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.

On Security Theater

(Updated below)

I assume that y’all are more or less familiar with the TSA’s new “security” measures — you get the choice of submitting to a full-body imaging scan which produces detailed images of your naked body, which images are then supposed to be but not necessarily actually destroyed, or of submitting to an “enhanced pat-down” (and if you think that sounds a lot like “enhanced interrogation technique,” well, that’s maybe not such a coincidence) in which a TSA employee of the same gender (as long as you’re cis and your gender presentation fits the conventional binary) gropes your entire body, chest and groin included.  If you’re inside security and try to refuse both procedures, you will neither be allowed on the plane nor allowed to leave the airport without being threatened with arrest and hefty fines.  I’m dashing this post off quickly, so I won’t include links to sources — I’m confident that Google will back me up.

A few points about this situation, though they’re probably not going to be new ideas to anyone.

  • There is no reason whatsoever to believe this will in any way make air travel safer.  People who want to sneak things onto planes will still find ways to do so, because people who want to sneak things onto planes are not stupid, and will be able to figure out, just as I have figured out, and just as you have probably figured out, that neither the grope-down nor the naked scanner will reveal any objects hidden inside a person’s body.  People who, for example, want to blow up a plane while they’re on it are probably not going to be deterred by the idea of sneaking the explosives on by swallowing them or inserting them rectally — after all, drug smugglers have been doing so for ages.
  • What makes air travel safer is good investigative and intelligence work, so that plots against air travel can be stopped in the planning stage, before anyone gets on a plane.
  • Approximately one in six American women has been the victim of rape or sexual assault in her lifetime.  That means about 8% (at least) of the flying public are now legally required to relive their sexual assaults.  (The remaining 92% are “merely” required to submit to an initial sexual assault.)
  • A common refrain from defenders of the new measures is “I’d rather be groped than blown up.”  It’s crucially important to try to get through to people who argue that, that being groped in no way reduces their already-minuscule chances of being blown up.
  • Another common claim is “we have to do anything we can to prevent another 9/11.”  But, aside from the aforementioned intelligence work, which we aren’t doing as much of as we should because we’re distracted by nonsense security theater like this — and aside from the bill being sponsored by Rep. Markey which would require screening of 100% of air cargo, an entirely sensible measure — we have already done all we can to prevent “another 9/11.”  Namely: we locked the cockpit doors.  It will never again be possible for hijackers to gain control of an airplane and fly it into a building, killing thousands; and unless you’re just invoking the September 11th, 2001 attacks for cheap political gain you have to accept that nothing short of that would be “another 9/11.”  (The September 11th hijackers themselves also had a hand in ensuring that another such attack could never happen: they let all air passengers know, from now on, that it is not safe to assume hijackers are just after ransom and intend to the hostages unscathed once their demands are met.)
  • We have to assume that the people in charge of devising and promulgating these policies — the TSA, DHS, and up the chain to the President — are themselves also not stupid, and know just as well as some guy with a blog that there’s no plausible way the new screening methods will improve security in any meaningful sense.  We have to conclude, then, that improving security is not their purpose.
  • Finally, even supposing that there were some way in which these measures would reduce the already-minuscule chances of dying in a terrorist attack, it wouldn’t matter.  It wouldn’t matter because these searches are clearly in violation of the 4th Amendment: they are neither reasonable, nor spurred by immediate probable cause, nor backed by warrants issued on evidence of probable cause and describing the specific things to be searched for and seized.  This would be plainly true even if these techniques were effective, and the fact is that they aren’t.  (In DC v. Heller, for example, the Supreme Court made it clear that even a law which is demonstrably effective at reducing crime does not supersede [their interpretations of] the Constitution.)

Update: Of course, another thing to keep in mind here, and it’s something I’m as guilty of as anybody, is that arbitrary harassment and abuse by authorities who can’t be effectively held accountable for it have just been the status quo for many marginalized populations in the US, especially people of color, GLBTQI people, people with disabilities, poor people, etc.  It’s only now that affluent white men — John Tyner, a software engineer; Penn Jillette, a millionaire comedian — are being subjected to this kind of treatment that there appears to be some serious outrage growing.  Only now that white men aren’t treated differently from those other people.  There are all kinds of ways in which that doesn’t say anything good about our society.

Signal Boost: There Must Be Accountability

This is mainly me doing my paltry best to boost signal for Teh Portly Dyke’s post on the necessity of investigations and prosecutions for the war crimes committed by the US government over the past eight years (a subject I’ve mentioned before).

