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ZACHARY SHEMTOB AND DAVID LAT

Zachary Shemtob, formerly editor in chief of the Georgetown Law Review, is a clerk in the US District Court for the Southern District of New York. David Lat is a former federal prosecutor. Their essay originally appeared in the New York Times in 2011.

Executions Should Be Televised

Earlier this month, Georgia conducted its third execution this year. This would have passed relatively unnoticed if not for a controversy surrounding its videotaping. Lawyers for the condemned inmate, Andrew Grant DeYoung, had persuaded a judge to allow the recording of his last moments as part of an effort to obtain evidence on whether lethal injection caused unnecessary suffering.

Though he argued for videotaping, one of Mr. DeYoung’s defense lawyers, Brian Kammer, spoke out against releasing the footage to the public. “It’s a horrible thing that Andrew DeYoung had to go through,” Mr. Kammer said, “and it’s not for the public to see that.”

We respectfully disagree. Executions in the United States ought to be made public.

Right now, executions are generally open only to the press and a few select witnesses. For the rest of us, the vague contours are provided in the morning paper. Yet a functioning democracy demands maximum accountability and transparency. As long as executions remain behind closed doors, those are impossible. The people should have the right to see what is being done in their name and with their tax dollars.

This is particularly relevant given the current debate on whether specific methods of lethal injection constitute cruel and unusual punishment and therefore violate the Constitution.

There is a dramatic difference between reading or hearing of such an event and observing it through image and sound. (This is obvious to those who saw the footage of Saddam Hussein’s hanging in 2006 or the death of Neda Agha-Soltan during the protests in Iran in 2009.) We are not calling for opening executions completely to the public — conducting them before a live crowd — but rather for broadcasting them live or recording them for future release, on the web or TV.

When another Georgia inmate, Roy Blankenship, was executed in June, the prisoner jerked his head, grimaced, gasped, and lurched, according to a medical expert’s affidavit. The Atlanta Journal-Constitution reported that Mr. DeYoung, executed in the same manner, “showed no violent signs in death.” Voters should not have to rely on media accounts to understand what takes place when a man is put to death.

Cameras record legislative sessions and presidential debates, and courtrooms are allowing greater television access. When he was an Illinois state senator, President Obama successfully pressed for the videotaping of homicide interrogations and confessions. The most serious penalty of all surely demands equal if not greater scrutiny.

Opponents of our proposal offer many objections. State lawyers argued that making Mr. DeYoung’s execution public raised safety concerns. While rioting and pickpocketing occasionally marred executions in the public square in the eighteenth and nineteenth centuries, modern security and technology obviate this concern. Little would change in the death chamber; the faces of witnesses and executioners could be edited out, for privacy reasons, before a video was released.

Of greater concern is the possibility that broadcasting executions could have a numbing effect. Douglas A. Berman, a law professor, fears that people might come to equate human executions with putting pets to sleep. Yet this seems overstated. While public indifference might result over time, the initial broadcasts would undoubtedly get attention and stir debate.

Still others say that broadcasting an execution would offer an unbalanced picture — making the condemned seem helpless and sympathetic, while keeping the victims of the crime out of the picture. But this is beside the point: the defendant is being executed precisely because a jury found that his crimes were so heinous that he deserved to die.

Ultimately the main opposition to our idea seems to flow from an unthinking disgust — a sense that public executions are archaic, noxious, even barbarous. Albert Camus related in his essay “Reflections on the Guillotine” that viewing executions turned him against capital punishment. The legal scholar John D. Bessler suggests that public executions might have the same effect on the public today; Sister Helen Prejean, the death penalty abolitionist, has urged just such a strategy.

That is not our view. We leave open the possibility that making executions public could strengthen support for them; undecided viewers might find them less disturbing than anticipated.

Like many of our fellow citizens, we are deeply conflicted about the death penalty and how it has been administered. Our focus is on accountability and openness. As Justice John Paul Stevens wrote in Baze v. Rees, a 2008 case involving a challenge to lethal injection, capital punishment is too often “the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits.”

A democracy demands a citizenry as informed as possible about the costs and benefits of society’s ultimate punishment.

The Caging of America

How did we get here? How is it that our civilization, which rejects hanging and flogging and disemboweling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction? There’s a fairly large recent scholarly literature on the history and sociology of crime and punishment, and it tends to trace the American zeal for punishment back to the nineteenth century, apportioning blame in two directions. There’s an essentially Northern explanation, focusing on the inheritance of the notorious Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and a Southern explanation, which sees the prison system as essentially a slave plantation continued by other means. Robert Perkinson, the author of the Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,” traces two ancestral lines, “from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline.” In other words, there’s the scientific taste for reducing men to numbers and the slave owners’ urge to reduce blacks to brutes.

William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, “The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; “zero tolerance” policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system — much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair!1 Instead of announcing general principles — no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done — it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments — flogging and branding — that were not at that time unusual.

The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality. The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That’s why America is famous both for its process-driven judicial system (“The bastard got off on a technicality,” the cop-show detective fumes) and for the harshness and inhumanity of its prisons. Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated. The inhumanity of American prisons was as much a theme for Dickens, visiting America in 1842, as the cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary, in Philadelphia — a “model” prison, at the time the most expensive public building ever constructed in the country, where every prisoner was kept in silent, separate confinement — still resonates:

I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers…. I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.

