Cruel and Usual

1.

The death penalty was already falling into disuse in the United States when the Supreme Court ended it in 1972. There had been no executions for five years. Death houses were still filled with candidates, but the old zest for sending convicts to the gallows, the chair, and the gas chamber seemed to have waned. State governors, whose duties include the macabre obligation to sign death warrants, were increasingly finding reasons to commute capital sentences to life imprisonment or to grant extended delays of execution. What Justice Harry Blackmun called the “machinery of death” had come to a slow idle.

Then something happened. By the middle of the 1970s there was a rising public clamor for capital punishment. Politicians were discovering that pledges to be “tough on crime” worked like catnip on voters, and who could be “tougher” than the candidate howling for the death penalty? Mr. Dooley was not joking when he said the Supreme Court follows the election returns; by 1976 it had decided that capital punishment was not “cruel and unusual” after all; executioners came back to work.

Nowadays American devotion to capital punishment is such that only the most foolhardy governor would dare confess that signing a death warrant doesn’t make him sleep better. Periodically congressmen call attention to their “toughness” by discovering more federal crimes that require capital punishment. Periodically politicians denounce the entire legal system for making it hard to clear out the death houses with dispatch. Recently a Missouri man nominated for a federal judgeship was blocked by his state’s Republican senator, John Ashcroft, because of a “poor record on the death penalty.”

Professor McFeely, the biographer of Frederick Douglass and General Grant, found himself performing in this Grand Guignol when he was asked to testify in the Georgia sentencing trial of a man convicted of kidnapping, rape, and murder. A distinguished historian, McFeely had been opposed to the death penalty on philosophical grounds, but “proximity” to a man very likely to die in the electric chair seems to have produced an emotional loathing for it.

His short book is a tribute to the Southern Center for Human Rights, a small band of lawyers based in Atlanta, and especially to Stephen Bright, who is not their leader but the “first among equals.” Their goal is to save clients from “the ultimate expression of violence,” which, in McFeely’s phrase, is “the state killing its own people.” Because of work like theirs, years often elapse nowadays before a court’s sentence of death is carried out. The average time between conviction and execution in Georgia is over eight years. One of the center’s clients whom McFeely met was still in prison eighteen years after being sentenced, and his case still in court on appeal.

Bright and his colleagues are people whom the steamier proponents of capital punishment love to hate: lawyers who use what Senator Orrin Hatch calls “frivolous appeals” to impede swift exaction of the state’s “awful vengeance.” Why do they do it? Not for money. No one in the group is paid more than $23,000 a year. And few jobs can be grimmer; this one often ends with a lawyer attending his client’s execution.

McFeely finds the answer in a courtroom confrontation between Stephen Bright, arguing for the life of one Carzell Moore, and Tommy K. Floyd, a district attorney, arguing for Moore’s execution:

They stand as exemplars of two fundamentally different philosophical positions on the death penalty. Bright and Floyd guard gates—of different cities.

Carzell Moore has been convicted for an act so terrible that neither guardian would lightly allow this man the freedom of his city’s streets. One, to sustain the city, would use the law’s authority to banish from life a being no longer within his concept of human; the other would claim that no person is ever wholly outside the city’s wall. Though Moore has raped and murdered—has sacked his own city—he is, to Stephen Bright, still of its people. For the authorities of that city, for its citizens, to match his act of killing with a killing, to deny even him life, is for the city to lose its very civility.

Here is the debate in its classic terms: Is the death penalty essential to preserve a civilized society, or is it a relic of barbarity mocking society’s claim to be civilized? Bright’s group acts on the principle that no crime, no matter how monstrous, can justify a civilized people in killing its perpetrator. It is a lonely position these days. McFeely concludes that Justice Antonin Scalia came closer to speaking the popular mind when he “forthrightly advocated retribution as a proper motivation for the death penalty.”

This enthusiasm for capital punishment is not easily explained. It flourishes at a moment when most other industrial nations have turned against it. Today it is either abolished or in disuse throughout Western Europe, in most of the former Eastern European Communist bloc countries, and in Russia. Israel, since its founding, has used it only once, with the hanging of Adolf Eichmann. The modern industrial world seems to have abandoned it out of some embarrassed sense that it is a barbaric vestige of an archaic culture. Professor McFeely is hard pressed to explain why the United States, “with its claim to moral leadership of the world,” has gone in precisely the opposite direction. Our “vigorous use of the death penalty,” he notes, puts us “in company with Iran, Iraq, the United Arab Emirates, and Yemen.”

