Works In Progress - February 2006 - Our Time Honored Tradition Of Death

It may be a surprise to most Americans, but the individual whose ideas on justice and law shaped the more libertarian aspects of the American constitution was not Benjamin Franklin, James Madison, or Thomas Jefferson. The individual was not even an American or part of the American revolution. Many of the concepts outlined and explored in the Bill of Rights have their home in the mind of the quiet Italian judicial philosopher Cesare Becaria. Becaria's classic work Of Crimes and Punishment was considered the Enlightenment's response to the draconian judicial systems on the European monarchies. Many of the ideas and reforms that Becaria advocated for, including trial by jury of one's peers, prohibition on cruel and unusual punishment, and speedy and public trials, became (at least in theory) the foundations for the emerging American justice system.

Ironically, the reform that Becaria spent the most attention on in Of Crimes and Punishment, the abolishment of the death penalty, was not taken up by the founding fathers. Becaria was particularly disgusted with state sanctioned murder -- which he considered to be "a war of the nation against a citizen." He thought it "absurd that the laws, which are the expression of the public will, which detest and punish murder, should themselves commit murder; and to deter citizens from killing, should ordain killing in public." In America, where many praised his work, these cries against the death penalty were ignored.

Ever since that time, with a ten year exception when the death penalty was briefly outlawed by the Supreme Court, the United States has continued with its time honored tradition of death with horrendous results. No empirical evidence has demonstrated that the death penalty decreases crime, while a growing body of work reveals that the death penalty is infested with examples of inequality and the murder of innocent people. The United States continues to be isolated from its industrial counterparts on this issue. Every other industrialized nation in the world has abolished the death penalty. The United States on the other hand, with China, Vietnam, and Iran, helps make up 97% of the people executed world wide.

This scenario creates intense contradictions between what is valued and what is actually done, and these contradictions have inspired a growing movement of people who want to stop the "war of the nation against a citizen." Most recently, the anti-death penalty movement has been galvanized by two executions of particularly egregious character. The first is Kenneth Boyd. Boyd's case received national attention because he was the 1,000th person executed since the Supreme Court re-legalized the death penalty in 1976. Thomas Maher, Boyd's lawyer, had this to say immediately after Boyd's execution: "The execution of Kenneth Boyd has not made this a better or safer world. If this 1,000th execution is a milestone, it's a milestone we should all be ashamed of."

The next case is the execution of Stanley "Tookie" Williams. Williams was the founder of the Crip street gang. He was convicted of four homicides in 1981. While incarcerated, he went through a radical spiritual and political transformation. He renounced violence and dedicated his life to ending gang warfare. His efforts resulted in a peace treaty between the Crips and Bloods, and he was nominated for the nobel peace prize five times. The evidence that he was convicted on was flimsy, and a growing body of new evidence and testimony strongly pointed towards his innocence. In addition, his lawyers brought up several examples of racial stereotyping by the prosecution during the trial. Despite these issues and supports for Williams clemency from thousands of people throughout the world, Governor Arnold Schwarzenegger refused to stay his execution.

The murder of these two people, especially Stanely "Tookie" Williams, have done nothing to deter violent crimes in our society. If anything, they have increased the likelihood of violence by teaching the lesson that "might makes right."

The death penalty is cruel by its nature and it has become a symbol of the cruelty which exists throughout our entire system. American correctional facilities are a whitewash of justice. African-Americans make-up 15% of the national population, and 40% on the federal prison population. Forty percent of the people incarcerated at the federal level are there for non-violent drug offenses. Mandatory sentencing and three strike laws tie the hands of judges and encourage harsh and irrational sentences. Many prisons and jails are ill equipped to deal with growing medical needs. This has lead to epidemics of HIV/AIDS and hepatitis, and these viruses eventually make their way back outside. The constant construction of new prisons is costing this nation billions, and shattering rural and urban communities. The mixture between illogical rules and willful neglect by prison officials makes a mockery of human rights. If it was possible to apply international standards to the United States, it is likely that many of its correctional facilities would be guilty of several crimes against humanity. On top of all this is the death penalty -- the peak of a horrendous mountain. It is worth noting that Cesare Becaria was not only against the death penalty, he was also suspicious of incarceration: He wrote in Of Crimes and Punishment: "History shows that places of asylum are the source of great revolutions, both in states and in opinions of mankind."

To move forward as a society we are going to have to accept that our conventional notions of justice are wrong, and open our ears to more intelligent and compassionate voices. We must break with our time-honored tradition of death, and form a new tradition which seeks to heal the hurt of crime by restoring peace to the victim rather than punishing the criminal. If we don't, then we will be doubly doomed. In the end, every society always gets the criminals - and the government - it asks for.