Not roused up to stay — that was the point. Once the procedure ends, the penalty begins, and, as long as the cruelty is routine, our civil responsibility toward the punished is over. We lock men up and forget about their existence. For Dickens, even the corrupt but communal debtors’ prisons of old London were better than this. “Don’t take it personally!” — that remains the slogan above the gate to the American prison Inferno. Nor is this merely a historian’s vision. Conrad Black, at the high end, has a scary and persuasive picture of how his counsel, the judge, and the prosecutors all merrily congratulated each other on their combined professional excellence just before sending him off to the hoosegow for several years. If a millionaire feels that way, imagine how the ordinary culprit must feel.

In place of abstraction, Stuntz argues for the saving grace of humane discretion. Basically, he thinks, we should go into court with an understanding of what a crime is and what justice is like, and then let common sense and compassion and specific circumstance take over. There’s a lovely scene in “The Castle,” the Australian movie about a family fighting eminent-domain eviction, where its hapless lawyer, asked in court to point to the specific part of the Australian constitution that the eviction violates, says desperately, “It’s … just the vibe of the thing.” For Stuntz, justice ought to be just the vibe of the thing — not one procedural error caught or one fact worked around. The criminal law should once again be more like the common law, with judges and juries not merely finding fact but making law on the basis of universal principles of fairness, circumstance, and seriousness, and crafting penalties to the exigencies of the crime.

The other argument — the Southern argument — is that this story puts too bright a face on the truth. The reality of American prisons, this argument runs, has nothing to do with the knots of procedural justice or the perversions of Enlightenment-era ideals. Prisons today operate less in the rehabilitative mode of the Northern reformers “than in a retributive mode that has long been practiced and promoted in the South,” Perkinson, an American Studies professor, writes. “American prisons trace their lineage not only back to Pennsylvania penitentiaries but to Texas slave plantations.” White supremacy is the real principle, this thesis holds, and racial domination the real end. In response to the apparent triumphs of the sixties, mass imprisonment became a way of reimposing Jim Crow. Blacks are now incarcerated seven times as often as whites. “The system of mass incarceration works to trap African Americans in a virtual (and literal) cage,” the legal scholar Michelle Alexander writes. Young black men pass quickly from a period of police harassment into a period of “formal control” (i.e., actual imprisonment) and then are doomed for life to a system of “invisible control.” Prevented from voting, legally discriminated against for the rest of their lives, most will cycle back through the prison system. The system, in this view, is not really broken; it is doing what it was designed to do. Alexander’s grim conclusion: “If mass incarceration is considered as a system of social control — specifically, racial control — then the system is a fantastic success.”

Northern impersonality and Southern revenge converge on a common American theme: a growing number of American prisons are now contracted out as for-profit businesses to for-profit companies. The companies are paid by the state, and their profit depends on spending as little as possible on the prisoners and the prisons. It’s hard to imagine any greater disconnect between public good and private profit: the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible. No more chilling document exists in recent American life than the 2005 annual report of the biggest of these firms, the Corrections Corporation of America. Here the company (which spends millions lobbying legislators) is obliged to caution its investors about the risk that somehow, somewhere, someone might turn off the spigot of convicted men:

Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities…. The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.

Brecht could hardly have imagined such a document: a capitalist enterprise that feeds on the misery of man trying as hard as it can to be sure that nothing is done to decrease that misery.

Yet a spectre haunts all these accounts, North and South, whether process gone mad or penal colony writ large. It is that the epidemic of imprisonment seems to track the dramatic decline in crime over the same period. The more bad guys there are in prison, it appears, the less crime there has been in the streets. The real background to the prison boom, which shows up only sporadically in the prison literature, is the crime wave that preceded and overlapped it.

For those too young to recall the big-city crime wave of the sixties and seventies, it may seem like mere bogeyman history. For those whose entire childhood and adolescence were set against it, it is the crucial trauma in recent American life and explains much else that happened in the same period. It was the condition of the Upper West Side of Manhattan under liberal rule, far more than what had happened to Eastern Europe under socialism, that made neo-con polemics look persuasive. There really was, as Stuntz himself says, a liberal consensus on crime (“Wherever the line is between a merciful justice system and one that abandons all serious effort at crime control, the nation had crossed it”), and it really did have bad effects.

Yet if, in 1980, someone had predicted that by 2012 New York City would have a crime rate so low that violent crime would have largely disappeared as a subject of conversation, he would have seemed not so much hopeful as crazy. Thirty years ago, crime was supposed to be a permanent feature of the city, produced by an alienated underclass of super-predators; now it isn’t. Something good happened to change it, and you might have supposed that the change would be an opportunity for celebration and optimism. Instead, we mostly content ourselves with grudging and sardonic references to the silly side of gentrification, along with a few all-purpose explanations, like broken-window policing. This is a general human truth: things that work interest us less than things that don’t.

