Deciding to kill

May 01, 2006|By ADAM BENFORADO

CAMBRIDGE, ENGLAND -- The death penalty will be abolished.

Perhaps, it won't be in time to save Clarence Hill, the condemned Florida man whose challenge to the constitutionality of existing lethal injection procedures was heard by the Supreme Court on Wednesday, or Vernon Lee Evans Jr., whose appeal to Maryland's highest court is scheduled for next month. But the death penalty is going to be abolished.

The United States is the last Western country to permit it. Many religious leaders, including the pope, have condemned it. The courts have been chipping away at it. And the public is increasingly against it.

It will be abolished, and when that happens, we will, no doubt, end up feeling rather civilized and enlightened. We will be a nation that, in the words of the late Supreme Court Justice Harry A. Blackmun, "no longer ... tinker[s] with the machinery of death."

Or so it would seem.

The problem is that, as a society, we make decisions to kill people all the time that have nothing to do with criminal justice - or wars on terror, for that matter. Often, they involve the mundane details of our daily lives.

When the government decides not to lower the speed limit or not to ban cigarettes, it makes a decision to end life, just as it does when it elects to have capital punishment. We know that by choosing to continue our current policies, about 60 people will be executed this year, about 40,000 will be killed in vehicle accidents and about 400,000 will die of smoking-related conditions. We do not know who any of these people will be, but we know that they will die as a result of our collective decisions.

In their 1978 book Tragic Choices, Judge Guido Calabresi of the 2nd U.S. Circuit Court of Appeals and professor Philip Bobbitt of the University of Texas Law School suggested how difficult it is to regard an accident or smoking death as having been chosen by society. Although we have played a vital role in determining the outcome, we are not a recognizable character in the final individualized act.

The government is not driving the car that crosses the median at 60 mph, nor is it sitting at the bedside holding a cigarette to a person's lips. Part of the reason that capital punishment has been the focus of so much agitation is precisely because the government is putting the needle into the arm of the condemned inmate. It is, in essence, acting as both the judge and - in those last salient moments - the executioner.

Being concerned with society's role at the gallows is certainly important, as Columbia Law School professor Jeremy Waldron pointed out recently in the context of torture. Establishing the perception of law as removed from brutality has been a major project in the Western world for centuries.

But if our primary interest is with preserving human life, we ought to be most worried about the role of the decision-maker and not with who ultimately pulls the trap door - whether it is the state enforcing a sentence or a private actor making the fatal choice that we knew, statistically, someone was going to make.

When we set policy on health care, environmental protection or public transportation, we need to be fully aware that we are choosing something - be it money, time or administrability - over people's lives. These are lives that are just as real and just as savable as those of Clarence Ray Allen in California, Perrie Dyon Simpson in North Carolina, Marion Dudley in Texas, Marvin Bieghler in Indiana and Jaime Elizalde in Texas - five of the men killed by lethal injection since January.

In a large society with diverse needs, making decisions about life and death may be inevitable, but such choices must not be made lightly. It is far easier to send a person to his death when you do not have to do the actual killing.

If we are to make good policy decisions - ones that truly reflect our commitment to only ending life when we have to - we must work to feel as responsible for the lung cancer victim as we do for the executed criminal. The day we abolish the death penalty will be a great day, but our work will be far from over.

Adam Benforado is a Frank Knox fellow at the Cambridge University Faculty of Law. His e-mail is

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