Killing the death penalty softly.

Killing the death penalty softly.

Killing the death penalty softly.

Politics and policy.
July 2 2002 6:14 PM

Death of a Thousand Cuts

Killing the death penalty softly.

"Secrecy of Japan's Executions Is Criticized as Unduly Cruel," cried the front page of Sunday's New York Times. The article reported indignantly that Japanese inmates and their families had "emphasized the severe anguish" caused by this secrecy. Worse, said the Times, the Japanese government "refuses to release the names of the hanged, except to their relatives, or even to confirm the number of prisoners on death row."

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The Times hasn't been this worked up about capital punishment since a year ago, when Attorney General John Ashcroft decided that families of victims of the Oklahoma City bombing could watch the execution of the culprit, Timothy McVeigh, on closed-circuit TV. "Executionon TV Brings Little Solace," a Times headline scolded at the time. A Times editorial warned that "permitting television cameras for general public broadcast would make a cruel and unusual spectacle of the legally mandated sentence."

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

You get the picture. The Times isn't really angry that the death penalty is administered too secretly in Japan or too openly in the United States. It's angry that the death penalty is administered at all. But most Americans don't share that view, so the Times and other critics seize on any related issue—the killer's youth or mental capacity, the execution's secrecy or publicity—that might buy extra sympathy for the condemned. Over time, these related issues add up. If you can't kill murderers when they're too young or too old, too dumb or too smart, killed secretly or killed openly, then you can't kill them at all. That's the objective all these arguments are meant to disguise.

Death penalty exemptions tend to start out simple and get more complicated. On June 21, for example, the Supreme Court prohibited executions of retarded people. "To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded," the court observed. So, where did the court draw the line? It didn't. "We leave to the State[s] the task of developing appropriate ways to enforce" the exemption, said the court. The Times asserted that IQ scores provide a "generally accepted definition of mental retardation." But as Slate pointed out last year, the same killer often scores over and under the line on successive tests, and the same legislator who draws the IQ line at one score this year sometimes draws it at a higher score the next.

Meanwhile, opponents of capital punishment are trying to narrow the range of executable inmates from the other end of the IQ curve. If you aren't too dumb to put to death, they say you're too smart. Last year, many of the same Texas editorialists who sought a halt to executions of retarded people urged the state not to kill Napoleon Beazley, a carjacker who had shot to death his 63-year-old victim. Beazley, they argued, was "bright," "smart," "intelligent," and a "good student" who had just "fallen in with a bad crowd." Similar excuses were made for John Walker Lindh, the "American Taliban" whose capture last fall provoked debate over whether to try and execute him for treason. Lindh's defenders emphasized what a "gifted," "capable," and "intelligent" student he was.

The stronger case made by Beazley's advocates was that he was only 17 when he pulled the trigger. We shouldn't execute young people, should we? But death-penalty opponents aren't willing to execute old people, either. Six months ago, they cried foul when a Texas prosecutor charged 74-year-old Melvin Hale with capital murder for shooting to death a 28-year-old state trooper during a traffic stop. Hale's lawyer pleaded that his client was "frail," and anti-death-penalty activists questioned whether a capital sentence for an old man "serves the interest of even law enforcement and society."

This tactic of arguing every question both ways goes on and on. The American system is held to be cruel because it tells inmates when they'll die, leaving them to agonize for months over a certain fate. The Japanese system is held to be cruel because it doesn't tell inmates when they'll die, leaving them to agonize for years over an uncertain fate. When appellate courts certify errors in capital murder cases, activists say the trial courts are flawed. When appellate courts don't certify  errors in capital murder cases, activists say the appellate courts are flawed. Two months ago, when Maryland Gov. Parris Glendening declared a moratorium on executions, effectively overruling every jury that had authorized a death sentence in that state, the Washington Post praised him and argued that he should have ended the practice permanently. But this week, the Post chided Ashcroft on its front page for "aggressively pursuing the federal death penalty and frequently overruling his own prosecutors in the process."

The strongest argument against capital punishment is that some of the people sentenced to death were wrongly convicted, as demonstrated by DNA evidence. That's the argument on which a federal judge relied yesterday in an opinion declaring the current federal death penalty statute unconstitutional. Yet the judge applied this ruling only to a case before him that hadn't yet come to trial. He wasn't using evidence of wrongful convictions to bar the killing of defendants who had been wrongly convicted. He was using it to bar the killing of two defendants whose guilt or innocence hadn't been tested in court. For all we know, they were caught murdering a man on videotape. The same could be true in any murder case in any state that bans capital punishment on the grounds of its fallibility. Even the simplest and seemingly most precise argument for narrowing the death penalty—that innocent people shouldn't be killed—has become a tool for exempting everyone.

Ballot Box is one of those mushy-middle Americans who favor capital punishment in principle but are deeply uneasy about it. We're open to persuasion by those who seek its abolition. But we'd regard them with less suspicion if they'd just come out and say that's what they're after, instead of cloaking their agenda in a patchwork of pretexts that add up to the same thing.