So what is the relation between mass incarceration and the decrease in crime? Certainly, in the 1970s and 1980s, many experts became persuaded that there was no way to make bad people better; all you could do was warehouse them, for longer or shorter periods. The best research seemed to show, depressingly, that nothing works — that rehabilitation was a ruse. Then, in 1983, inmates at the maximum-security federal prison in Marion, Illinois, murdered two guards. Inmates had been (very occasionally) killing guards for a long time, but the timing of the murders, and the fact that they took place in a climate already prepared to believe that even ordinary humanity was wasted on the criminal classes, meant that the entire prison was put on permanent lockdown. A century and a half after absolute solitary first appeared in American prisons, it was reintroduced. Those terrible numbers began to grow.

And then, a decade later, crime started falling: across the country by a standard measure of about forty per cent; in New York City by as much as eighty per cent. By 2010, the crime rate in New York had seen its greatest decline since the Second World War; in 2002, there were fewer murders in Manhattan than there had been in any year since 1900. In social science, a cause sought is usually a muddle found; in life as we experience it, a crisis resolved is causality established. If a pill cures a headache, we do not ask too often if the headache might have gone away by itself.

All this ought to make the publication of Franklin E. Zimring’s new book, “The City That Became Safe,” a very big event. Zimring, a criminologist at Berkeley Law, has spent years crunching the numbers of what happened in New York in the context of what happened in the rest of America. One thing he teaches us is how little we know. The forty per cent drop across the continent — indeed, there was a decline throughout the Western world — took place for reasons that are as mysterious in suburban Ottawa as they are in the South Bronx. Zimring shows that the usual explanations — including demographic shifts — simply can’t account for what must be accounted for. This makes the international decline look slightly eerie: blackbirds drop from the sky, plagues slacken and end, and there seems no absolute reason that societies leap from one state to another over time. Trends and fashions and fads and pure contingencies happen in other parts of our social existence; it may be that there are fashions and cycles in criminal behavior, too, for reasons that are just as arbitrary.

But the additional forty per cent drop in crime that seems peculiar to New York finally succumbs to Zimring’s analysis. The change didn’t come from resolving the deep pathologies that the right fixated on — from jailing super-predators, driving down the number of unwed mothers, altering welfare culture. Nor were there cures for the underlying causes pointed to by the left: injustice, discrimination, poverty. Nor were there any “Presto!” effects arising from secret patterns of increased abortions or the like. The city didn’t get much richer; it didn’t get much poorer. There was no significant change in the ethnic makeup or the average wealth or educational levels of New Yorkers as violent crime more or less vanished. “Broken windows” or “turnstile jumping” policing, that is, cracking down on small visible offenses in order to create an atmosphere that refused to license crime, seems to have had a negligible effect; there was, Zimring writes, a great difference between the slogans and the substance of the time. (Arrests for “visible” nonviolent crime — e.g., street prostitution and public gambling — mostly went down through the period.)

Instead, small acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened — “hot-spot policing.” The cops also began an aggressive, controversial program of “stop and frisk” — “designed to catch the sharks, not the dolphins,” as Jack Maple, one of its originators, described it — that involved what’s called pejoratively “profiling.” This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already. Minority communities, Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced. “The poor pay more and get more” is Zimring’s way of putting it. He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.

Zimring insists, plausibly, that he is offering a radical and optimistic rewriting of theories of what crime is and where criminals are, not least because it disconnects crime and minorities. “In 1961, twenty six percent of New York City’s population was minority African American or Hispanic. Now, half of New York’s population is — and what that does in an enormously hopeful way is to destroy the rude assumptions of supply side criminology,” he says. By “supply side criminology,” he means the conservative theory of crime that claimed that social circumstances produced a certain net amount of crime waiting to be expressed; if you stopped it here, it broke out there. The only way to stop crime was to lock up all the potential criminals. In truth, criminal activity seems like most other human choices — a question of contingent occasions and opportunity. Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.

And, in a virtuous cycle, the decreased prevalence of crime fuels a decrease in the prevalence of crime. When your friends are no longer doing street robberies, you’re less likely to do them. Zimring said, in a recent interview, “Remember, nobody ever made a living mugging. There’s no minimum wage in violent crime.” In a sense, he argues, it’s recreational, part of a life style: “Crime is a routine behavior; it’s a thing people do when they get used to doing it.” And therein lies its essential fragility. Crime ends as a result of “cyclical forces operating on situational and contingent things rather than from finding deeply motivated essential linkages.” Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either. Curbing crime does not depend on reversing social pathologies or alleviating social grievances; it depends on erecting small, annoying barriers to entry.

One fact stands out. While the rest of the country, over the same twenty-year period, saw the growth in incarceration that led to our current astonishing numbers, New York, despite the Rockefeller drug laws, saw a marked decrease in its number of inmates. “New York City, in the midst of a dramatic reduction in crime, is locking up a much smaller number of people, and particularly of young people, than it was at the height of the crime wave,” Zimring observes. Whatever happened to make street crime fall, it had nothing to do with putting more men in prison. The logic is self-evident if we just transfer it to the realm of white-collar crime: we easily accept that there is no net sum of white-collar crime waiting to happen, no inscrutable generation of super-predators produced by Dewar’s-guzzling dads and scaly M.B.A. profs; if you stop an embezzlement scheme here on Third Avenue, another doesn’t naturally start in the next office building. White-collar crime happens through an intersection of pathology and opportunity; getting the S.E.C. busy ending the opportunity is a good way to limit the range of the pathology.

