A pretense of civility unveiled

April 24, 2001|By Susan Jacoby

IN 1869, Russian exile Nicholas Ogarev, a close friend of Russian socialist thinker Alexander Herzen, wrote his mistress a letter describing the London execution of a man who had attempted suicide by slitting his throat - then a capital crime.

A shocked Ogarev reported that a doctor had warned of the difficulty of hanging a man who had cut his throat because "the throat would burst open and he would breathe through the aperture." That is exactly what happened. "It took time to convoke the aldermen to decide the question of what was to be done," Ogarev recounted. At length, the aldermen bound up the neck below the wound until he died. "Oh my Mary, what a crazy society and what a stupid civilization."

Because everyone was invited to hangings in Ogarev's day, there was no need for the sort of ghoulish lottery, announced last week by Attorney General John Ashcroft, to decide who gets to witness directly the execution of Oklahoma City bomber Timothy McVeigh. Only 10 survivors of the bombing (or relatives of the dead) will be present when McVeigh receives a lethal injection at a maximum-security prison in Terre Haute, Ind.

The other survivors and relatives will have to be content to witness McVeigh's death by closed-circuit television - a broadcast designed, as Mr. Ashcroft put it, to "help to meet their need to close this chapter in their lives." The rest of the American public is not invited to this special performance and the government is taking extraordinary measures in an effort to prevent computer hackers from stealing the digital signals and disseminating the execution video.

Mr. Ashcroft well knows that televising the execution nationwide would make Americans seem barbarians to much of the world, if not to themselves.

The attorney general's dilemma, like that of the wound-binding aldermen in London more than 130 years ago, strips away the pretense that the death penalty is a civilized, measured instrument of criminal justice. The lottery dispenses with the usual pro-death penalty arguments - such as its exemplary and deterrent value - and lays bare the essentially emotional rationale for executions: We who have lost our loved ones will feel better if we see their killer die.

Even the strongest supporters of capital punishment know, deep down, that it is a shameful thing. If they were truly proud of the death penalty and truly believed in its exemplary value, they would be thrilled to televise every execution on free TV.

Many death-penalty opponents make the mistake of decrying capital punishment as "legalized revenge" - as if that alone were a sufficient argument against the practice.

The real issue is not whether the death penalty constitutes legalized revenge - for the same could also be said of many lesser penalties - but which forms of revenge, or the politer "retribution," are consonant with the aims of a just society.

When I was writing a book about justice and vengeance, I interviewed a Nazi camp survivor who had become a prominent civil liberties lawyer. "You'd even let Eichmann live?" I asked.

"Especially Eichmann," he answered. "There can be no proportional punishment for a crime of this nature. Since you can't kill anyone more than once, the question then becomes: What does a particular punishment say about the nature of the society that imposes it?"

McVeigh, an apparently remorseless sociopath, presents precisely the same kind of hard case. His scheduled execution and the manner in which it is to be conducted hold up a mirror in which Americans may view the hypocrisy of their passions.

Officials who spend money to give selected victims a chance to witness a man's destruction - and then spend even more money to prevent the rest of the citizenry from viewing the same spectacle - represent a Pilate-like public that wishes to condemn and wash its hands at the same time.

It is particularly reprehensible to use McVeigh's execution in an attempt to provide emotional "closure" to victims (some of whom will undoubtedly discover that surcease from grief and rage is not to be found in this fashion).

One purpose of all criminal punishments - not only the death penalty - is to express society's outrage at serious violations of its norms. But the emotions of victims and their relatives should be as irrelevant as the emotions of the criminal when society's representatives decide exactly how their outrage should be translated into punishment.

Were McVeigh the most apologetic murderer who ever lived, it would not stop me from sentencing him to life without parole. Conversely, that many of his victims would like to see him dead - so much so that they actually want to see him die - is no argument on behalf of capital punishment.

It speaks volumes about the coarsening effect of the death penalty that Americans are not so shocked by the forthcoming made-for-victims TV broadcast as they would be if our government were to revive the once-hallowed practice of killing people because they have tried to kill themselves. We should have learned more over the past 150 years.

Susan Jacoby is the author of "Wild Justice: The Evolution of Revenge" and "Half-Jew: A Daughter's Search for Her Family's Buried Past" (Scribner, 2000). This article first appeared in Newsday.

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