Launching a war of aggression is a war crime. Torturing prisoners is a war crime. Refusing to investigate and prosecute war crime is itself a war crime. And if the rule of law means anything, it means the mighty are bound by the same laws as the small, and president, ministers and CEOs may not be excused for their misconduct on grounds of expediency anymore than pickpockets or junkies.

PD has issued a pledge and a challenge to write letters weekly until investigations commence. I don’t know whether I will manage to do that — it often takes me months to write a single blog post — but I will try, and I encourage you to as well.

Go, Read.

Charley is exactly right:

There simply must be prosecutions. It’s not enough to imagine that we can restore the Constitution by popular vote, by just electing people of better morals, of more restraint, of greater reverence for the law and human history. Because “good people” come and go. You don’t always get the people you need in positions of power. The law itself must be affirmed, and those who intentionally and flagrantly abused its practice — for the purpose of abusing humans — must be punished.

At the close of the Constitutional Convention in 1787, someone asked Ben Franklin whether we had a monarchy or a republic. “A republic — if you can keep it,” replied Franklin. The lesson is that the Constitution is not magic, not an all-seeing eye, not a god that imperceptibly guides the machine of state. It depends on people of good faith and forbearance to keep it.

High-level Bush administration officials must be prosecuted.  Bush and Cheney must be prosecuted.  If no one at that level of power goes to jail, it will be the end of law in this country.

Something Other Than Beer

Darcy Burner is running for Dave Reichert’s congressional seat.  That seat is in Washington State, so it’s a bit out of my normal purview, but Burner has been one of the leading figures in promoting the Responsible Plan — I learned about her via Orcinus a while back.  She put up a very good post at OpenLeft last week, on the genuine threat to American democracy posed by mercenary armies like Blackwater, DynCorp, Triple Canopy, etc., which are paid (and paid very well) by our government, ostensibly, to perform supporting duties for American troops.  In actual fact, these “contractors” are carrying out combat operations, and are frequently committing crimes — up to and including rape, murder, and torture — both against Iraqis and against other Americans, including their own coworkers.  On our dime, and in our names.  And because they’re not military personnel, and the US demanded, and the Iraqis had little choice but to accept, that “contractors” not be considered under the jurisdiction of Iraqi law, they operate in a legal vacuum.  They can’t be held to account for crimes they commit.

I’ve called the offices of my Representative and Senators, and asked them to cosponsor (respectively) H.R. 4102 and S. 2398, the House and Senate versions of the Stop Outsourcing Security Act, which would prevent further funding of mercenary armies.  I respectfully ask that the readers I optimistically imagine I might have read the OpenLeft post and the bills, and call or write your Congresspeople, and ask that they consider signing on as cosponsors.

Oliver Wendell Holmes is, presumably, turning over in his grave.

This morning on the BBC World Service’s NewsHour program, broadcast on WBUR, they played an interview with Justice Antonin Scalia, who among some other very dubious arguments, said by way of justifying the idea that treatment which is Constitutionally prohibited when applied to convicted criminals, is nonetheless not necessarily even bad when applied to people who have not yet been convicted of anything, but who are reluctant to give information, that you should be able to “smack a terrorist in the face” to get him to tell you “where he planted the bomb that’s about to blow up Los Angeles.”

Leaving quite aside the shocking bad faith of pretending that what the torture arguments in the US are about is a “smack in the face” rather than violent, painful, terrifying, techniques which (even when, as the arguments for waterboarding tend to claim, they don’t leave obvious physical damage, like bruising or broken bones) can have major long-term physical and especially psychological impact on their victims, and (to stick with waterboarding for a moment) which have been universally recognized as methods of torture for centuries, I’d like to point out something else, perhaps equally horrible, about Scalia’s argument.

The “bomb about to blow up LA, so you smack a guy in the face” scenario is lifted directly from the TV show 24 (the tendency of which to legitimate, if not glorify, torture is something I think Fox has to answer for, morally speaking). Scalia is attempting to make a convincing legal argument about what the US Constitution does or does not permit based on fiction. (Nor indeed is this the first time he’s fallen back on the 24 argument.) He might as well try to support rulings about police procedure based on what works on CSI, or claim that since it worked out so well in that book by Mr. Heinlein, and since “Islamofascists” are so similar, really, to hordes of giant space insects, we should consider whether military service ought not be a prerequisite to citizenship.

It’s really incredible — in the literal sense of “impossible to believe” — that anyone, let alone a Supreme Court Justice would have the gall, or the ignorance, to claim that fictional scenarios ginned up to bring in Nielsen ratings should be considered a reasonable basis for public policy and jurisprudence.  It’s even more incredible that so few people seem to be up in arms about this.  What the hell is wrong with us?