Social trends deeper and less visible to us may appear as future historians analyze what went on. Something other than policing may explain things — just as the coming of cheap credit cards and state lotteries probably did as much to weaken the Mafia’s Five Families in New York, who had depended on loan sharking and numbers running, as the F.B.I. could. It is at least possible, for instance, that the coming of the mobile phone helped drive drug dealing indoors, in ways that helped drive down crime. It may be that the real value of hot spot and stop-and-frisk was that it provided a single game plan that the police believed in; as military history reveals, a bad plan is often better than no plan, especially if the people on the other side think it’s a good plan. But one thing is sure: social epidemics, of crime or of punishment, can be cured more quickly than we might hope with simpler and more superficial mechanisms than we imagine. Throwing a Band-Aid over a bad wound is actually a decent strategy, if the Band-Aid helps the wound to heal itself.

Which leads, further, to one piece of radical common sense: since prison plays at best a small role in stopping even violent crime, very few people, rich or poor, should be in prison for a nonviolent crime. Neither the streets nor the society is made safer by having marijuana users or peddlers locked up, let alone with the horrific sentences now dispensed so easily. For that matter, no social good is served by having the embezzler or the Ponzi schemer locked in a cage for the rest of his life, rather than having him bankrupt and doing community service in the South Bronx for the next decade or two. Would we actually have more fraud and looting of shareholder value if the perpetrators knew that they would lose their bank accounts and their reputation, and have to do community service seven days a week for five years? It seems likely that anyone for whom those sanctions aren’t sufficient is someone for whom no sanctions are ever going to be sufficient. Zimring’s research shows clearly that if crime drops on the street, criminals coming out of prison stop committing crimes. What matters is the incidence of crime in the world, and the continuity of a culture of crime, not some “lesson learned” in prison.

At the same time, the ugly side of stop-and-frisk can be alleviated. To catch sharks and not dolphins, Zimring’s work suggests, we need to adjust the size of the holes in the nets — to make crimes that are the occasion for stop-and-frisks real crimes, not crimes like marijuana possession. When the New York City police stopped and frisked kids, the main goal was not to jail them for having pot but to get their fingerprints, so that they could be identified if they committed a more serious crime. But all over America the opposite happens: marijuana possession becomes the serious crime. The cost is so enormous, though, in lives ruined and money spent, that the obvious thing to do is not to enforce the law less but to change it now. Dr. Johnson said once that manners make law, and that when manners alter, the law must, too. It’s obvious that marijuana is now an almost universally accepted drug in America: it is not only used casually (which has been true for decades) but also talked about casually on television and in the movies (which has not). One need only watch any stoner movie to see that the perceived risks of smoking dope are not that you’ll get arrested but that you’ll get in trouble with a rival frat or look like an idiot to women. The decriminalization of marijuana would help end the epidemic of imprisonment.

The rate of incarceration in most other rich, free countries, whatever the differences in their histories, is remarkably steady. In countries with Napoleonic justice or common law or some mixture of the two, in countries with adversarial systems and in those with magisterial ones, whether the country once had brutal plantation-style penal colonies, as France did, or was once itself a brutal plantation-style penal colony, like Australia, the natural rate of incarceration seems to hover right around a hundred men per hundred thousand people. (That doesn’t mean it doesn’t get lower in rich, homogeneous countries — just that it never gets much higher in countries otherwise like our own.) It seems that one man in every thousand once in a while does a truly bad thing. All other things being equal, the point of a justice system should be to identify that thousandth guy, find a way to keep him from harming other people, and give everyone else a break.

Epidemics seldom end with miracle cures. Most of the time in the history of medicine, the best way to end disease was to build a better sewer and get people to wash their hands. “Merely chipping away at the problem around the edges” is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart. To read the literature on crime before it dropped is to see the same kind of dystopian despair we find in the new literature of punishment: we’d have to end poverty, or eradicate the ghettos, or declare war on the broken family, or the like, in order to end the crime wave. The truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand smaller sanities. Ending sentencing for drug misdemeanors, decriminalizing marijuana, leaving judges free to use common sense (and, where possible, getting judges who are judges rather than politicians) — many small acts are possible that will help end the epidemic of imprisonment as they helped end the plague of crime.

“Oh, I have taken too little care of this!” King Lear cries out on the heath in his moment of vision. “Take physic, pomp; expose thyself to feel what wretches feel.” “This” changes; in Shakespeare’s time, it was flat-out peasant poverty that starved some and drove others as mad as poor Tom. In Dickens’s and Hugo’s time, it was the industrial revolution that drove kids to mines. But every society has a poor storm that wretches suffer in, and the attitude is always the same: either that the wretches, already dehumanized by their suffering, deserve no pity or that the oppressed, overwhelmed by injustice, will have to wait for a better world. At every moment, the injustice seems inseparable from the community’s life, and in every case the arguments for keeping the system in place were that you would have to revolutionize the entire social order to change it — which then became the argument for revolutionizing the entire social order. In every case, humanity and common sense made the insoluble problem just get up and go away. Prisons are our this. We need take more care.

