The Death of Choice
You look at them on the screen, these two avatars: one a woman who helped spearhead Amnesty International's nearly successful campaign to halt the recent execution of Troy Davis and the other a representative of Criminal Justice, both speaking with such grim assurance from their respective moral poles. One says the Davis case shows the colossal misuse of justice and that statistics, showing that sixty-four percent of Americans support the penalty, are misleading, given that pollsters do not offer full array of possible punishment. Meanwhile, the pro-penalty man opines that the Davis case traveled through many courts and that jurors and judges could have chosen to see the facts differently at many points, and that Davis made his own choices.
As many have wondered, could the Davis case, which promises to become a byword in all discussions of justice, be boiled down to whatever preconceptions jurors or judges might assign to its basic situation: a black man, a white cop killed?
Which leads to the question: had the policeman been black, would the outcome of the case been different? As Stuart Banner states in his excellent 2002 book The Death Penalty: "In state after state econometric studies disclosed a pronounced bias based on the race not of the defendant but of the victim," and happens to note that the most extensive study, in Georgia, showed that if all other variables are equal, a death sentence is 4.3 times more likely when the victim is white. And also: "By the 1990s, it was clear to lawyers practicing in the field that the major determinants of who lived and who died were not the statutory aggravating and mitigating circumstances" but rather "whether the prosecutor was up for reeelection, whether the county had enough left in the year's budget for an expensive capital trial, whether the local newspapers were publicizing the case, whether the victim's family members whanted the prosecutor to seek death . . . whether the defense lawyer was sophisticated enough to badger the prosecutor with pretrial motions, and a host of other factors that could be found in no statute."
What is it about the death penalty that excites such controversy in its mesmerized populace? We, if we are Republicans, tend to condone choice when choice refers to bringing ourselves up by the bootstraps, anti-affirmative action strategy, charter schools. We, if we are Democrats, condone choice when it refers to pregnancy, economic opportunity, involvement in war. If the oddity of these items being combined in a list is apparent, we can ascribe authorship to our confusion to the heterogeneity of our society: we like to think of ourselves as a veritable Food Circus of choice, a buffet of options in lifestyle, and our confusion about choice creates cases like this most recent one.
Given that so many questions will never be laid to rest, consider some of the weirder facts around death penalty, a retribution that, statistics show has not acted as a deterrent against violent crime: death penalty support is loudest in states with the deepest history of vigilante justice. Changes toward more sanitized technique have often been greeted with morbid outcry. When electrocution was being considered over hanging, one critic said: "Menlo Park wizards and electricians . .. would wantonly rob society of whatever deterring influence may repose" in the death penalty. Amnesty International employees working on death penalty oftten make a practice of hiding their last names in order to avoid death threats from those who profess the greatest faith in the intelligence of our legal system. Let us leave aside, for the moment, Texas' decision this week to forego the practice of the last meal and consider the meal itself instead as a metaphor. Years ago, an inmate with severe mental retardation asked if half of his own last meal could be wrapped and saved for later. In some similar respect, we too, a nation ranked as the last of superpowers to condone such punishment, seem to hide from ourselves an understanding of the future outcome of our contemporary moral reasoning on choice and its consequences.
Causes Edie Meidav Supports
Heifer International, Kiva, 826 Valencia