dangers of exceptionalism

On Troy Davis, Lawrence Brewer, Capital Punishment, and — again — on Being America

Below is the text of a public post I made on Google+ last night; I wanted to put it here, as well, and to make a couple of other notes on the subject.

State-enacted killing of innocent (and not-proven-guilty) persons is a necessary, inevitable feature and consequence of a legal system which allows the death penalty. There is no such thing in the world as perfection: all systems fail sometimes, all humans are fallible. The theory, though not the implementation, of the criminal justice system we have in the United States is probably one of the most resistant to failures, but there is not and can never be a system which never fails.

Knowing that systems always fail, the only rational thing to do is to try to design them not only so that they fail as infrequently as possible, but also so that their failures are as mitigated, and do as little damage, as possible.

A system which allows execution as punishment for crimes is a system which will — not can, not could, but WILL — kill innocent people. Troy Davis is far from the first, and so long as the death penalty is legal in this country he won’t be the last.

To support the death penalty is, inescapably, to support legalized killing by the government of innocent persons. The vast majority, I am sure, of death penalty supporters think that such cases are deeply regrettable, and that efforts should be made to avoid them; but as long as the state is allowed to kill people, it will sometimes kill innocent people.

Supporting the death penalty requires either a belief against all evidence, all facts, and all reason — a willful delusion — that some human legal system could possibly be so infallible as never to put an innocent person to death; or a belief that some rate of wrongful executions of innocents is acceptable in order to kill criminals.

Either is deeply troubling, but the latter especially makes my blood run cold.

This is what we are, in the United States of America. We tell ourselves, as a society, a lot of stories about our history, about the important people in our history, about the founding values of our country, about “what it means” to be an American. Most of them are lies.

What it means to be an American is to claim to be uniquely virtuous in the world, while living atop the piled-high bones of centuries of genocide and atrocity, profiting to this day from centuries of stolen labor, claiming the mountain of bodies on which we stand and the filth-filled gully below it together constitute a level playing field. What it means to be an American is to tell other countries to respect human rights, while we tap our own citizens’ phones, kidnap and torture people on mere suspicion of having connections to “the terrorists,” and proudly murder a man whose guilt of the crime for which he dies is not proven.

We are a nation of vicious, hypocritical cowards; we should own up to it, at least.

That post discusses the inevitability of killing innocents under the legal death penalty, and the lies we tell ourselves about ourselves in the US — something I also wrote about a couple years ago, after Shepard Smith was so angry about torture that he dropped an F-bomb on-air; then, I said: “And all of [this] does count.  We don’t get to pretend it didn’t happen.  We don’t get to pretend someone else did it.”

But the other thing I want to say is this: Lawrence Brewer, who was one of the three men who murdered James Byrd, Jr. in 1998 merely for being Black, and who was unequivocally, confessedly, unrepentantly guilty, was also executed last night. There’s an enormous amount of doubt about Davis’s guilt; there is none at all about Brewer’s. He was proud of what he’d done.

For the state to kill him — no matter how strongly one might believe (and I do) that the world is no worse off for not having him in it anymore — was nonetheless every bit as unjust and barbaric as was Troy Davis’s execution.

The state’s power to enact and enforce laws, and to try, convict, and penalize those who break them, arises from society’s right and obligation to keep itself intact, functioning, and healthy. In principle, though frequently not in practice (see above, re: impossibility of perfection), laws represent the lines drawn by society to protect itself: what falls outside those lines is too harmful to society to be allowed. And so to keep itself healthy, a society has the right to create mechanisms to try to prevent that harm, such as imprisonment to prevent perpetrators from causing further harm; well-known penalties such that people tempted to break the law will decide the risk is too great; requirements where possible that the perpetrator(s) compensate the victim(s), and reform and rehabilitation programs to make it easy for people who’ve done harm to society to instead find ways to help it. But society only has the right to do this so long as the mechanisms it puts in place are themselves within the harm threshold.

Capital punishment by the state is, in my view, inherently as far outside the harm threshold as murder is. A murder is, by definition, a harm that cannot be compensated for: no recompense or restitution can be made for a death, because lives are not objects and do not have a price. A victim’s family might want, as the MacPhails did in the Davis case, the killer to be killed; or they might want, as the Byrds did in the Brewer case, the killer’s life to be spared. But the law should never be an instrument of personal revenge: society’s concern is protecting, preserving, and keeping itself healthy, not enacting vengeance on behalf of individuals. If someone is a continuing danger — Brewer is reported to have told a reporter the day before his death, “I have no regrets. No, I’d do it all over again, to tell you the truth.” — society is justified in keeping that individual isolated, to prevent further harm. But just as we might take prisoners of war, and hold them for the duration of the conflict, but are compelled by law and decency to treat them humanely, and forbidden to kill them, so too is it inhumane to kill a killer.