Cruel and Unusual: A President’s ‘Pardon’ as Dark Parody

Opinionator – A Gathering of Opinion From Around the Web
November 20, 2011, 5:00 pm

By JUSTIN E. H. SMITH

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In just a few days, we will once again endure the annual spectacle of
the president of the United States  pardoning a turkey that would
otherwise have been fated for the Thanksgiving table. This event is
typically covered in the media as a light-hearted bit of fluff — and
fluff is what it might well be, if there were not actual humans on
death row awaiting similar intervention. In the current American
context, however, the turkey pardon is a distasteful parody of the
strange power vested in politicians to decide the earthly fates of
death-row prisoners. There is in it an implicit acknowledgment that
the killing of these prisoners is a practice that bears real,
non-jocular comparison to the ritual slaughter of birds for feasts.

You can tell what a nation is like by the way it treats its turkeys.

I am not saying that this slaughter of birds for food is wrong — not
here anyway — but only that the parallel the presidential ritual
invites us to notice is revealing. To riff on Dostoyevsky’s famous
line about prisoners: you can tell what a nation is like by the way it
treats its turkeys. Obama’s pardoning of one randomly selected bird at
Thanksgiving not only carries with it an implicit validation of the
slaughtering of millions of other turkeys. It also involves an
implicit validation of the parallel practice for human beings, in
which the occasional death-row inmate is pardoned, or given a stay by
the hidden reasoning of an increasingly capricious Supreme Court, even
as the majority of condemned prisoners are not so lucky. In this
respect, the Thanksgiving pardon is an acknowledgment of the
arbitrariness of the system of capital punishment.

Arbitrariness is generally treated, both by supporters and detractors
of the death penalty, as a mere glitch in the system, as something
that could in principle be worked out. But what this understanding
misses is the historical fact that, until very recently, capital
punishment was explicitly arbitrary, and openly cruel: its principal
reason for being was to set an example of the infinite power of the
state over the lives of its subjects.

It is thus not surprising that in most of the Western world, capital
punishment died away, though usually only gradually, along with the
decline of absolutism and the shift to democracy. When a person is
executed, a message is sent about what the state may legitimately do
to its subjects, and it is a message that has proven difficult to make
fit with other basic commitments of a political culture that rejects
arbitrary absolutism and favors human dignity and human rights.
Leif Parsons

In many countries, including Britain and France, the last vestiges of
capital punishment survived for rare cases of treason alone: a fact
which highlights the fundamentally political character of the death
penalty. The rest of the Western world eradicated capital punishment
by the late 20th century, even for treason, while somehow it managed
to survive in the United States. Curiously, though, it has survived
alongside a redoubled dedication to upholding the constitutional ban
on “cruel and unusual punishment.”

There has of course been a great deal of controversy over what this
phrase means, and whether any imposition of the death penalty is by
definition a violation of the ban. Yet in the United States, debates
about what constitutes cruelty and unusualness tend to focus on the
particular methods of execution, whether it be by firing squad,
electrocution or lethal injection. This focus is what has been in part
responsible for the continual migration from one method of execution
to another: each new method, starting with the guillotine in the
French Revolution (perhaps the most vivid, if short-lived, instance of
the gross discrepancy between democratic and egalitarian ideals, on
the one hand, and state terror on the other), has been introduced as
an unprecedently humane way of carrying the punishment out.

With time, though, methods that were once hailed as innovative and
humane end up faring no better than their predecessors, and one can’t
help but sense that the continual migration from one form of killing
to another has to do not so much with real progress toward greater
humanity, as with the ultimately groundless whim of fashion.

We are seeking to retain capital punishment in a system that has
already done away with corporal punishment.

