CAPITAL
PUNISHMENT
conte
mplated
what to
write
this
morning,
I myself
had
associat
ed
“capital”
with the
most
importa
nt
political
center
in each
nationalstate
center.
Woops!
Hal Pepinsky Indiana University, Bloomington, USA, and Walden University,
USA 2002
I am profoundly ambivalent about attending to the death penalty as much as to
other more globally pervasive issues of punishment, such as increased use of
incarceration. On one hand, in the United States, my own birthplace and residence, I
greatly admire the courage of people like my colleague, Marla Sandys, who does
pioneering research to abolish the death penalty, or Dennis Longmire, who holds a
candle vigil at the death house, two blocks down the road from his office in
Huntsville,Texas, home of a majority of U.S. executions, every time he is in town for
another lethal injection. On the other hand, the number of places using the death
penalty is dwindling, while use of other forms of punishment continue to grow even in
the many countries with no death penalty, posing a greater and more enduring challenge
to penal abolitionists worldwide.
As I trace social trends, I trace trends in rhetoric. I hear “death penalty” more
now, a term long since used by “death-penalty opponents.” I haven't checked lately, but
I'll wager that the major term still used in U.S. criminal justice texts is “capital
punishment.” Until I got asked to be on this death-penalty lead-in session to the Tenth
International Conference on Penal Abolition, I hadn't really thought through what
“capital punishment” means. Now I realize, “capital” means “beheading” as punishment.
Until I
King Henry VIII had Anne Boleyn and Sir Thomas More's heads cut off. That's the
death penalty in the so-called civilized world. You are cold-bloodly killed for having
offended the crown, never mind victims' feelings.
There remains a fiction that capital punishment is done for the sake of those
close to murder victims, at least in the United States, where so far in recent history you
have to have killed someone to be executed. In my class of two or three hundred each
semester on Alternative Social Control Systems, I introduce voices including that of Bill
Pelke, cofounder of Murder Victims Families for Reconciliation (http://www.mvfr.org ),
to indicate that some murder survivors are able to remember victims as they lived
rather than as they died as they let go of vengeance toward their murderers, or merely
by confronting their offenders. Whether or not Bill or anyone else calls this
“forgiveness,”
it is a theme I find recurrently in survivors' stories. This transition in feelings both
about the victim and offender are, as Bill and others tell it, a gift to the survivor rather
than a favor to the offender.
In places like Saudi Arabia, on grounds of adherence to Sunni sharia, victims'
family members retain the right to spare a murderer execution. I wonder: Which family
members speak on behalf of which dissenting others? The patriarch no doubt speaks on
behalf of his family. But do they agree? doubt it.
I know of no programmatic solution to capital punishment. Just now in the
United States, the Supreme Court has ruled that juries (normally by state law, twelve,
unanimously) are the only ones who can impose death sentences. Perhaps the political
will to impose execution is collapsing even among the highest judges in the country. On
another political tack, the governor of Maryland has declared a moratorium on
executions pending examination of apparent racial discrimination in imposition of death
sentences. This flies in the face of a U.S. Supreme Court decision a couple of decades
ago that statistical evidence of racial disparity in death sentencing had no legal
significance. Moratoria, reversals of sentence, and prosecutorial decisions to seek
sentences like “life without parole” proliferate in my homeland. When the death penalty
comes up at the next ICOPA, perhaps I won't have to seem so embarrassed by the
prevailing political winds of my birthplace.
Globally, imposition of the death penalty has become an increasingly irrational
historical relic. For the United States and Nigeria, whose legal systems alike are heirs of
British colonialism, imposition of the death penalty remains what Cesare Beccaria called
“political spectacle.”
Manifestly, as I understand it, execution in Nigeria has been a tool of political
grandstanding. Certainly, execution in the United States peaked out when Timothy
McVeigh failed to appeal his sentence, and was executed for having murdered 187
innocent people in the Oklahoma City federal building. Where do U.S. politicians go
from there? Even those convicted of brutal murder of several people seem trivial by
comparison. And if U.S. prosecutors were able to convict a survivor for having
murdered all the people killed on 9/11/2001 in the country, how could the punishment
for thousands of murders top McVeigh's?
Lynching aside, public executions ended in the United States about a century ago.
