“Well, fellow, who are you?” demands the Earl of Warwick of a character who appears on stage for the first time at the end of George Bernard Shaw’s play Saint Joan. “I,” huffs the man who has just burned Joan of Arc at the stake, “am not addressed as fellow, my lord. I am the Master Executioner of Rouen: It is a highly skilled mystery.”
In the more civilized times of the late Middle Ages, the art and science of putting people to death was indeed a highly skilled mystery, much like the manufacture of stained glass or the embalming of mummies, and both rulers and ruled took pride in the craftsmen whose profession it was to mete out torture and death to convicted criminals. Contrary to Hollywood myth, executioners seldom wore hoods or masks, for the simple reason that no one saw anything wrong, shameful, or disreputable in how they made their living. Indeed, whole families spawned generations of professional executioners (the Sanson family of France was the best known). The only occasion that I know of on which an executioner wore a mask was at the judicial murder of King Charles I of England in 1649, and both the headsman who wielded the ax and the more brutal killers who engineered the king’s decapitation had good reason to be both ashamed and afraid of what they were doing. But ordinarily, when real criminals and traitors mounted the scaffold, it occurred to no one to hide or try to minimize the supreme act of solemn justice that took place in a legal execution.
Today, however, executions are virtually state secrets, performed during the night at hidden locations deep within prison walls, witnessed only by a handful of journalists and other perverts who have enough clout with the governor to get a seat at the proceedings, and carried out not by men who take pride in what they do, but by nameless state troopers and prison guards forced to draw lots for the duty. Even these evasions aren’t enough: Executions themselves are now disguised as medical operations, planned to be as painless and unfrightening as possible, lest the poor little murderers and rapists who have to get a jolt of hot juice might be intimidated at the last minute. Some years ago, when the state of Texas pioneered lethal injection as a method of capital punishment, lawmakers tried to force prison doctors to carry it out. The doctors, to their credit, simply refused, citing the Hippocratic oath that forbids them to take human life and insisting that the state acknowledge that executions are not just somewhat more elaborate tonsillectomies.
In the last few months, however, even the nearly bloodless executions we still carry out have come under attack: from the United Nations and its army of “human rights” watchers; from the Pope, who helped spring a convicted murderer in Missouri a few years ago; and from “conservatives”—namely, Pat Robertson, George Will, and William F. Buckley, Jr., as well as the moderate Republican governor of Illinois, who has suspended further executions in his state until he can be certain that their guests of honor are really guilty. Mr. Buckley’s magazine. National Review, which still claims to be the major conservative journal of opinion in the country, ran a long article arguing against the death penalty in its June 19 issue. The article, by Carl M. Cannon, was subtitled “a conservative case against capital punishment,” although there was nothing conservative about Mr. Cannon’s argument. The same issue sported an editorial entitled “Thou shalt not fry,” which, as National Review editorials in recent years have often done, failed to tell the readers what to think about the matter. “Advances in forensic techniques ensure that wrongful convictions will continue to be exposed,” the editorial bleated. “This raises political, intellectual, and moral questions that conservatives must address.”
The “advances in forensic techniques” are, in fact, the major causes of all the reconsiderations of the death penalty by people who have been and ought still to be in favor of it. The possibility of DNA testing now allows the police and the courts to determine whether some defendants or convicts are really the same individuals who left their hair, blood, saliva, semen, or skin cells at a crime scene. In Illinois, for example, some 13 chaps condemned to death have been exonerated of their capital crimes during the past 23 years, though only in part because of DNA tests, and it was this fact that Governor Ryan, in January, used as justification for suspending further executions. “Until I can be sure that everyone sentenced to death in Illinois is truly guilty; until I can be sure, with moral certainty, that no innocent man or woman is facing a lethal injection, no one will meet that fate,” the governor intoned. And much the same sentiment seems to guide the thoughts of the other conservative gurus who have changed their minds or are entertaining doubts about the death penalty.
That also is the brunt of Mr. Cannon’s argument in National Review. Pointing to his experience in invalidating the convictions of condemned criminals, as well as to the 82 known cases of capital convictions since 1981 that have been “set aside for one reason or another” (not necessarily, be it noted, because innocence has been proved, though the author rather leaves the reader with that impression), Mr. Cannon insists that innocent people have certainly been executed and that “the right question to ask is . . . whether the government should be in the business of executing people convicted of murder knowing to a certainty that some of them are innocent.”
That, essentially, is also the argument advanced by Buckley, Robertson, and Will, and it is entirely without merit. Note, first of all, that Mr. Cannon claims to be arguing that a convict shouldn’t be executed unless we are certain he’s guilty, which is reasonable. But what he actually says in the sentence quoted above is that the state is executing people it is certain are innocent. Not only are the two claims quite different, but there is no evidence whatsoever that, in recent years, any innocent person has been executed (let alone that state authorities knew for a certainty he was innocent). Neither Mr. Cannon nor anyone else even claims that it’s so—except by inference. Because some people condemned to death in recent years have been shown to be innocent, therefore some people who were executed were also innocent. That may be true, but it doesn’t follow, and it hasn’t been established.
