Mind of an Outlaw (52 page)

I HATE THE QUESTION
. It confuses me. Every time I am obliged to give an opinion whether capital punishment should or should not be abolished, I say something different. Once I was on
The Phil Donahue Show
trying to sell copies of my book
The Executioner’s Song
. It’s a poor way for a grown man to live, perched on a stage full of pale orange and pale blue plastic furniture, hot lights up, your stomach rumbling. There you are, trying to vend your creation. It behooves you to know on such occasions what you are talking about.

When my host asked about the death penalty, I
phumphered
. “I’m not for it,” I allowed, “but I’m not against it, altogether, either. I think we need a little capital punishment.”

Donahue said, “I don’t understand how a little bit of shooting people and dropping cyanide tablets is good for us.”

“Well,” I replied, “I get mystical on this … I don’t have a clear answer.”

“You know, what you’re saying,” said Donahue, “is, ‘Let’s knock off three or four a year so we can feel strong.’ ”

“That’s not what I’m saying,” I told him, but maybe I was. I’m not sure I know now. Every time I contemplate the problem, I find finer reasons for confusion. The subject becomes bottomless.
Of course, there are times when you have to live with questions you cannot answer in ten seconds. We may be face-to-face with that difficulty now.

Certainly, it is easy to be against capital punishment. Should you think of yourself as civilized and liberal, it is almost impossible not to wish it abolished. Capital punishment simply does not appear to serve as a deterrent. In 1957, among the thirty-three nations that chose not to exercise the death penalty, the number of murders never increased. That gives pause.

Look at it. Some killings are committed in heat, and some in the coldest regions of the heart, but a man who murders in passion is, by definition, blind to restraints. Passion, or for that matter, rage and panic, causes us to act in a way we never would if our cautions were heard. On the other hand, anyone who murders by calculation can have a real fear of future execution, but it is only one factor in his calculations. Even if it all goes wrong, and he is caught and sentenced, there are still, by way of appeals, many years between him and his execution, so much as a decade, conceivably two decades. In fact, such a death is so far away that he is in more danger of being killed by a bust on the street. (For how often can a cop make a street arrest in an atmosphere free of the craziest tension?)

All right, replies the argument for deterrence: Change the calculations of the man who commits cold murder. Up the consequences. It sounds simple until you examine it. Up the consequences.

As, for example, from an Associated Press release: “Turkey’s new military government hanged a leftist terrorist and a rightist terrorist in front of their families before dawn today, informed sources said. The execution ended an eight-year suspension of capital punishment in Turkey and was aimed at deterring further terrorism.”

Hanging a terrorist in front of his family will certainly deter some of his friends—the timid ones. It will inspire the brave to more martyrdom. SAVAK tortured political prisoners in Iran by the thousands, and executed hundreds: the answer was provided by the Ayatollah Khomeini. To up the consequences is to face the consequences. It is a gamble. There may be more rather
than less violence. Besides, we would have to throw out the appeal system of the courts to speed up execution. You can’t accelerate the law and bypass legal procedures without removing the safeguards that protect us against too little justice.

Well, then, continues the argument, keep the safeguards. Let the law take its time. But execute those killers even if it requires ten years.

It still won’t work. If there is agreement about one common denominator to the psychopath—hot psychopaths and cold, calculating psychopaths—it is their need for quick gratification. Patience is not part of their powers. The present looms large, and the future seems hazy. To conceive of one’s own execution in years to come does not offer much check against the immediate impulse to murder.

Deterrence is overwhelmed by the excitement which capital punishment offers the killer. Convicts are the first to comprehend that any man who can slay another has crossed a barrier not all others are ready to follow. Men who end up on death row have true charisma, therefore. They may live in cages and grow wild and demented in the isolation of their lives, but they are the most important figures in any prison. Everyone knows their names. Celebrity, we may as well recognize, is even more electrifying to a convict than to an entertainer. A man leading a dull life, full of oppression, who finds himself a little more choked with rage each year, will secretly be drawn to the idea of capital punishment as a release from the monotony of his existence. So it works as a stimulant long before it is felt as a deterrent. The fear of retribution, if there is any, is more likely to occur after the act, not before. In England in 1900, 250 men were hanged; 170 of them had previously witnessed an execution. 1900 is not 1980, but the burden of proof is hardly reduced since capital punishment was a daily event in those years.

Of course, you can find more sophisticated arguments than deterrence for bringing us back to capital punishment. Ed Koch, the mayor of New York, put himself on record against fellow liberals
by declaring: “Society has the right to demonstrate its sense of moral outrage against particularly heinous crimes.” The death sentence may not be a deterrent, but society can still feel fortified. In fact, if it is not ready to execute its extreme malefactors, then society may seem absurd to itself. A mass of good citizens does not like to sit around in impotent fury after a cheap hoodlum has savaged a young girl and dismembered her body.

There is trouble, however, with this idea as well. “Particularly heinous crimes,” on closer examination, are almost never done by the kind of people society might be able to kill in good conscience. Atrocities are usually committed by poor, raddled wretches so schizophrenic in their inmost wheels that psychiatry itself is disturbed by a look into their minds. The gate of a mental hospital receives the killer rather than the sights of the executioner’s gun, the straps of the electric chair, or the touch of the rope.

