Life — and death sentences
Why has Europe ended the death penalty, but we’ve still got it? The conventional answer trades on cultural divides: America is an immature cowboy nation, racist and trigger happy, while Europe is more measured, mature, and its societies, chastened by two world wars, are understandably keen to avoid further violence. They’re enlightened; we’re philistine. Germany, in fact, got rid of capital punishment in 1949 and Britain in 1969. Before I read today’s books, I’d vaguely guessed that the Germans acted in revulsion at their Nazi past, and the British embraced the moral revolution of the Sixties. I was flat wrong; in both cases, the people overwhelmingly supported the death penalty. But their leaders coolly, blatantly overruled them.
“Ending the Death Penalty: The European Experience in Global Perspective” (Palgrave MacMillan, 2010) helped me, like no other book, to understand the worldwide evolution of the ultimate punishment. When Andrew Hammel, a professor of American law at the University of Düsseldorf, asked European jurists and pols why they’ve succeeded where we’ve failed, he constantly heard this refrain: Americans are naïve to think public opinion must change before the law changes. That’s because the “desire to see murderers executed is a basic drive of human nature, one which only the most educated are able to overcome.”
So that’s their strategy: an elite fait accompli. There are long roots here, for the earliest calls for diminishing the death penalty came from European philosophers invited by European monarchs to put their ideas into practice. Voltaire was pivotal and so was Italian jurist Cesare Beccaria, whose 1764 landmark treatise, “On Crimes and Punishments” (Beccaria, 2013), remains powerful reading today and had a marked influence on Thomas Jefferson and John Adams. Beccaria found it immoral and illogical to treat brutality with brutality: “Murder, which [judges] would represent to us as a horrible crime, we see practised by them without repugnance or remorse.’’
In our era, when those on death row in the United States are in for heinous crimes only, we forget that the state once killed for far less. In 19th century Britain, you could die for some 200 transgressions, including vagrancy and “theft from the premises of a calico printers.” The march toward abolition was a slow one, steadily scratching offenses off — but it was basically a top-down process. Such condescension is a nonstarter in our more populist, pluralist society where 63 percent of Americans favor the death penalty. Eastern European countries had similar stats but, in order to join the European Union, they had to end the practice. The responsive structure of American politics guarantees, for now, it’s here to stay.
Then again, we once did stop the death penalty. It just didn’t stay stopped. “A Wild Justice: The Death and Resurrection of Capital Punishment in America” (Norton, 2013) gracefully traces the four-year period starting in 1972, when the Supreme Court ruled against Georgia’s death penalty in Furman v. Georgia (a verdict that was expected to spread to other states), only to see capital punishment reinstated in 1976 by Gregg v. Georgia. The stats since then: 1,392 executions, and 32 states with the death penalty.
Author Evan J. Mandery opens his story in 1963, with Alan Dershowitz clerking for Arthur Goldberg, as the Supreme Court justice begins his tactic of, essentially, pitting parts of the Constitution (capital punishment is endorsed in the Fifth and Fourteenth amendments) against another (the Eighth, which prohibits “cruel and unusual punishment”). It was a radical — arguably elitist — move: At the time, not even the ACLU opposed the death penalty. But the NAACP Legal Defense Fund steps in to combat capital punishment as a civil-rights issue, not just for the racial imbalance in its imposition, but because “[d]eath is factually different.” As Legal Defense Fund lawyer Anthony Amsterdam argued before the court: “Death is final. Death is irremediable. Death is unnullable. It goes beyond this world.”
Here is where even death-penalty advocates recoil — at the nightmare of killing an innocent person. This theme has gathered much bookish steam, most recently with “Just Mercy: A Story of Justice and Redemption” (Spiegel & Grau, 2014) by Alabama death-row lawyer Bryan Stevenson, whom Desmond Tutu compares to Nelson Mandela and John Grisham compares to Atticus Finch. Stevenson is a sympathetic and impassioned narrator. His book is part memoir, part case history, and, echoing Beccaria, part philosophical treatise. Indeed, Stevenson offers much on how our legal system is rife with racial and class inequities. As a mentor tells him, “capital punishment means ‘them without the capital get the punishment.’ ”
The book’s main murder case takes place in Monroeville, Ala., Harper Lee’s hometown. The accused, an African-American business owner tainted by an affair with a white woman, is thwarted at every turn: Exonerating witnesses are threatened; the jury is all white; the judge turns a life sentence into a death sentence. Stevenson finally frees him. But he witnesses the execution of another client — the scene is visceral, shame-filled, and very hard to take — who asks that the hymn “The Old Rugged Cross” plays as he goes to the chair. Stevenson is soaked in sorrow and outrage: “[W]e would never think it was humane to pay someone to rape people convicted of rape or assault and abuse someone guilty of assault or abuse. Yet we were comfortable killing people who kill, in part because we think we can do it in a manner that doesn’t implicate our own humanity.”
Two more wrongful conviction books vary deeply in their approach. This first is personal in tone and, given its high profile, virtually anthemic: “I Am Troy Davis” (Haymarket, 2013) follows yet another the Georgia case (Davis was accused of killing a Savannah police officer) that drew nearly one million petition signatures in 2011 calling for commuting his sentence, plus appeals for clemency from Pope Benedict XVI, President Jimmy Carter, and 51 members of Congress. The book is co-written by Jen Marlow and Marina Davis-Correia, Troy’s sister, with Davis himself, and it’s highly moving.
But honestly, I was more struck by the dispassionate, cumulative power of “The Wrong Carlos: Anatomy of a Wrongful Execution” (Columbia University, 2014) by James S. Liebman and the Columbia DeLuna Project. This case is examined to such an earth’s-core depth — the book is full of site maps and footnotes and its website features much more — that readers will come away absolutely convinced that the conviction of Carlos DeLuna was a profound injustice. Troy Davis may have been just as innocent, but “The Wrong Carlos” benefits, somehow, by the fact that DeLuna lacked Davis’s obfuscating charisma. It begins with a Corpus Christi convenience-store theft gone bad, a slain clerk, and a suspect misidentified by one witness. In 1989, DeLuna is put to death, when Carlos Hernandez should’ve been convicted instead.
If you write about the death penalty, you need to come clean: I’m against it. And though this next book, which is pro-death penalty, did not change my mind, it definitely unnerved me. “The Death of Punishment: Searching for Justice Among the Worst of the Worst” (Palgrave Macmillan, 2013) is a polemic-reportorial blend by Robert Blecker, a New York Law School criminal-law professor who calls himself a “retributivist” in that he feels the punishment should match the crime: “Which do you prefer for a serial killer who rapes and murders children: death, or a life watching television, playing sports, going to therapy and arts and crafts with free medical care inside prison?” He adds that true retributivists support the Innocence Project — the organization that, since 1989, has helped exonerate scores of people through DNA testing — because the right punishment should go to the right people. That surprised me, I must say. So did this fact: One reason German leaders eliminated the death penalty over six decades ago was because too many Nazis were being executed for war crimes. Reality can be hard on philosophy.
Correction: Because of a reporting error, an earlier version incorrectly stated where Robert Blecker is a law professor. He teaches at New York Law School.