Death and Justice

Following a stint in the U.S. House of Representatives, controversial and outspoken Edward I. Koch(1924-) served as mayor of New York City from 1977 to 1989. He was elected after campaigning on ananti-crime and anti-spending platform. Koch, who now presides over a popular TV courtroom show, haswritten two autobiographical books, Mayor (1984) and Politics (1985). He also coauthored the book HisEminence andHizzoner (1989) with the equally controversial John Cardinal O’Connor. The followingessay was published in the New Republic in 1985.Last December [1984] a man named Robert Lee Willie, who hadbeen convicted of raping and murdering an 18-year-old woman, wasexecuted in the Louisiana state prison. In a statement issued severalminutes before his death, Mr. Willie said: “Killing people is wrong...Itmakes no difference whether it’s citizens, countries, or governments.Killing is wrong.” Two weeks later in South Carolina, an admittedkiller named Joseph Carl Shaw was put to death for murdering twoteenagers. In an appeal to the governor for clemency, Mr. Shawwrote: “Killing is wrong when I did it. Killing is wrong when you do it. I hope you have the courage and moralstrength to stop the killing.”It is a curiosity of modern life that we find ourselves being lectured on morality by cold-blooded killers.Mr. Willie previously had been convicted of aggravated rape, aggravated kidnapping, and the murders of aLouisiana deputy and a man from Missouri. Mr. Shaw committed another murder a week before the two forwhich he was executed, and admitted mutilating the body of the 14-year-old girl he killed. I can’t helpwondering what prompted these murderers to speak out against killing as they entered the death-house door.Did their newfound reverence for life stem from the realization that they were about to lose their own?Life is indeed precious, and I believe the death penalty helps to affirm this fact. Had the death penaltybeen a real possibility in the minds of these murderers, they might well have stayed their hand. They might haveshown moral awareness before their victims died, and not after. Consider the tragic death of Rosa Velez, whohappened to be home when a man named Luis Vera burglarized her apartment in Brooklyn. “Yeah, I showher,” Vera admitted. “She knew me, and I knew I wouldn’t go to the chair.”During my 22 years in public service, I have heard the pros and cons of capital punishment expressedwith special intensity. As a district leader, councilman, congressman, and mayor, I have represented constituenciesgenerally thought of as liberal. Because I support the death penalty for heinous crimes of murder, I havesometimes been the subject of emotional and outraged attacks by voters who find my position reprehensible orworse. I have listened to their ideas. I have weighed their objections carefully. I still support the death penalty.The reasons I maintained my position can be best understood by examining the arguments most frequentlyheard in opposition.1. The death penalty is “barbaric.” Sometimes opponents of capital punishment horrify us withtales of lingering death on the gallows, of faulty electric chairs, or of agony in the gas chamber. Partly inresponse to such protests, several states such as North Carolina and Texas switched to execution by lethalinjection. The condemned person is put to death painlessly, without ropes, voltage, bullets, or gas. Did thisanswer the objections of death penalty opponents? Of course not. On June 22, 1984, the New York Timespublished an editorial that sarcastically attacked the new “hygienic” method of death by injection, and statedthat “execution can never be made humane through science.” So it’s not the method that really troublesopponents. It’s the death itself they consider barbaric.Admittedly, capital punishment is not a pleasant topic. However, one does not have to like the deathpenalty in order to support it any more than one must like radical surgery, radiation, or chemotherapy in orderto find necessary these attempts at curing cancer. Ultimately we may learn how to cure cancer with a simplepill. Unfortunately, that day has not yet arrived. Today we are faced with the choice of letting the cancerDeath and Justiceby Edward I. Koch12 4356