The death penalty was abolished in Michigan in the middle of the nineteenth century
after the governor's wife witnessed and was appalled by a hanging. Today, capital
punishment is rationalized in various places regardless of its supposed public deterrent
effect. In Saudi Arabia, capital punishment is still carried out in the middle of town. In
other places like Japan and Tanzania, capital punishment remains a state secret.
A doctoral advisee of mine, George Kakoti, a distinguished Tanzanian trial lawyer,
is currently studying Tanzanian Court of Appeal (highest appeal) murder cases in
Tanzania. Tanzania is a fascinating contrast to the United States in many respects. While
in the United States it is enshrined that death-penalty juries way “aggravating” and
“mitigating circumstances,” in Tanzania, whoever is convicted of “murder,” of killing
“with malice,” is automatically sentenced to death. The first president of Tanzania, Julius
Nyerere, acknowledged having commuted all but two death sentences. Reports are that
his successor approved practically all death sentences, while the current president has
joined Nyerere in commuting them all so far. George Kakoti is examining whether the
formally secret disposition of their presidents led Court of Appeal judges to review facts
and law of capital appellants more closely in the second president's term. Unlike U.S.
appellate courts, the Tanzanian Court of Appeals reviews issues of “facts” as well as of
“law.”
There is a wealth to be learned here about how people assume or abdicate
responsibility for sentencing others to death.
Here's my ambivalence. I believe that the death penalty is slowly but surely
collapsing worldwide. I hesitate to celebrate, although I am encouraged. If one is
opposed to punishment, it is politically convenient to be opposed to capital punishment,
because capital punishment lies at the fringes of global justification for punishment in any
form. I am concerned that too much concentration on capital punishment diverts
attention from the broader problems of global violence. To me, the underlying problem
with punishing capitally is in the attempt to make human relations safer by punishing at
all. Although I have personally met innocent people who have been let off death row in
Florida, Ohio, and Texas, I can't even believe that innocents who are executed present a
worse problem than the killing and other punishment of innocents I see locally and
globally every day, in large numbers.
Punishment is the problem. I take the title ICOPA seriously. I stand for “penal
abolition” not because I hope to stamp out violence, but because I hope to transform
punishment in all its manifestations into sharing and empathic relations. I don't mind
being called “radical.” Capital punishment is merely the tip of the iceberg that punishing
identified “enemies” or “offenders” causes us every day, in so many ways. In a way,
attention to the obscenity of capital punishment distracts from the destructiveness
generally of giving transgressors “consequences” as a way of addressing social problems.
It is a blessing that people recognize and resist violence. It is a curse that people become
arrogant enough to assume a super-karmic position of doing pain as doing justice unto
others. By this principle, cycles of war and violence only escalate, in a game of power
that the already powerful tend inevitably to win. In the process, war and punishment
always prove to be unfair.
Political leaders who sanction capital punishment are often displacing attention
from their own ruthless, homicidal efforts to cling to power. The regime of divine
retribution is mirrored at interpersonal levels, where for instance righteous family
patriarchs batter “their” women and children, even homicidally. Even if those punished
are truly guilty of offenses for which they are condemned, the punishment inflicts
suffering on innocent children and others with whom the offenders are associated. As
Murder Victims Families for Reconciliation members report, victims are left as angry and
unsettled as ever once punishment is inflicted. Overall, infliction of punishment leaves
both punishers and bystanders, including victims, feeling more insecure than before.
What will now be done to make both the powerful and the powerless safer in one
another's company?
Advocates of restorative justice and of peacemaking who are so prominent at
ICOPAs are, I think, struggling to break cycles of violence so clearly manifested in capital
punishment. I seek training and experience in mediation of violence to identify and
create ways to defuse violence rather than fighting violence with violence. I am awed
and inspired by efforts to break extreme cycles of homicidal violence, as in using the
traditional council or gacaca in Rwanda to resolve inter-tribal genocide, or using the
Truth and Reconciliation Commission to break with South Africa's apartheid past. As
restorative justice advocates say, this is an effort to repair harm done rather than to
right wrongs. I don't pay much attention to capital punishment in my teaching. There is
so much other, more endemic violence to address. Still, I am often asked by students
whether I support the death penalty. I am a little surprised. After all, I am manifestly
against punishment, period. It is unfortunate to me that we so compartmentalize our
positions on social issues. I am heartened that globally as in my homeland, capital
punishment is falling into greater disfavor. I am hopeful that in the process, we will learn
that punishment in any form is the major obstacle to safe, fair, social orders, capital or
not.