He examines several theories about why Americans are now so fond of it. One holds that the United States is so singularly infested with criminals that an exasperated public demands Draconian measures for self-protection. This appetite is whetted by local television news shows saturated with crime stories and by the spectacular nature of terrorist crimes like the bombings of Oklahoma City’s federal office building and New York’s World Trade Center.

There is great political mileage to be had from exploiting these public passions; hence the politicians’ incessant campaign promises to be “tough on crime.” Hence when elected they vote for ever “tougher” punishments: long-term imprisonment for minor drug offenders, life sentences for bad apples with several felony convictions, and application of the death penalty to a wider variety of crimes.

The underlying assumption of this theory is that a testy public must be humored by aggressive use of the death penalty. The problem with this theory is that it presumes a degree of brutality in the public spirit that seems inconsistent with the present increase in America’s Christian churchgoing population. Puzzling about this contradiction, McFeely wanders into the theological bogs, borrowing from a theory about lynchings which was formulated by Donald D. Matthews, a historian of American religion. Why, Matthews wondered, had religion and lynching “waxed” simultaneously in the South of the 1890s? Perhaps it was because the Christianity then popular in the South devalued a compassionate New Testament God in favor of the “stern and inscrutable God of Israel.” Christ had to suffer death on the cross to provide atonement for the original sin of which all humanity was guilty. And so, “at the heart of salvation,” Matthews writes, “were the metaphors of retributive justice: at the center was a symbol of torture and death.”

Then, McFeely: “So imbued with this belief system were some adherents of lynching—and now executions—that for them, only with a killing can we atone for the sins of the society or one of its worst miscreants.” This may be a theory that only a theologian can love, but at least it offers a pious rationale for what many now consider an unholy policy.

Other theories are more profane. One argues that the enthusiasm for executions expresses the hardiness of undying American racism, for a high proportion of the condemned are black. Another suggests it is part of the conservative reaction against the tolerant culture of the late Sixties and early Seventies. Many a small-bore Jeremiah now blames those years for creating such rot in the nation’s moral code that our very survival is at risk. Which brings us back again to the old dispute about who holds the high moral ground in this endless debate.

When he was solicitor general arguing before the Supreme Court for restoration of the death penalty, Robert Bork said the state could legitimately “conclude that capital punishment serves a vital social function as society’s expression of moral outrage.” A “venting of outrage at the violation of society’s most important rules,” he argued, “is itself an important, perhaps a necessary, social function….” McFeely prefers the opposed view of what is moral, represented by Justice Thurgood Marshall, who held that it was the death penalty itself that violated society’s rules.

The ascendancy of the New Democrats under Bill Clinton cannot be ignored. This group realized that Democrats had to combat the Republicans’ claim to be the “tough-on-crime” party by matching them in “toughness.” To illustrate that he was leading a “tough-on-crime” party, Candidate Clinton interrupted his 1992 campaign, returned to Little Rock, and did his gubernatorial duty by signing a death warrant for a mentally defective man.

Democratic Governor Bob Graham of Florida was put to the test by the sentencing of John Spenkelink, the first man condemned in Florida after the Supreme Court restored capital punishment in 1976. McFeely describes immense pressure on Graham to be merciful. He had once been opposed to the death penalty.

Though said to be agonizing over a grant of clemency, the governor, as one of the new breed of southern Democrats with reconstructed racial views, thought it essential to balance that stance with a toughness on crime. To hold him fast to that resolve, Graham’s fellow young governor, Bill Clinton of Arkansas, called with legal advice, lest Graham make a mistake and jeopardize the restoration of the death penalty in other states.

Spenkelink was electrocuted, and Florida now stands second only to Texas in the number of people put to death by a single state.

2.

For all the fervor among death-penalty adherents, they are curiously squeamish about how the thing is to be done. The present session of the Supreme Court has agreed to consider whether Florida’s notoriously troublesome electric chair is exacting “cruel and unusual” punishment with performances The New York Times has delicately called “messy.” No one expects the present Court to enlarge the case by considering whether execution itself amounts to cruel and unusual punishment. If the Court puts the chair out of business, Florida is ready to shift to death by lethal injection. Putting people to death is not the issue; the issue is how to put them to death neatly.