spread or trying to cure it with the methods available, methods that one day will almost certainly be consideredbarbaric. But to give up and do nothing would be far more barbaric and would certainly delay the discoveryof an eventual cure. The analogy between cancer and murder is imperfect, because murder is not the “disease”we are trying to cure. The disease is injustice. We may not like the death penalty, but it must be available topunish crimes of cold-blooded murder, cases in which any other form of punishment would be inadequate and,therefore, unjust. If we create a society in which injustice is not tolerated, incidents of murder – the mostflagrant form of injustice – will diminish.2. No other major democracy uses the death penalty. No other major democracy – in fact, fewother countries of any description – are plagued by a murder rate such as that in the United States. Fewer andfewer Americans can remember the days when unlocked doors were the norm and murder was a rare andterrible offense. In American the murder rate climbed 122 percent between 1963 and 1980. During that sameperiod, the murder rate in New York City increased by almost 400 percent, and the statistics are even worsein many other cities. A study at M.I.T. showed that based on 1970 homicide rates a person who lived in a largeAmerican city ran a greater risk of being murdered than an American soldier in World War II ran of being killedin combat. It is not surprising that the laws of each country differ according to differing conditions and traditions.If other countries had our murder problem, the cry for capital punishment would be just as loud as it is here.And I daresay that any other major democracy where 75 percent of the people supported the death penaltywould soon enact it into law.3. An innocent person might be executed by mistake. Consider the work of Adam Bedau, oneof the most implacable foes of capital punishment in this country. According to Mr. Bedau, it is “falsesentimentality to argue that the death penalty should be abolished because of the abstract possibility that aninnocent person might be executed.” He cites a study of the 7,000 executions in this country from 1893 to1971, and concludes that the record fails to show that such cases occur. The main point, however, is this. Ifgovernment functioned only when the possibility of error didn’t exist, government wouldn’t function at all.Human life deserves special protection, and one of the best ways to guarantee that protection is to assure thatconvicted murderers do not kill again. Only the death penalty can accomplish this end. In a recent case inNew Jersey, a man named Richard Biegenwald was freed from prison after serving 18 years for murder; sincehis release he has been convicted of committing four murders. A prisoner named Lemuel Smith, while servingfour life sentences for murder (plus two life sentences for kidnapping and robbery) in New York’s GreenHaven Prison, lured a woman corrections officer into the chaplain’s office and strangled her. He then mutilatedand dismembered her body. An additional life sentence for Smith is meaningless. Because New York has nodeath penalty statue, Smith has effectively been given a license to kill.But the problem of multiple murder is not confined to the nation’s penitentiaries. In 1981, 91 policeofficers were killed in the line of duty in this country. Seven percent of those arrested in the cases that havebeen solved had a previous arrest for murder. In New York City in 1976 and 1977, 85 persons arrested forhomicide had a previous arrest for murder. Six of these individuals had two previous arrests for murder, andone had four previous murder arrests. During those two years the New York police were arresting for murderpersons with a previous arrest for murder on the average of one every 8.5 days. This is not surprising when welearn that in 1975, for example, the median time served in Massachusetts for homicide was less than two anda half years. In 1976 a study sponsored by the Twentieth Century Fund found that the average time served inthe United States for first degree murder is ten years. The median time served may be considerably lower.4. Capital punishment cheapens the value of human life. On the contrary, it can be easilydemonstrated that the death penalty strengthens the value of human life. If the penalty for rape were lowered,clearly it would signal a lessened regard for the victims’ suffering, humiliation, and personal integrity. It wouldcheapen their horrific experience, and expose them to an increased danger of recurrence. When we lower thepenalty for murder, it signals a lessened regard for the value of the victim’s life. Some critics of capital punishment,78910

such as columnist Jimmy Breslin, have suggested that a life sentence is actually a harsher penalty for murderthan death. This is sophistic nonsense. A few killers may decide not to appeal a death sentence, but theoverwhelming majority make every effort to stay alive. It is by exacting the highest penalty for the taking ofhuman life that we affirm the highest value of human life.5. The death penalty is applied in a discriminatory manner. This factor no longer seems to bethe problem it once was. The appeals process for a condemned prisoner is lengthy and painstaking. Everyeffort is made to see that the verdict and sentence were fairly arrived at. However, assertions of discriminationare not an argument for ending the death penalty but for extending it. It is not justice to exclude everyone fromthe penalty of the law if a few are found to be so favored. Justice requires that the law be applied equally to all.6. Thou shalt not kill. The Bible is our greatest source of moral inspiration. Opponents of thedeath penalty frequently cite the sixth of the Ten Commandments in an attempt to prove that capital punishmentis divinely proscribed. In the original Hebrew, however, the Sixth Commandment reads, “Thou Shalt NotCommit Murder,” and the Torah specifies capital punishment for a variety of offenses. The biblical viewpointhas been upheld by philosophers throughout history. The greatest thinkers of the nineteenth century – Kant,Locke, Hobbes, Rousseau, Montesquieu, and Mill – agreed that natural law properly authorizes the sovereignto take life in order to vindicate justice. Only Jeremy Bentham was ambivalent. Washington, Jefferson, andFranklin endorsed it. Abraham Lincoln authorized executions for deserters in wartime. Alexis de Tocqueville,who expressed profound respect for American institutions, believed that the death penalty was indispensableto the support of social order. The United States Constitution, widely admired as one of the seminal achievementsin the history of humanity, condemns cruel and inhuman punishment, but does not condemn capital punishment.7. The death penalty is state-sanctioned murder. This is the defense with which Messrs. Willieand Shaw hoped to soften the resolve of those who sentenced them to death. By saying in effect, “You’re nobetter than I am,” the murderer seeks to bring his accusers down to his own level. It is also a popular argumentamong opponents of capital punishment, but a transparently false one. Simply put, the state has rights that theprivate individual does not. In a democracy, those rights are given to the state by the electorate. The executionof a lawfully condemned killer is no more an act of murder than is legal imprisonment an act of kidnapping. Ifan individual forces a neighbor to pay him money under threat of punishment, it’s called extortion. If the statedoes it, it’s called taxation. Rights and responsibilities surrendered by the individual are what give the state itspower to govern. This contract is the foundation of civilization itself.Everyone wants his or her rights, and will defend them jealously. Not everyone, however, wantsresponsibilities, especially the painful responsibilities that come with law enforcement. Twenty-one years agoa woman named Kitty Genovese was assaulted and murdered on a street in New York. Dozens of neighborsheard her cries for help but did nothing to assist her. They didn’t even call the police. In such a climate thecriminal understandably grows bolder. In the presence of moral cowardice, he lectures us on our supposedfailings and tries to equate his crimes with our quest for justice.The death of anyone – even a convicted killer – diminishes us all. But we are diminished even more bya justice system that fails to function. It is an illusion to let ourselves believe that doing away with capitalpunishment removes the murderer’s deed from our conscience. The rights of society are paramount. Whenwe protect guilty lives, we give up innocent lives in exchange. When opponents of capital punishment say tothe state: “I will not let you kill in my name,” they are also saying to murderers: “You can kill in your own nameas long as I have an excuse for not getting involved.”It is hard to imagine anything worse than being murdered while neighbors do nothing. But somethingworse exists. When those same neighbors shrink back from justly punishing the murderer, the victim diestwice.

