Who Will Swing the Blade?

In a dissenting opinion, U.S. 9th Circuit Court Chief Judge Alex Kozinski recently wrote, “If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf." After musing about the reliability and effectiveness of the guillotine, he added, "If we as a society cannot stomach the splatter from an execution carried out by a firing squad, then we shouldn’t be carrying out executions at all."

After several torturously botched lethal injections made the news, Americans have been talking about the death penalty again. Kozinski’s call for firing squads will get a “Damn right!” response from couch-riding cowboys everywhere.

There’s something Johnny Cash about a good old fashioned firing squad or a hanging. And Kozinski is probably right -- a firing squad would be quicker, surer and at the same time remind the public that the state is killing on their behalf, and not just “putting someone to sleep” like a benevolent bureaucracy of merciful veterinarians.

I don’t object to the idea of men killing other men, especially if they’re doing it to protect their loved ones or weaker members of their tribe from harm. Violence is golden. If you aren’t willing to use violence to show that you mean business, you deserve to be ruled by a group of men who will. Laws are meaningless without the threat of violence, up to and including murder, and when the police “escort” a criminal to jail, he only goes because they are threatening to murder him if he doesn’t. When it comes right down to it, everyone in prison is being threatened with murder, every day. When the state puts a man to death, it is only because he decided to go to court and wait to be murdered on schedule instead of making a run for it and being gunned down in the street. For some reason, we don’t call that “execution,” and there are only protesters, riots, looting, and moral showboating when the color combination of cops and executed civilians can be whipped up by media race hustlers into something beyond nervous cops going Judge Dredd on uncooperative suspects.

Two things do bother me about state executions, and state violence generally.

The first is the legitimacy of state “justice.”

America has the largest per capita prison population in the world. Some of it is even run for profit, which obviously incentivizes incarceration and gets palms greased in some way at every level. Prosecutors advance their careers by demonstrating high conviction rates. Prosecutorial misconduct has been described even by the New York Times as “rampant” and studies have shown that misconduct is almost never punished -- even when the accused are later exonerated in part or wholly because the prosecutors had been caught lying or withholding important information from defense lawyers. Harsh mandatory sentences mean plea deals have become the norm in most places, with the accused confessing to crimes they may or may not have committed simply because they know that if they lose a trial they’ll be locked away for decades. Losing or winning a trial may well come down to how good of a defense you can afford -- or how much the prosecution is willing to lie or manipulate evidence to get a conviction.

“Justice” may have nothing to do with it.

It’s not that justice never happens, that police never catch true “bad guys,” or that people whose actions are absolutely impossible to defend -- serial rapists and psychopaths -- aren’t better off behind bars or dead.

It’s just that in America’s increasingly byzantine and often arbitrary system of laws, hundreds of thousands of people who aren’t serial rapists or murderers -- perpetrators of victimless crimes who aren’t any worse than the rest of us -- often end up in jail with them. Supposedly, 86% of the people doing time in Federal prisons are there for victimless crimes.

It’s easy to say, “let’s get tough on criminals,” but as one author wrote, the average person commits “three felonies a day.” People aren’t necessarily going to jail for being “bad people,” so much that they are going to jail for being in the wrong place at the wrong time.

It’s like we’re on the old Spartan agoge system where you’re expected to steal, but beaten for getting caught.

All those times you were speeding but didn’t get a ticket, the time you drove after two drinks instead of one, that season of Game of Thrones you torrented, the income you didn’t report, the girl who agreed that you didn’t “rape” her after her hangover wore off, the fistfight no one prosecuted, that illegal drug you bought in college, that time you did something you were supposed to have a license to do even though you didn’t know it. Maybe you did something I didn’t list, but you know what you did. You’re guilty. You could have been prosecuted and possibly convicted as a felon, but you weren’t. Because you were lucky. Because you didn’t get caught.

You’re a “free range” criminal. For now.

Sure, none of those things are death penalty offenses. But the fact that everyone is breaking laws every single day while people are being selectively prosecuted and punished by “luck of the draw” because there are so many petty laws and no way to punish everyone undermines the credibility of the whole system. And, if you got snatched up by the kiddie claw crane of the police state and found yourself doing a 10-15 year stretch in a prison run by gangs, maybe you’d end up a murderer, too.

Encouraging formal state execution assumes that the American legal system is credible, just, and expresses the will of the American people. Americans are no longer a “people,” but a sprawling population of different people with different races, cultures, and values inhabiting an oversized economic territory. America’s legal system is, at least generally speaking, broken and corrupt from street cop to senator. Cheerleading for formal state executions under these circumstances is lunacy. The “sanctity of life” has nothing to do with it. The American government simply does not deserve that kind of trust. It has the physical authority to do what it wants because it has the largest, most well-armed and well-coordinated group of enforcers within its territory, but I’m certainly not going to give it my mandate, allegiance or moral blessing.

Speaking of cheerleading and madness, mulling over the idea of state execution got me thinking about proxy violence in general.

It’s a little perverse, isn’t it?

Again, not because violence itself is perverse. I can’t think of anything that seems more just or natural than, say, a father killing -- even torturing -- a man who molested or murdered his child. And, if he’s not physically able to do it, asking a good man with a talent for violence to act in his place seems reasonable. A coalition of men acting together to right some injustice and enforce tribal order -- that sounds healthy and right.

But people demanding the blood of strangers? It’s vulgar, low, and weak. Civilized in the worst possible way, like picnicking at a beheading or showing up early to see someone disemboweled at the coliseum. Saying “we ought to be tough on crime” isn’t the same as doing the dirty work yourself. It doesn’t make you a tough guy. It’s like yelling at quarterbacks on TV, only in this case it’s yelling at miserable low-level government functionaries to push the button. It’s vicarious bloodlust.

“Get him! Kill him! Yeah, you show him!”

I agree with Kozinski that if people can’t stomach the bloody reality of what they are doing, then they shouldn’t be demanding it or supporting it. 

If they televised executions, though, I wonder how many people would develop a taste for it. It’s happened before, and while they are often denied even the real-life violence of a schoolyard fistfight, Americans love vicarious violence in entertainment. It’s the only violence they’re allowed. As they progressively relinquish power over their own lives, this illusory power by proxy may seem even more attractive, and their handlers may see it as a cheap circus. Dystopian novels and movies come to mind. Death Race 2000. Running Man.

When it comes to tribally authorized execution, I prefer the Ned Stark way.

Not the people passing it off to some jury of “peers” -- who somehow have nothing to do for weeks on end -- recommending it to some fat, self-righteous gavel-banger who passes it off to some corrections officer.

No, “The man who passes the sentence should swing the sword.”

It’s not exactly practical, but ways that seem right are rarely practical in the mess of modernity.