PUBLIC television station KQED in San Francisco returned to federal court Friday to argue for the right to videotape and later broadcast the execution of Robert Alton Harris, who murdered two teen-agers in 1978.
Because the death sentence constitutes the most severe criminal penalty a state can mete out, KQED claims the public has a profound right to watch.
KQED neither opposes nor supports capital punishment. It has stated that it only wants to vindicate television journalists' First Amendment rights. For years, however, opponents of capital punishment have trumpeted televising executions for a different reason: They hope to shock Americans into outlawing capital punishment.
In 1985, for example, Sen. Mark Hatfield of Oregon suggested that the public would turn against the death penalty once it peered into the execution chamber. Earlier this year, Pat Clark, director of Death Penalty Focus, a California anti-death penalty group, insisted that if executions are televised, "People will ultimately realize it's a human being murdered in a premeditated, calculated way by the state in our names."
This shock strategy is superficially appealing. It assumes that death penalty supporters -- 80 percent of all Californians -- will vote with their stomachs after watching the show, and elect anti-death lawmakers.
But the strategy is also naive. It paints supporters of the death penalty as bumpkins who haven't thought carefully about their choice of punishment. Do the shock strategists believe that supporters of the death penalty don't visualize what goes on in the gas chamber or electric chair? Do they actually think that by showing Robert Alton Harris' eyes explode, his chest shake and his body squirm in agony, people will be surprised?
Capital convicts commit acts of horrible violence. The whole point of the death penalty is to exact terrible retribution. I strongly oppose capital punishment, but its steadfast supporters know that violence is the price of vengeance -- and they accept that price.
No, supporters of capital punishment won't be surprised. But they will react viscerally. And precisely because they accept the violence inflicted by the executions, the shock strategy will backfire.
Until the mid-19th century, executions were public events in the U.S.; families picnicked at local hangings. States eventually outlawed the celebrations because the ritualistic violence precipitated raucousness, drunkenness and general disorder.
How would 21st century viewers react to death screenings? If televised executions are presented responsibly, coverage would no doubt begin with a "background piece" that would air as many gruesome details of the crime as time would allow. For moderate supporters of capital punishment, the sight of state-inflicted gore may be a turn-off, but its juxtaposition with criminal gore would produce only an irreconcilable conflict of emotions. And for ardent death penalty advocates, the turn of the switch will induce catharsis -- and calls for more.
Disquieting images can have a salutary effect on public discussion. Pictures of Southern policemen firehosing black protesters galvanized support for the civil rights movement. But those horrible sights were news as well as powerful images. The marginal informational benefit of televised executions, on the other hand, would be small.
There is something fundamentally wrong with discussing closely contested moral issues in purely visceral terms. The death penalty is already one of the most heated of these issues. By reducing debate about it to a contest of shocking images, we diminish our capacity to resolve it -- and we diminish our civic culture.
Jonathan Sherman is a law student at Stanford Law School.