by David and Mark Dow (Routledge; www.routledge-ny.com). It is the most comprehensive collection of abolitionist essays and findings yet assembled. (Interest declared: I wrote the introduction. Further interest disowned: I did so pro bono.)