Tuesday, March 29, 2011

Killing State

Capital punishment in at least one form has existed since the beginning of civilization. It has been brutal, it has been fast, and always in America it has been an option. Over the years however, it has made a drastic transition. It has transformed from a common ruling later proceeded by commutations and leniency to one of rare sentencing and aggressive efforts to see it through. In the brief passage from Scott Turow’s Ultimate Punishment: A Lawyer’s Reflections on Dealing With the Death Penalty he briefly explores capital punishment’s current state by referring to its history in context to other emerging ideas at the time, and comparing that to the societal norms that allow us as a people to incarcerate and kill fellow humans.

One of the central principles that led to the founding of our republic was that of humanism, the belief in a universal morality that could always be applied through rationality and human appeals to logic. This is particularly evident in Thomas Jefferson’s Declaration of Independence that lists a largely logical and fact based series of complaints as to how Britain has neglected the colonies and reasons for breaking into a separate government. Essentially, that as long as people are rational thinking beings they can be reasoned with and no actions can be taken against said persons without proper legal process. When Thomas Jefferson wrote the Declaration though, it became painfully obvious that the king had not been rational nor had he been receptive to legal actions, therefore the colonies had gained the right to become independent. This same reasoning allowed for the death penalty and capital crimes to permeate into the fabric of American society. Theoretically, society appeals to the criminal on multiple occasions—during development, at school, during social events, etc.—and if he or she cannot be rational and not overstep society’s boundaries then the criminal forfeits his or her rights to “life, liberty, and property” as defined in the 5th and 14th Amendments to the U.S. Constitution. Of course, all of this must happen in a court of law and the criminal must be given due process.

This gives way to the central argument of capital punishment, that by the time the criminal is on death row he or she is “irredeemable” and society can do nothing to rectify the person. The criminal is no longer a human with a soul, just an irrational animal that poses a danger to the world. And usually, the only solution for uncontrollable dangerous animals is to kill it. It follows quite dangerously down the road of thought that the death sentence changes a person from a him or her to an it.

Quite possibly this was intentional, more likely than not it was the product of a lazy and decadent empire that could not deal with rising unrest and social change that such a global enterprise usually elicits. Historically, the easiest way to get rid of criminals in the British Empire was to ship them overseas away from government business. Even if they weren’t criminals, but dangerous to the government’s power, the offender’s were simply excommunicated to distant places. The puritans that landed on Plymouth Rock in the 1600s were these very people. The whole colony of Australia was composed of such criminals. They were unwanted by their country and if they returned they could have quite possibly been executed. It became obvious that the government just didn’t have time to deal with these people. The solution was simple but in the case of criminals would never actually rectify the situation. It was simply moving it out of sight. The government never had or has time to address issues of poverty, crime, abuse, and societal malaise, instead it focuses/ed on headline grabbing foreign affairs specifically in the instances of the British Empire and the New American Nuclear State. This lack of concentration on the prevention of crime and subsequent rehabilitation of criminals creates the justice system that is on our hands today. The penal system is aptly named, with over 2.1 million prisoners incarcerated in jails there are relatively few programs concentrated on making prisoners into functioning citizens again, and for those scant programs all are under funded and the first to be cut in times of budget pinches. In a system where the people in it are treated as lost, it becomes a natural next step to say that these things who no longer require intellectual stimulation, good hygiene, real social interaction, or even their basic human rights anymore can be executed or forgotten about, left to rot away in an indifferent system.

In the passage, Turow explains simply that this inherent right to take away life, liberty, and property is not so inherent at all. In fact, the premises would never have entered into the social consciousness without John Locke. Along with a government’s right to give these rights to the people, a government also inherently reserves the right to take these rights away; Locke writes strongly, when the “social contract” is broken, as Locke calls it, then the offended have the right to ramifications. In the case of the Revolutionary war that right was the seed for the free world, but in the case of prisoners—and specifically death row inmates—that idea is the ticket to captivity. So the Death penalty becomes almost paradoxical, in that a right traditionally reserved for the people to prevent abusive government is used to stop abusive citizens and protect the government.

Based strictly on the constitution, the death penalty appears to be legal, but in Turow’s passage, he realizes that this concept is outdated and impractical in today’s world. Turow’s specific reference to the past and the death penalty’s associations with old Imperialist Britain illustrate fully its inadequacy and radically ancient application. A look at relevant documents from the time indicates that there was a change of mindset somewhere along the way. There is a subtle but distinct evolution from freedom-fighters to governors of a free-state. This difference is the cinch that allows the death penalty. Observe that in the Declaration of Independence, it asserts vehemently that all men are created equal and that there are certain rights that can never be taken away. Those “inalienable” rights are Life and Liberty. In the constitution however, these inalienable rights are now “rights” only in the sense that they are inherent but not in the sense that they can never be taken away. That simple phrasing in the 5th amendment, that life and liberty can be taken away with due process, essentially allows the death penalty.

What is due process though? The inability of a proper judging mechanism that is sufficiently objective and knowledgeable in this country means that “due process” often results in sham cases that strip Americans of those essential rights to life and liberty. As long as juries can be swayed by emotional appeals, as long as judges can ignore poor representation, and as America consents, then the death penalty and its injustices will continue. Due process is a fair trial that irregardless of those factors can deliver an objective and truthful verdict. The proof that due process so far as it is known in the states isn’t that lies in the sheer number of acquittals based on DNA evidence, and the disproportionate numbers of poor, retarded inmates that occupy death row.

Who knows how many innocent people have been killed because the justice system and its founding principles are both outdated and inadequate. The use of the death penalty in a system as broken and irrelevant as America’s will always result in innocents dying, rich guilty men walking, and injustice being served all around. Turow is right to say that the death penalty is marred by its history, and he should have also noted that it will continue to be marred until such time as fairness can be guaranteed. Without said guarantee, we will be no better than the very people whose bonds we broke all those years ago to become a free, better nation.