The Death Penalty

lecturer and consultant on the death penalty, attorney David Bruck (1949-) has represented numerousdeath row clients. He has published articles in the Washington Post and the New York Times and hasdiscussed capital punishment on a variety of national television programs. Writing in response to EdKoch’s argument in favor of the death penalty, Bruck prepared the following piece, which first appearedin the New Republic in 1985.Mayor Ed Koch contends that the death penalty “affirms life.” By failing toexecute murderers, he says, we “signal a lessened regard for the value ofthe victim’s life.” Koch suggests that people who oppose the death penaltyare like Kitty Genovese’s neighbors, who heard her cries for help but didnothing while an attacker stabbed her to death.This is the standard “moral” defense of death as punishment: even ifexecutions don’t deter violent crime any more effectively than imprisonment,they are still required as the only means we have of doing justice in responseto the worst of crimes.Until recently, this “moral” argument had to be considered in the abstract, since no one was being executed inthe United States. But the death penalty is back now, aat least in the southern states, where every one of themore than 30 executions carried out over the last two years has taken place. Those of us who live in thosestates are getting to see the difference between the death penalty in theory, and what happens when youactually try to use it.South Carolina resumed executing prisoners in January with the electrocution of Joseph Carl Shaw.Shaw was condemned to death for helping to murder two teenagers while he was serving as a military policemanat Fort Jackson, South Carolina. His crime, propelled by mental illness and PCP, was one of terrible brutality.It is Shaw’s last words (“Killing was wrong when I did it. It is wrong when you do it...”) that so outragedMayor Koch: he finds it “a curiosity of modern life that we are being lectured on morality by cold-bloodedkillers.” And so it is.But is was not “modern life” that brought this curiosity into being. It was capital punishment. Theelectric chair was J.C. Shaw’s platform. (The mayor mistakenly writes that Shaw’s statement came in the formof a plea to the governor for clemency: actually Shaw made it only seconds before his death, as he waited,shaved and strapped into the chair, for the switch to be thrown.) It was the chair that provided Shaw withcelebrity and an opportunity to lecture us on right and wrong. What made this weird moral reversal evenworse is that J.C. Shaw faced his own death with undeniable dignity and courage. And while Shaw died, theTV crews recorded another “curiosity” of the death penalty – the crowd gathered outside the death-house tocheer on the executioner. Whoops of elation greeted the announcement of Shaw’s death. Waiting at thepenitentiary gates for the appearance of the hearse bearing Shaw’s remains, one demonstrator started yelling,“Where’s the beef?”For those who had to see the execution of J.C. Shaw, it wasn’t easy to keep in mind that he purposeof the whole spectacle was to affirm life. It will be harder still when Florida executes a cop-killer named AlvinFord. Ford has lost his mind during his years of death-row confinement, and now spends his days trembling,rocking back and forth, and muttering unintelligible prayers. This has led to litigation over whether Ford meetsa centuries-old legal standard for mental competency. Since the Middle Ages, the Anglo-American legalsystem has generally prohibited the execution of anyone who is too mentally ill to understand what is about tobe done to him and why. If Florida wins its case, it will have earned the right to electrocute Ford in his presentcondition. It is loses, he will not be executed until the state has first nursed him back to some semblance ofmental health.*_______________________* On June 26, 1986, the Supreme Court prohibited the execution of convicted murderers who are so insane they do not understand theywill be executed. However, if Ford regains his sanity, Florida may execute him.The DeathPenaltyby David Bruck123456

