Choosing Death
Posted Saturday, June 23, 2001, at 12:00 AM ETOn June 15, a group of activists led by a Catholic bishop staged a news conference in Austin, Texas, to promote legislation outlawing a procedure they described as the indiscriminate taking of human life. The bishop, joined by a state senator, argued that the victims of this procedure were morally equivalent to children. Vetoing the legislation two days later, the governor disagreed. "This legislation is not about whether" to end human life, he explained. "It's about who makes the determination."
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StumbleUponAnother abortion fight? Nope. This time the issue was the death penalty, and the question at hand was whether to ban the execution of retarded killers. Like the abortion debate, the death penalty debate has a pro-life side and a pro-choice side. The positions, however, are reversed. Cynics have often observed that people who want to ban the destruction of unborn life tolerate the executions of convicted murderers, while people who want to ban executions tolerate the destruction of unborn life. But increasingly, the irony extends to the concept of choice. Politicians who reject the right to choose abortion—including the governor of Texas and the president of the United States—now sidestep the unpleasant facts and dubious ethics of the most difficult death penalty cases by arguing that judges and politicians should leave decisions about capital punishment in the hands of individual jurors. The death penalty debate has become the abortion debate upside-down.
Abortion and execution differ in obvious ways. Fetuses lack the mental development and physical independence of born humans; convicted murderers lack the innocence of fetuses. An abortion ban would override the decision of the woman in whose body the life at stake resides; an execution ban would override the decision of a juror whose connection to the life at stake is, by virtue of distance, less proprietary and less self-interested. Politically, however, the dynamics of the two issues have become almost identical. Activists who want to outlaw all abortions or all executions know, from polls and legislative defeats, that most people don't share that objective. At the same time, they know that they can get majority support for outlawing some abortions or some executions. The trick is to focus the debate on the most troubling subset of cases. In the abortion debate, the subset is late-term fetuses. In the death penalty debate, the subset is mentally retarded convicts.
Like the campaign against "partial-birth" abortions, the campaign against executing retarded murderers draws its logic from polls. Death penalty opponents routinely point out that although surveys show overwhelming support for the death penalty in general, the same surveys show overwhelming opposition to executing convicts who are retarded. The implication, often spelled out, is that legislators and governors should heed these numbers. So far, the strategy is paying off. Of the 38 states that permit capital punishment, 15 have banned its application to retarded killers.
Most experts equate retardation with an IQ of 70 or below. Others dispute that number, and some prefer subtler measures of a person's ability to adapt and function in society. Scientifically, it's hard to define. But politically, that's the point. Pro-lifers on execution, like pro-lifers on abortion, have no intention of settling for such a small part of their agenda. They just want to make the first step look easy. Once you've agreed that it's wrong to kill an inmate with an IQ of 70, they'll ask why it's OK to kill an inmate with an IQ of 71. Or how about the Texas inmate—subsequently executed—who scored 64 on one IQ test and 76 on another? Two years ago, Texas state Sen. Rodney Ellis proposed a bill to outlaw the execution of anyone with an IQ of 65 or lower. Ellis claimed to support capital punishment and assured everyone that he was drawing a bright line. "If you score above 65 and you're on death row, be prepared to meet your maker," he vowed. But this year, Ellis campaigned for a bill that would have removed that threshold, allowing the magic number to rise by default to 70.
Once the standard of retardation has been stretched to encompass as many inmates as possible, the next step is to broaden the rationale for this exemption so that it applies to murderers who aren't retarded. Initially, killing retarded prisoners was said to be wrong because they couldn't understand what was being done to them and why. Then it was said to be wrong because these prisoners resembled children and shared their innocence. Now it's wrong, according to the Chicago Tribune, because retarded people are "more willing to confess to crimes they did not commit," "may not fully understand their Miranda rights," and "are less capable of participating effectively in their own defense." More broadly, according to Ellis, killing people who are afflicted with retardation isn't "compassionate." These concerns may be valid, but the point is that they aren't confined to retarded people. Once you accept them as reasons to forgo the death penalty, you're left wondering why it's OK to execute anyone who is stupid, naive, or unfortunate.
Confronted with this slippery slope, the opposition's natural impulse is to concede whatever territory can't be defended, draw a line, and dig in. For abortion rights advocates, the conceded territory is "partial births," and the line is fetal viability. For death penalty supporters, the conceded territory is retardation, and the line is comprehension of right and wrong. But politically, this strategy never works. Parsing the relative awfulness of various abortions or executions just makes the public queasy about the whole business, which is exactly what abolitionists want. Moreover, the logic of the concession always overwhelms the line of defense. Last week, President Bush and his successor in Texas, Republican Gov. Rick Perry, conceded that "we should never execute someone who is retarded." At the same time, Bush and Perry refused to extend that exemption to killers who "understand right from wrong" and "understand the nature of the crime they committed." In response, the press corps, which reviles the death penalty, pointed out that many retarded criminals possess such understanding. The White House's subsequent arguments about the true meaning of "retarded" were no more politically helpful than the Reagan White House's arguments about the true meaning of "needy."
