What We Talk About When We Talk About the Death Penalty

The new (December 23) issue of The New York Review of Books has a fascinating article on the death penalty by former Supreme Court Justice John Paul Stevens.  I have to say that I have been impressed by The New York Review for their ability to arrange contributions from Supreme Court Justices, present and past.  The Review provided a platform for Stephen Breyer to preview material from his latest book, Making Our Democracy Work:  A Judge’s View;  and now we have Stevens using this same platform for “another judge’s view.”  Even more interesting is that, in this case, Stevens is actually reviewing a book, David Garland’s Peculiar Institution:  America’s Death Penalty in an Age of Abolition.

Stevens was clearly qualified to write on this topic, since the Supreme Court is often invoked as the “court of last resort” in efforts to overturn death sentences.  Furthermore, since Garland makes it clear that his book is neither for nor against the death penalty, Stevens is particularly qualified as one who appreciates the need to approach problematic issues from many different points of view, regardless of whatever conclusions are eventually drawn.  Indeed, if Garland never takes either a pro or con stand, the reader is likely to be left wondering what will be concluded by reading his book.  Stevens provides an answer to this question that serves to make his review so intriguing:  “the American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.”

However, this raises the troubling question of why we should need such a “peculiar institution.”  The best answer I can propose is that we, as a culture, desperately need discourse about death because our mass media have so saturated us with the issue.  Consider the ongoing popularity of crime drama on television.  When was the last time you saw a story about crime in which the crime was not homicide?  Were it not for all the recent attention to different forms of white-collar crime in the financial sector by documentary makers, a visitor who knew nothing about our culture might conclude that homicide was the only act we regarded as criminal.

Admittedly, it is easier to tell a story about homicide.  Just about any television program on the subject begins with someone finding a body somewhere.  From there one could begin to pin down the act responsible for the body getting there, whereas it is not as easy to similarly pin down why so many people on Main Street are still worrying about unemployment, foreclosed homes, and retirement funds that lost value catastrophically.

However, because stories of death are easier to tell than other stories of crime, we fall into the trap of believing that death is a simple matter, which often entails other simple matters such as defense or revenge.  Indeed, we tend to tune out when it emerges that the matter is not simple;  and, if we do not have the luxury of tuning out, we often turn hostile, one of the points that Reginald Rose made so well in 12 Angry Men.  This leads to a troubling corollary:  Perhaps we put death into political discourse because we believe that our perceived simplicity of decisions about death will help us simplify other decisions, such as political ones, that we have to make.  Think of how the debate of abortion was inflamed by invoking language that turned it into a debate over whether the act of abortion is homicidal.  Thus, what we talk about when we talk about death (with apologies to Raymond Carver) is how we try to simplify that which cannot be simplified;  and, where major decisions are concerned, such simplification really is a “fate worse than death.”