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Death Does Not Become Us

by Frank Gruber

"The punishment of death is pernicious to society, from the example of barbarity it affords."

- from Cesare Beccaria, Of Crimes and Punishments (1764)

Last December a federal judge permitted Timothy McVeigh to waive any further right of appeal. The government has set May 16 as the date for his execution.

At the same time that the federal government is preparing to execute its first criminal since 1963, the death penalty is under the most sustained public attack since the Supreme Court nearly abolished it almost 30 years ago.

Questions about verdicts have led even conservatives to wonder whether it is a good idea for the state to kill people. In Texas, the state that most frequently uses the death penalty, a legislative committee recently recommended holding a referendum on whether to have a moratorium on executions.

The history of the death penalty happens to be something I know about because of a paper I wrote in law school on the 19th century reform of criminal law in England. At the time, 1978, the topic seemed esoteric, because no one was being executed in the U.S. But what I learned then has unfortunately become more relevant as the years have gone by.

Prior to the 19th century, the guiding principle behind the criminal law of England, as well as just about every other place, was terror. In England, death was the punishment for more than 100 crimes, many of them trivial crimes against property. Crime was rampant.

Although the struggle took decades, reformers ultimately prevailed. They reduced the scope of the death penalty essentially to one crime, murder. They also devised a more humane penal system and caused the government to establish a modern police force. Crime declined.

Looking back, the most surprising aspect of the reform was that evangelical Christians provided the political muscle to push the new laws through Parliament. That's right: the religious beliefs we identify as conservative today were then associated with the radical cause of penal law reform.

Reform, however, did not begin with the evangelicals. It began with Cesare Beccaria, a nobleman from Milan, who wrote a quintessential Enlightenment book, Of Crimes and Punishments, which put thinking about crime on a rational basis. The book is just as trenchant today as it was when it appeared in 1764.

Beccaria's book was a big hit. Sixty editions were published by the end of the century in all the major European languages, including an English translation in 1767. In the 1770s and 1780s prospects were good for reform of English criminal law along the lines of the new thinking.

The English reaction, however, to the excesses of the French Revolution, and the wars with France, doomed for decades the prospects of enacting any new laws based on ideas associated with the Enlightenment.

Reform finally succeeded in the 1830s. Although the ideas behind reform came from philosophers, such as Jeremy Bentham, the political will and the necessary clout came from evangelical Christians, who, emerging from Methodism, steadily took over the established Anglican Church in the early 1800s.

The leader of the evangelicals was William Wilberforce, who is best known for leading the fight to abolish the slave trade. The evangelicals supported criminal law reform from humanitarian principles and because they believed the brutality and chaos of the system based on "the barbarous custom of hanging" (Wilberforce's words) induced the poor into lives of crime, and therefore jeopardized their ultimate salvation.

Although the evangelicals were conservative when it came to the political and economic rights of the working class, they pioneered the notion that social problems were political problems, and they changed public opinion in fundamental ways.

So what does this all mean today?

America remains in a prolonged period of political reaction against the social and political upheavals of the 60s. Nothing better exemplified that reaction than the death penalty tidal wave that rolled over the country in the 80s and 90s.

Given the country's overall religious bent, secular liberals who want a more humane society, including the abolition of the death penalty, might consider addressing their arguments to those who are often their opponents, namely the mass of pious Americans. But how might one do that?

Purely rational arguments do not work against the death penalty. Yes, the only purpose of punishment should be deterrence and rehabilitation, and yes, the death penalty does not deter crime, but these arguments will not persuade one who believes in retribution, and when statistics relating to deterrence are, at the end of the day, just statistics.

Beccaria made all the rational arguments against the death penalty, but ultimately he devised a subjective argument that was better, an argument that appealed to our better instincts. Laws, he said, "are intended to moderate the ferocity of mankind," and they "should not increase it by examples of barbarity."

Of course, the barbarity of the death penalty was more obvious two centuries ago, when executions were public, and when the mechanism of death was, at best, sloppy and, at worst, enhanced by torture.

We try to deal with Beccaria's argument by sanitizing the killing. But do we insulate ourselves from barbarism by means of "painless" lethal injections? By taking executions indoors, away from the mob?

Most people, myself included, would say that if someone must be the first federal prisoner put to death in 38 years, Timothy McVeigh is a worthy candidate. The enormity of his crime, the innocence of his victims, the desolation of their survivors. The fact that he attacked the very government responsible for a "domestic tranquillity" that is the envy of the world, despite its imperfections.

But killing McVeigh increases barbarity.

McVeigh's crime should remind us of who we are, of what we have, and what we aspire to be.

Cesare Beccaria wrote, in what must have been a bitter moment, that "the history of mankind is an immense sea of errors, in which a few obscure truths may here and there be found."

If we focus on those truths, perhaps all men and women of goodwill can, together, abolish the death penalty.

One does not have to be devout, nor Christian, to be moved by the words Thomas Fowell Buxton, a disciple of Wilberforce, said on May 23, 1821, in the House of Commons, in support of a bill to reform the criminal law:

"I hazard nothing when I say, that a very religious man cannot, in many cases, be a prosecutor. He deeply feels, that his own dearest hopes depend only on the pardon which he shall receive; and he knows, that the condition on which he asks forgiveness to his own trespasses, is the forgiveness he extends to the trespasses of others. He cannot, therefore, for many crimes, call down upon his brother sinner the exterminating vengeance of the law."

Schedule note: In last week's column I reported that the next meeting of the Downtown Parking Task Force would take place April 25. That meeting has now been canceled to allow staff more time to prepare, and the next meeting will be May 24, 6:30 pm, Ken Edwards Center.

The views expressed in this column are those of Frank Gruber
and do not necessarily reflect the opinions of The Lookout.
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