The better strategy—the one that has stymied pro-lifers in the abortion fight—is to refuse to debate the morality of specific categories and cases. Instead, the trick is to change the question from substance to process, from ethics to jurisdiction, from what's decided to "who decides." That's the message the National Abortion and Reproductive Rights Action League has used against Bush, Perry, and other anti-abortion candidates: They want to take away your right to choose and give it to politicians and judges. They don't trust you.
And that's precisely the argument Bush and Perry are now deploying against opponents of the death penalty. Two years ago, when the Texas Legislature debated whether to ban the execution of retarded killers, then-Gov. Bush opposed the bill. "That's up to the juries to make those decisions," he reasoned. Last week, Perry announced that he was vetoing a similar bill because it gave "judges the power to overturn a jury's determination of whether a murderer is mentally retarded." Noting that Texas law already authorized jurors to consider mental incapacity as a mitigating factor, Perry insisted that "a jury is the proper and final decision-maker about the facts." The bill "basically tells the citizens of this state, 'We don't trust you to get it right,' " he charged. "This legislation is not about whether to execute mentally retarded murderers. … It is about who determines whether a defendant is mentally retarded."
Once the debate rotates from the "what" dimension to the "who" dimension, the burden of explanation shifts to pro-lifers. Why don't they trust you to make these decisions? What makes them think they know better than you do? The moral difficulty of sorting out each case—Is it OK to execute a child-killer with an IQ of 55? A killer with an IQ of 75 who was brutally beaten by his father?—becomes a rationale for jury discretion rather than for ever-broader restrictions on capital punishment. Pro-lifers have to explain not why it's tragic to kill retarded people, but why that tragedy should categorically override the other facts of each case. "Mental retardation should not be a mitigating factor, it should be the defining issue," Ellis argued in reply to Perry's veto message. "We don't want the jury or the judge to have the option to execute the mentally retarded."
Maybe Ellis can win that argument. But it's going to be a lot harder than winning an argument about the moral discomfort of killing retarded people.
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Reader Comments From The Fray:
[Notes from the Fray Editor: There were more good posts and threads here ("Are you Smart Enough to Die?"), here (how successful have pro-lifers' been?) and here (great thread on juries' rights). And the Fray team is preparing itself to appear as a witness at Arthur Stock's trial, below: though we don't really think we'll be able to testify in the way he is hoping for.]
Bush "pro-choice" position is actually even more disingenuous than Saletan states. In states that don't have laws like the one just vetoed in Texas, jurors are not instructed that they are to determine whether the defendant is mentally retarded and withhold the death sentence if he or she is retarded. Rather, jurors are simply told that retardation is a "mitigating factor", but that the jury can still impose death if they decide that "aggravating factors" such as the severity of the crime and the dangerousness of the defendant outweigh the issue of the defendant's retardation.
The "pro-choice" argument is premised on the idea that juries have actually found these people to not be retarded and that it would be inappropriate to overturn that decision. But in fact, the way juries are instructed, they may well have simply found that the defendant was retarded but should be executed anyway. Bush and his ideological cohorts have never explained why that decision should be entitled to any deference.
If they were really sincere about giving the jury the final say on retardation, they would support a law requiring an instruction be given to juries that they decide that the defendant is not retarded before imposing the death penalty. That they don't support such a law shows that the issue is not about letting the jury decide retardation rather than a judge, but rather about their support for executing retarded people.
--Dilan Esper
(To reply, click here.)
Few people agree that abortion should be an unlimited right tantamount to birth control. Since there is a diversity of opinion medically, ethically, and theologically, some entity is forced to make a decision. Should that entity be the state, the church, the courts, or the individual?…Recognizing that some individuals will make a choice I would not agree with, I would nevertheless opt to leave the choice to the parents of the child.
No such questions are found in death penalty cases. The questions here are about punishment for a crime, the ability of the accused to be held responsible for their actions, and the needs of society to both protect itself and to protect the innocent. It is difficult to convince me that anything is gained by terminating the life of a criminal. And much is lost.
There is one thing that both issues have in common. The state is never very good at playing God, and probably ought to stay out of that business.
--Stephen Beals
(To reply, click here.)
If I were charged with a capital crime, I would request an IQ test. I bet I could figure out how to score below 70 or whatever number is needed. True, it's not like the SAT's, and involves observation by a "trained psychologist," not just a written test. Still, I could beat a test if my life depended on it. At least, the expert retained by my legal team would be convinced, and that's half the battle. Two responses to those who suggest that evidence of past academic/professional record, etc. would disprove my claim:
1) I could bang my head against the cell wall just enough to make a claim of recent brain damage plausible, since the relevant issue is retardation at the time of execution, not crime.
2) At trial, if the prosecutor argued that I was not an idiot, my attorney could rebut by introducing evidence of my past contributions to The Fray.
--Arthur Stock
(To reply, click here.)
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