So the more one contemplates capital punishment, the less one can argue comfortably that it works. On the other side of the argument, it soon becomes clear that it may do much harm to society. Certainly it disturbs the law. Anyone familiar with courts and legal processes knows that justice likes to be concrete. Attorneys try to build a case by putting together ladders of evidence with no weak rungs. Thereby the judge or juror can mount to his conclusion and never have to step across a gap. When a court is asked to decide whether a penalty should be $5,000 or $10,000, legal precedent can be as well laid out as a good network of roads. But so soon as His Honor or the Peers of the Defendant are asked to consider the sentence of death, law has come to the end of its reason. It is awesome to give the verdict at that point. All concerned must take a leap. Contemplate the vertigo that spins in the half-remembered dreams of judges, lawyers, and juries when they must condemn the man (or, very occasionally, the woman) in the defendant’s chair to a sentence of execution. It is one thing to read about a wanton slaying and tell your family they ought to kill the scummy son of a bitch who committed the act; it is another to sit on a jury and stare at your potential victim. He does not look that different now from anyone
else. Yet you are going to order this stranger—and how strange he is—to death.

That can only inspire the deepest panic. In our dreams, we are always up before judgment. The penalties, the retribution, the outright torture we suffer in a nightmare suggests some more precipitous universe beyond the familiar world of law, society, and daily life, some existence where one is given prodigious sentences for every mistake. Think then of the boiling pits in any judge or juror who has to condemn another to death. What if he has missed some extenuating circumstance? How much will he have to pay in eternity for such an error? Capital punishment inspires pure dread in judges and juries. Your dream life can be changed forever by bringing in such a verdict.

Even the attorney who prosecuted Gary Gilmore did not want to go to the execution. Gilmore had killed two young married men on successive nights and spoke of it with icy detachment. Gilmore also had a bad record in jail. So the county attorney worked with all his skills to get the death penalty and succeeded. Yet he never believed Gilmore would be shot. Tacitly, he assumed that the sentence of death would not only be appealed, but eventually commuted to life imprisonment. Personally, he had no desire to see Gilmore dead.

He was not unique among prosecutors. Capital punishment is to the rest of all law as surrealism is to realism. It destroys the logic of the profession. Until one gets to capital punishment, law is a game. A most interesting, valuable, and serious game. To the degree that a case is brilliantly argued by both sides, justice, if not done, is at least approached. Law is a way of saying: Human nature being what it is, you cannot get justice itself, but you can, if the lawyers are good enough, get the next best thing to it. You may even find an approximation of justice.

Capital punishment, however, says: The penalty no longer fits the crime. You are being moved from the court to the tomb. The prosecuting attorney is transmuted into an avenging angel, and the judge, a god. What has that to do with legal camaraderie?
Opposing lawyers, trying to tear one another apart in court, also like to laugh afterward at the moves each pulled. Contending lawyers, out of court, are usually more friendly than athletes on rival teams—in fact, they are like athletes who are trying out for the same position. The law is built on the assumption that life is mad, and law offers the same stability society brings to restless humankind. Look, you fools, says society, the way we do it makes no one happy, but somehow, most of the time, you get through life in one piece.

Capital punishment is there, however, to say: How do you get through a death? The man is not dying of disease, or by one of those livid cracks in the bowl of time that speaks of sudden accidents, or spontaneous acts of mayhem. No, he is being murdered administratively. The state will do the job. Which is to say that a large group of people hired by the state—corrections officers—are suddenly in charge of an unprecedented event.

Now, prison guards, unlike other state employees, do not have lives that are high in security and low in risk—to that extent they are not the same as other bureaucrats. They are sitting on real dynamite, whereas a desk bureaucrat is only sitting on the explosiveness of his own anxieties. Yet prison guards are not so different either. What characterizes all state employees is that they want each day to be like the next day. Prison guards most of all. Each day, for eight hours, they must report to a city of convicts and try to administer it. These guards are like occupation soldiers in a foreign land. It is to their interest that everything remain the same. That is their safety. If breakfast is served to convicts at seven each morning, why, then, an execution at sunrise will require the authorities to keep the prisoners in their cells. That will disrupt the serving of breakfast. Convicts who have empty bellies in the morning can stage a riot by noon. Any disruption of routine could, conceivably, prove fatal to a guard.

So, the impact on a prison of even a solitary execution is vast. To the inmates, one of their own is going to be assassinated. As the citizens of a city-state whose boundaries are the penitentiary walls, they see it as one more outrage perpetrated by the occupying powers. Prisons may be administered by wardens and corrections
officers, but they are kept in peace or are agitated by the prisoners, and it is the philosophy of the most determined convicts that gives the city-state its prevailing mood. Convicts do not necessarily see themselves as criminals, or maladjusted members of society. They can feel like occupied but unconquered partisans. A convict sees his own life from the inside, from
his
insides. His insides feel just as outraged by an injustice done to him as any law-abiding citizen.

Possibly, the convict is more outraged, since “law-abiding citizen” is just a couple of banal words, not an actual taxpayer. Which of us in the confessional of our heart would pretend to be law-abiding? No, we are usually full of guilt at all the little laws we break and do not pay for. Whereas the convict is suffering overt punishment. Often he does not feel wrong so much as trapped. The real criminals, goes prison lore, are on the outside slurping up fortunes at the money trough. A convict’s rage at any injustice done to him is large, therefore, and his solidarity—it is the word—with other convicts can bear comparison to the feeling of Arab terrorists for border Arabs, or of Israeli commandos for Jews who have been victims of terrorists.

The authorities in a prison are hardly ignorant of this view. They live with it, after all. So they know what the impact of an execution will be on the peace of the daily routine. Yet that is only part of their problem. They also have to carry off the job without looking sadistic or ridiculous, and there is so little precedent for an execution. Indeed, before Gilmore, there had not been an execution in America for ten years. So almost all the steps will be untried. To a bureaucrat, lack of precedent is equal to lack of bread. In a state which does not have a professional executioner or hangman, but a statute which calls for a firing squad, the warden can go through many an anxious hour trying to decide who he will use.