We look at firing squads as barbaric, not because we have any solid
reasons for believing that lethal injection is more gentle, but only
because they remind us of the past, and we believe as an article of
faith that in the past people were less enlightened than we are. One
death-row inmate in Utah, Ronnie Lee Gardner, illustrated this point
in 2010 with a request to be executed by firing squad in one of the
few states in which this was, until recently, still possible, and in
which prisoners are free to choose the method of their death. Gardner
apparently selected this method out of a simple personal preference,
but he sent the state, and the country, into a terrible fit over what
to do. Many people assumed that he must simply have been stalling, or
that he was seeking to draw attention to his case. Yet few stopped to
ask in what respect death by rifle is really more horrible than death
by chemicals.

What all the migrations from one method to another have consistently
missed is that it might not be the method of killing that is cruel and
unusual, but rather, so to speak, the existential consequence of the
method’s deployment: the fact that it results in a loss of life at the
hands of the state. This focus on methods, rather than on what the
methods bring about, makes it appear as though the subtraction of a
life is not in principle cruel and unusual, even if it has proven
impossible so far to find a way of bringing about the subtraction of a
life that is not cruel and unusual. If one pauses to think about it
for just a moment, this quest quickly shows its absurdity: we are in
effect seeking to retain capital punishment in a justice system that
has already done away with corporal punishment.

In such an odd — and unprecedented — state of affairs, the only way we
could really live up to the prohibition without abandoning the
practice in conflict with it would be to somehow subtract souls from
existence without having to work through the bodies these souls
inhabit. But that can’t work: capital punishment is not categorically
different from corporal punishment, but rather a limit case of it.
There is no way to have the one without the other, and arguing over
the relative comfort of the method of execution employed, acting as if
in executing a person one is doing no harm to his body (even going so
far as to swab the prisoner’s arm with rubbing alcohol before
injecting the chemical solution that will kill him moments later) is
nothing but a pseudohumanitarian farce.

In the confusion of the post-9/11 era, the lawyer Alan Dershowitz was
enabled to emit a horrible proposal: that the government should start
issuing “torture warrants” to federal agents who find themselves in
situations in which they could, by getting cruelly and unusually
rough, extract information that might save the lives of hundreds or
thousands of people. The most lucid objectors to this proposal noted
that although agents might very well find themselves in such a
situation — and although, perhaps, when they do they should perhaps
just go ahead and start torturing — what we absolutely do not want is
to enshrine into law the possibility of suspending what are otherwise
our deep moral commitments.
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Similarly, we may acknowledge that some people almost certainly do
deserve to die. But for better or for worse, there simply is no person
or body that can be entrusted with the grave responsibility of killing
them. One of the strongest arguments against capital punishment, in my
view, has not to do with its effect upon the criminal who is punished,
but with what it does to those involved in the application of the
punishment.

In Gardner’s case, one of the five executioners was given blanks to
fire, without any of the squad members knowing which of them this was.
In this way responsibility for the execution was diffused, so as to
ensure that no one member of the firing squad would, with certainty,
be tainted by it. This diffusion was also an implicit acknowledgment
that to participate in an execution is to risk being tainted.

Execution cannot be fully normalized or proceduralized, and the
attempt to do so is in a certain respect more terrifying than the
murder to which it is a response: the murder was plainly a
transgression, whereas the compensatory execution is allowed for in
our books of law, as the culmination of normal procedure-following.
The death penalty makes it possible for killing to be encompassed
within the normal carrying out of a bureaucratic procedure, rather
than remaining a transgression or a suspension of our ordinary
commitments. To uphold capital punishment is therefore to make killing
itself normal: something that it is not even for the great majority of
murderers.

Killing is, in short, cruel and unusual, and this is why murderers are
rightly despised. This is also why capital punishment fits so well as
part of the system of justice of absolutist states, but cannot, and
never will, have an uncontested place in a democracy.
Justin E. H. Smith

Justin E. H. Smith teaches philosophy at Concordia University in
Montreal. His most recent book is “Divine Machines: Leibniz and the
Sciences of Life.” He is a contributing editor of Cabinet Magazine,
and writes regularly on his blog.