Moreover, if DNA testing proves innocence in some cases, in others it ought to prove guilt, an implication that blows the argument about “certainty” out of the water. The argument is that, as Governor Ryan says, until we “can be sure, with moral certainty,” that no innocent person is being executed, we should have no executions. But what if we are certain he is guilty? If the “conservative case against capital punishment” applies only to innocent people wrongly condemned to death, then it’s not an argument against capital punishment but an argument against executing innocent people, which no one questions.
As for “certainty” itself, the governor, Mr. Cannon, and some of the other critics invoke it casually. The fact is that “certainty,” in the sense they are using the word, is rarely available in contested criminal proceedings or any other human judgment. The standard in American courts of law is that guilt must be proved “beyond a reasonable doubt,” but that is not the “certainty” the critics demand. In Maryland this summer, liberal Democratic Gov. Parris Glendening commuted the death sentence of a man named Eugene Colvin-el, who was convicted of a 1980 murder in which his bloody fingerprint was found at the crime scene. The convict was also known to have pawned a pocket watch belonging to the victim. In commuting the sentence. Governor Glendening said, “I believe that Colvin-el committed this crime, but I do not have the same level of absolute certainty” as in other cases. If Colvin-el’s DNA had been found on the victim instead of his fingerprint, would that have established “certainty” for the governor? By this standard, you have to wonder how anyone can ever know anything. The standard of “certainty” collapses into epistemological nihilism.
Yet I venture to guess that if someone else’s fingerprint had been found at the crime scene, that would have been taken as certain proof of Colvin-el’s innocence. Mr. Cannon, as well as Governors Ryan and Glendening, seem to have no problem with “certainty” when it points to innocence and gets somebody off Death Row; it’s only when everyone else—police, prosecutors, judges, and juries —is certain of guilt that they invoke doubt.
In any case, it is not the business of a governor, in Illinois or Maryland, conservative or liberal, to second-guess the courts. The reason we have courts at all is to establish what Governors Ryan and Glendening insist on deciding for themselves. If the governors have good reason to believe condemned men have been wrongfully or unfairly convicted (through new evidence or reviews of trials and appeals), then commutations, reprieves, or pardons may be in order. But to overturn what the courts have already determined through due process simply because it doesn’t conform to the governors’ private whims is a usurpation of judicial authority.
Of course, innocent people may well have been executed. Mr. Cannon mentions the case of Bruno Hauptmann, executed in 1936 for the murder of the Lindbergh baby, and there is good reason to believe Hauptmann was railroaded to his death by the state of New Jersey (particularly by the head of the New Jersey state police at the time, a gentleman named Norman Schwarzkopf, father of the general glamorized in the Gulf War. Slaughtering innocent people may run in the family blood, much as killing criminals ran in the blood of the Sanson clan). As Mr. Cannon acknowledges, errors happen, and sometimes, as we all know from the novels of Raymond Chandler and James Ellroy, the cops or prosecutors pick a guy for the fall simply because he looks good for it, not because there’s any real evidence.
But these are not flaws of the system of punishment. They are, at most, flaws of the law-enforcement and judicial systems or of human nature itself, and if government is going to be halted by them, it’s not clear what it can do. If the criminal justice system is convicting innocent people, should it impose any punishment at all? Mr. Gannon speaks of the waste experienced by wrongfully convicted men “released after years on Death Row with a pardon or a half-hearted apology by the state and, if they are lucky, an inadequate monetary settlement.” Of course, the same could be said of innocent men sentenced to life imprisonment. Given the critics’ certainty of uncertainty, it’s hard to see how you could cross the street without being smacked by a truck.
None of the arguments against capital punishment mounted by conservatives in recent months is very new, and none is particularly compelling. No matter how advanced forensic techniques become, there is always going to be an element of uncertainty in some cases, perhaps in all cases, just as there always has been. What the new conservative “case against capital punishment” really proves is not the injustice or inexpediency of the death penalty, but the disintegration of the conservative mind and its digestion by the omnivorous mentality’ of the left, to the point that it is no longer distinguishable from the latter.
“The age is running mad after innovation,” Samuel Johnson remarked to Sir William Scott when he learned that the procession of condemned prisoners from Newgate jail to Tyburn tree was to be abolished, “and all the business of the world is to be done in a new way; men are to be hanged in a new way; Tyburn itself is not safe from the fur}’ of innovation.” Dr. Johnson was not a cruel man, and it’s doubtful he took any pleasure in the executions that served as spectator sport in the England of his time, but he saw in the abolition of the procession of the damned an ominous symbol of what was coming: a creeping uncertainty about good and evil, right and wrong, justice and injustice, and reward and punishment that at first infected only those of his own contemporaries v’ho were most furious for innovation, but which eventually would spread to those who are supposed to be immune to it. The consequence of the collapse of moral certainty is an unwillingness to assert moral authority of any kind or to back it up by the use of force, whether it involves merely the spanking of children or the highly skilled mystery of executing criminals, and the collapse and its consequences have been evident in the mentality of the left ever since Dr. Johnson’s day, to the point that they now threaten the survival of civilization itself What the “conservative” case against capital punishment shows is that the collapse is no longer confined to the mind of the left but has captured a major beachhead within the mind of the right as well. That capture confirms, once again, that the right, as it has been known for the last half century, no longer exists except as an appendage of the left, and that it can no longer serve as a useful instrument of resistance to leftist demands.