Death Is That Man Taking Names: Intersections of American Medicine, Law, and Culture

8. All the Days of My Life

C H A P T E R E I G H T ALL THE DAYS OF MY LIFE Our publicly proclaimed motives are impeccable: the death penalty must be administered without arbitrariness, without discrimination against racial minorities or poor people, and only with the most intense scrutiny by impartial judges to assure that the entire enterprise is beyond reproach. This was the explicit commitment that the United States Supreme Court first made in 1972. The reality is, however, far distant from this ideal—and the Court itself, beginning in the early 1980s, adopted one measure after another to ensure that this ugly reality would remain hidden from public view. The dynamic could not be clearer: a public commitment to moral purity coupled with actions that undermine that commitment but without any acknowledgment of the contradiction. Our commitment to moral purity is, paradoxically, the core problem with the death penalty. We are unwilling to settle, honestly and openly, for systemic imperfections and injustice because the death penalty is an intentional, unambiguous infliction of death on a human being; in embracing it openly, there is no psychological space for self-protective ambivalence . The pre-1970s social ethos of invisibility was never more than a marginally effective instrument for expressing ambivalence about capital punishment specifically or the presence of death generally. But once this ethos had lost its grip, we had no choice regarding capital punishment but directly to acknowledge its clear volitional character. At that point, we had only one next choice: either abolish the death penalty or lie to ourselves and others about the attainability of perfect justice, of an absence of wrongfulness, in its administration. Because the administration of the death penalty requires strictly dichotomous allocation of 157 moral guilt and innocence and because there is no possibility that this dichotomy can be sustained, the death penalty cannot be reformed. It cannot be cleansed. It must either be accompanied by persistent wrongdoing or abolished; there is no middle ground. We have chosen, however, to pursue this illusory middle ground—led and deluded by the Supreme Court since 1976—and we thereby set ourselves on a path of escalating falsehoods, coupled with a virtually irresistible impulse to betray our guilty consciences by engaging in increasingly obvious injustice which, of course, we are impelled to deny with increasing intensity. And so down, down the slippery slope. Two general guidelines can be extrapolated from this conclusion and applied in contexts beyond capital punishment. The first is that intentional , unambiguous infliction of death in any context should be rigorously avoided and socially disapproved. The second is that, where death cannot be avoided, ambivalence about its moral status is also unavoidable and should, accordingly, be self-consciously and visibly honored through the design of practical techniques for highlighting and even amplifying its inevitable presence. These are the premises that implicitly guided Judge Learned Hand in his rejection, in theRepouille case, of Judge Jerome Frank’s dissenting claim that “ethical leaders” might properly bestow definitive moral approval on a purposeful infliction of death and in Hand’s preference instead for openly avowed ambivalence. We can now explicitly draw out three interlocking dimensions of Hand’s disposition: its psychological virtues, in both individual and social terms; its value in democratic theory ; and its significations in the rituals for approaching death. Psychological Virtues Applying Hand’s guidelines to social arrangements regarding abortion might seem to lead to the same conclusion that I have reached for the death penalty. Abortion could conceivably be prohibited, just as the death penalty could be abolished. Some people argue, of course, that there is no direct parallel because capital punishment involves the death of a human being while abortion does not. But even if we assume that abortion involves human death, there is one salient difference from capital punishment. Abolishing abortion in order to protect fetal life involves the direct imposition of coercion and suffering on another person—on the pregnant woman who is forced to carry the fetus to term. If permit158 ALL THE DAYS OF MY LIFE ting abortion necessarily involves denying the humanity of the fetus (treating it as nothing but disposable biological protoplasm), prohibiting abortion necessarily involves denying the humanity of the unwilling pregnant woman (treating her as nothing but a biological container). It is true that abolishing the death penalty would inflict suffering on the family of murder victims...