This is a matter that has troubled societies throughout history. The Roman historian Livy, writing during the golden Augustan Age, was still appalled by the way one Mettius Fufetius had been executed six-and-a-half centuries earlier, about 670 BC. Mettius was tied, spread-eagled, between two chariots, each drawn by four horses. “At a touch of the whip the two teams sprang forward in opposite directions, carrying with them the fragments of the mangled body still held by the ropes. All eyes were averted from the disgusting spectacle.”

This technique obviously offends Livy’s Roman pride. He seems to think it so revolting that Romans will be ashamed to read of it, for he hastens to reassure them:

That was the first and last time that fellow-countrymen of ours inflicted a punishment so utterly without regard to the laws of humanity. Save for that one instance we can fairly claim to have been content with more humane forms of punishment than any other nation.

Well, this may be doubtful, but how modern of him to disapprove of “messy” executions. Like our Supreme Court pondering Florida’s electric chair, he is concerned not with morality but with technology.

Many cultures have exulted in the messiness with which executions could be done and tried to make them ever more dreadful, as though the death agony should match the gravity of the crime. In England during Tudor and Stuart times, people guilty of treason might be publicly hanged, drawn, and quartered. Condemned people of high breeding might be let off with a private beheading in the Tower of London.

Dreadful public executions were doubtless intended to deter crime by showing the masses how unpleasant its consequences could be, but the public seems to have flocked to them more for thrills than for edification. The tireless seducer Giovanni Giacomo Casanova tells of a woman looking down from an open window who allowed him to have his way with her while she watched an especially nasty execution in a public square.

Within the present century, hangings in America were often conducted in a circus atmosphere. In his days as a police reporter, H.L. Mencken attended an assortment of them in Maryland’s county jailhouse yards. His first, in 1899, was “a hanging of the very first chop” since four men were to be “stretched at once.” Several witnesses and reporters were “wobbling” drunk before the event began, and a half-dozen “fell in swoons, and had to be evacuated by the cops.” On one occasion, Mencken reports, a giant of a man

fought Joe [the hangman] and the sheriff on the scaffold, knocked out the county cops who came to their aid, leaped down into the bellowing crowd, broke out of the jail yard, and took to an adjacent forest. It was an hour or more before he was run down and brought back. By that time all the fight had oozed out of him, and Joe and the sheriff turned him off with quiet elegance.

By 1947, when I came to Maryland journalism, the era of circus at the scaffold had ended, though I met a few old cops who talked nostalgically of it. The trend in execution was toward something that might be loosely called dignity, although in Maryland it also seemed that everybody thought something shameful was being done. The hangings were done at midnight in a small white-walled brick chamber at the state penitentiary in Baltimore. The atmosphere was unrelievedly grim. The number of witnesses was limited and whiskey forbidden. I had the good fortune never to attend one. A newspaper colleague relieved me of the assignment. He saw three men dropped through the trap and was sick for days.

Nowadays it is common for demonstrators to gather outside the prison as a convict’s final hours are counted down. This produces the only remnant of the theater of execution that once titillated crowds and gave the condemned a chance, perhaps for the first time in his life, to address a large audience. Professor McFeely conveys the mood of these modern demonstrations, using testimony about Georgia’s execution of Roosevelt Green.

The demonstration area was divided into sections, one for the press, one for Ku Klux Klan members, and one for people opposing the death penalty. Klan members wore traditional robes and held signs. The witness recalls that “most of the signs were jingles that said something like, ‘Now he’s going to burn, now he’s going to fry, now he’s going to shake, now he’s going to die,’ that sort of thing.” Their mood was “angry, hostile, and eventually celebrative.”

Another witness had brought his wife and teenage children for the occasion. He remembered “some celebrating” after the crowd heard the execution had taken place. “When they brought the hearse out, I remember the crowd jumping up and down and celebrating.”

Edward Stephens, a former Grand Dragon of the Georgia Klan, didn’t remember Green’s execution “standing out over and above the other seven or eight executions that I’ve went down there in support of the death penalty on….”

Stephens’s reaction to news of any execution was “joyful relief that it’s another burden off the taxpayer’s back.” Opponents of the death penalty, he went on, “stand around and hold candles and cry because a person has just been executed. But they don’t think anything of the victims. We rejoice that the person that has created the crime, that has taken a person’s life and extinguished it like a cigarette butt has been put to rest, and hopefully sent to where’s he’s supposed to be, no matter what color he is.”