Arguing about the right to life

The Washington Post is today carrying one of George F. Will’s bi-weekly columns. This one isn’t about the congress or the senate hearings on the confirmation of Brett Kavanaugh. It isn’t about President Trump and what often seems like chaos in the administration. He has written on these topics. But today’s column is about the death penalty and the evolution of the nation’s thinking about it.

He cites the case of Vernon Madison. For more than 30 years the State of Alabama has been trying to execute him for the 1985 murder of a police officer. I am not familiar with the case, but Will writes that it is a “crime he certainly committed.” The argument is not about his guilt or innocence, though he was twice convicted in trials that later were ruled unconstitutional. In his third trial the judge disregarded the jury’s recommended sentence of life imprisonment and imposed the death penalty.

Will, however, doesn’t invest much energy in arguing the fine points of the case or the long process by which the state has invested millions of dollars in pursuing the death penalty. He doesn’t speak much about the convoluted and extended court proceedings and legal protocols. He writes, rather, about the changes in society’s perceptions towards the death penalty.

Will is a careful writer and he points out that change is not always for the better and evolving is not the same as improving. In fact he writes that “a society can become, as America arguably is becoming, infantilized as it ‘matures.’” But he also notes that our nation’s standards of decency have evolved and our nation ’s have improved since the days of segregated lunch counters. He quotes Chief Justice Earl Warren’s 1958 words about cruel punishment that a nation “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

He cites two reasons for the death penalty. The first is retribution. The death penalty, for especially heinous crimes satisfies a sense of moral symmetry. The response to an action should be proportional to the violation of societal norms. Will notes that the Supreme Court has previously ruled that “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.” He reminds readers that the process of getting from sentencing to execution, averaging 15 years, is so long that many criminals my reach the point of losing the ability to connect the meanings of various events in their lives, thus diminishing the retributive effects of the death penalty.

Of course retribution is not the most frequently argued defense of the death penalty. I have heard more frequently the deterrence argument. It takes two forms. In one form, it is argued that the existence of the death penalty deters people from committing crimes. The fear that they will be executed prevents them from such destructive and abhorrent behavior. Research brings that argument into question. There is little evidence that the possibility of the death penalty is a factor considered by those who commit murder. There is little evidence that those who commit murder give much thought to the consequences of their actions.

The second deterrence argument is that executing a person who has committed murder deters that particular person from committing another murder. This argument carries the strength of the obvious truth that one who is executed no longer can kill another person. Opponents of the death penalty argue that the risk of a convicted person, properly incarcerated, having the opportunity to commit murder is very low. That being said, however, prison murders do exist and the victims of those murders are occasionally corrections officers.

I have been opposed to the death penalty on what I believe are different grounds, an argument that Will does not take up in his column. I believe, simply, that death is not the worst punishment that the society can impose. The fact that there are multiple cases of death row inmates choosing to end their appeals and seeking execution is evidence that some would rather die than have to live out their lives in prison. If you observe the process by which the state executes, using one drug to induce unconsciousness and then another to slow breathing and heart rate to the point of death, the clean, simple operation can easily be seen as a more desirable consequence than having to live out one’s natural life, struggle with the weight of one’s behaviors, and wonder about the final judgment, which is certainly beyond any justice that human courts can dispense.

Will’s article focuses on the case of Vernon Madison, who is barely aware of anything. He cannot remember the crime that put him on death row. After multiple serious strokes, he has vascular dementia, an irreversible and progressive degenerative disease. He also is legally blind, his speech is slurred, he has Type 2 diabetes and chronic hypertension, he cannot walk unassisted, and he has dead brain tissue and urinary incontinence.

The Supreme Court will hear oral arguments in the case on Tuesday and consider the constitutionality of executing him. He is 68 and living with all of the disabilities previously named. It is conceivable that he will not live long enough to be informed of the court’s decision when it comes. It is likely that even if he does live that long, he is incapable of making any connection between that decision and his own circumstances.

Will concludes his column by arguing that the death penalty is no longer a conservative cause or even a conservative course of action. “Conservatives have their own standards, including this one: The state — government — already is altogether too full of itself, and investing it with the power to inflict death on anyone exacerbates its sense of majesty and delusions of adequacy.”

I’ve read a lot of George Will columns. I’ve disagreed with him many, many times. This time, I believe, his argument is compelling.

I hope those who have invested so much of their energies in the right to life movement will be paying attention to the arguments and the outcome of this case. It may well be that when you cut through all of the headlines and the showmanship and the chaos of Washington, the Supreme Court is in the midst of a true right to life deliberation before the status of the present nominee is decided.

Copyright (c) 2018 by Ted E. Huffman. I wrote this. If you would like to share it, please direct your friends to my web site. If you'd like permission to copy, please send me an email. Thanks!