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C H A P T E R T W O HIDDEN DEATH I Walk through Shadows In 1947, a three-judge panel of the United States Court of Appeals for the Second Circuit rendered a decision that can be understood as both an early expression and a wise rejection of the reform impulse that was to erupt twenty years later into the dominant contemporary agenda for the dispensing of death. The three judges were Learned Hand, Augustus Hand, and Jerome Frank—today generally considered the most distinguished panel of American judges ever assembled in one courtroom. By my account of this decision, Learned Hand emerges as the role model whom I would commend for avoiding the seductions of triumphalist rationality and working his way toward a solution that gives publicly acknowledged visibility to ambivalence about the moral status of death. In 1939 Louis Loftus Repouille, a native of the Dutch West Indies living in New York, killed his severely disabled thirteen-year-old son, Raymond . In 1944, Repouille applied for United States citizenship; his application was opposed by the government on the ground that he could not satisfy the naturalization statute’s requirement of having been “a person of good moral character” during the preceding five years. When his case came to the Second Circuit Court of Appeals in 1947, the three judges were directly confronted with the task of determining the morality of a death-dispensing decision. When Raymond was killed in 1939 and when the appellate court was asked to adjudicate his killer’s moral stature in 1947, it was unusual that such a child would attract any social attention. According to court records , Raymond had been born with “a brain injury which destined him 27 to be an idiot and a physical monstrosity, . . . blind, mute, and deformed . He had to be fed; the movements of his bladder and bowels were involuntary, and his entire life was spent in a small crib.” Most children like Raymond were consigned at an early age to state residential facilities—mammoth institutions located far from populated areas, visited by no outsiders (including most parents of the residents)—and they remained in these institutions until they died, from whatever causes. These warehousing institutions were established following the Civil War and can themselves be understood as yet another expression of the pervasive culture of death’s denial—as places, that is, for removing from public visibility people contaminated with the stigma of death. It was not only that retarded children were understood as incurably ill but the very terms of their illness—their incapacity to participate in ordinary social interactions—conveyed a sense of “social death.”1 Raymond Repouille was unusual in 1939 because he had remained in his parents’ home with four younger siblings (“all normal,” as the court records said). Because he thus had not been hidden from any contact with ordinary social life, his death attracted more attention than would the unseen deaths typical for his institutionalized counterparts. Here is the public account of Raymond’s death that appeared in the New York Times on October 13, 1939:2 Louis Repouille, a $25-a-week elevator operator at the Columbia-Presbyterian Medical Center, who had spent his life’s earnings trying to cure his incurably imbecile son, Raymond, 13 years old, ended the boy’s life yesterday as an “act of mercy.” Frantic with poverty and despair, Repouille, described by Medical Center officials as a “most reliable employee” and by his neighbors as a quiet and respectable man, soaked a rag with chloroform from a one-ounce bottle and applied it several times to the boy’s face while he lay awake in a crib in the rear bedroom of a squalid four-room flat at 2071 Amsterdam Avenue. Then he burned the rag. The boy had been bedridden since infancy. About five years ago he was operated on for a brain tumor at the Broad Street Hospital, according to the police, and had been blind since that time. “He was just like dead all the time,” Repouille told detectives while he was being questioned at the West 152d Street police station on Amsterdam Avenue . “He couldn’t walk, he couldn’t talk, he couldn’t do anything. I spent $500 —all the money I had—on an operation, but that didn’t do any good. Specialists charged me $25 a visit and told me that there was no hope.” . . . After questioning at the station house, Repouille, who is 40...

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