We can at least be thankful that this demoralizing spectacle involves a prisoner who is actually guilty ofmurder. But this may not always been so. The ordeal of Lenell Jeter – the young black engineer who recentlyserved more than a year of a life sentence for a Texas armed robbery that he didn’t commit – should remind usthat the system is quite capable of making the very worst sort of mistake. That Jeter was eventually cleared isa fluke. If the robbery had occurred at 7 p.m. rather than 3 p.m., he’d have had no alibi, and would still be inprison today. And if someone had been killed in that robbery, Jeter probably would have been sentenced todeath. We’d have seen the usual execution-day interviews with state officials and the victim’s relatives, allcomplaining that Jeter’s appeals took too long. And Jeter’s last words from the gurney would have taken theirplace among the growing literature of death-house oration that so irritates the mayor.Koch quotes Hugo Adam Bedau, a prominent abolitionist, to the effect that the record fails to establishthat innocent defendants have been executed in the past. But this doesn’t mean, as Koch implies, that it hasn’thappened. All Bedau was saying was that doubt concerning executed prisoners’ guilt are almost never resolved.Bedau is at work now on an effort to determine how many wrongful death sentences may have been imposed:his list of murder convictions since 1900 in which the state eventually admitted error is some 400 cases long.Of course, very few of these cases involved actual executions: the mistakes that Bedau documents wereuncovered precisely because the prisoner was alive and able to fight for his vindication. The cases wheresomeone is executed are the very cases in which we’re least likely to learn that we got the wrong man.I don’t claim that executions of entirely innocent people will occur very often. But they will occur. Andother sorts of mistakes already have. Roosevelt Green was executed in Georgia two days before J.C. Shaw.Green and an accomplice kidnapped a young woman. Green swore that his companion shot her to death afterGreen had left, and that he knew nothing about the murder. Green’s claim was supported by a statement thathis accomplice made to a witness after the crime. The jury never resolved whether Green was telling the truth,and when he tried to take a polygraph examination a few days before his scheduled execution, the state ofGeorgia refused to allow the examiner into the prison. As the pressure for symbolic retribution mounts, thecourts, like the public, are losing patience with such details. Green was electrocuted on January 9, whilemembers of the Ku Klux Klan rallied outside the prison.The there is another sort of arbitrariness that happens all the time. Last October, Louisiana executeda man named Ernest Knighton. Knighton had killed a gas station owner during a robbery. Like any murder,this was a terrible crime. But it was not premeditated, and is the sort of crime that very rarely results in a deathsentence. Why was Knighton electrocuted when almost everyone else who committed the same offense wasnot? Was it because he was black? Was it because his victim and all 12 members of the jury that sentencedhim were white? Was it because Knighton’s court-appointed lawyer presented no evidence on his behalf at hissentencing hearing? Or maybe there’s no reason except bad luck. One thing is clear: Ernest Knighton waspicked out to die the way a fisherman takes a cricket out of a bait jar. No one cares which cricket gets impaledon the hook.Not every prisoner executed recently was chosen that randomly. But many were. And having selectedthese men so casually, so blindly, the death penalty system asks us to accept that the purpose of killing each ofthem is to affirm the sanctity of human life.The death penalty states are also learning that the death penalty is easier to advocate than it is toadminister. In Florida, where executions have become almost routine, the governor reports that nearly a thirdof his time is spent reviewing the clemency requests of condemned prisoners. The Florida Supreme Court ishopelessly backlogged with death cases. Some have taken five years to decide, and the reset of the Court’swork waits in line behind the death appeals. Florida’s death row currently holds more than 230 prisoners.State officials are reportedly considering building a special “death prison” devoted entirely to the isolation andelectrocution of the condemned. The state is also considering the creation of a special public defender until thatwill do nothing else but handle death penalty appeals. The death penalty, in short, is spawning death agencies.789101112

And what is Florida getting for all of this? The state went through almost all of 1983 without executinganyone: its rate of intentional homicide declined by 17 percent. Last year Florida executed eight people – themost of any state, and the sixth highest total for any year since Florida started electrocuting people back in1924. Elsewhere in the U.S. last year, the homicide rate continued to decline. But in Florida, it actually roseby 5.1 percent.But these are just the tiresome facts. The electric chair has been a centerpiece of each of Koch’srecent political campaigns, and he knows better than anyone who little the facts have to do with the public’ssupport for capital punishment. What really fuels the death penalty is the justifiable frustration and rage ofpeople who see that the government is not coping with violent crime. So what if the death penalty doesn’twork? At least it gives us the satisfaction of knowing that we got one or two of the sons of bitches.Perhaps we want retribution on the flesh and bone of a handful of convicted murders so badly thatwe’re willing to close our eyes to all of the demoralization and dangers that come with it. A lot of politiciansthink so, and they may be right. But if they are, then let’s at least look honestly at what we’re doing. Thislottery of death both comes from and encourages an attitude toward human life that is not reverent, butreckless.And that is why the mayor is dead wrong when he confuses such fury with justice. He suggests that wetrivialize murder unless we kill murderers. By that logic, we also trivialize rape unless we sodomize rapists.The sin of Kitty Genovese’s neighbors wasn’t that they failed to stab her attacker to death. Justice doesdemand that murders be punished. And common sense demands that society be protected from them. Butneither justice nor self-preservation demands that we kill men whom we have already imprisoned.The electric chair in which J. C. Shaw died earlier this year was built in 1912 at the suggestion of SouthCarolina’s governor at the time, Cole Blease. Governor Blease’s other criminal justice initiative was animpassioned crusade in favor of lynch law. Any lesser response, the governor insisted, trivialized the loathsomecrimes of interracial rape and murder. In 1912 a lot of people agreed with Governor Blease that a properregard for justice required both lynching and the electric chair. Eventually we are going to learn that justicerequires neither.