The Psychic Bartender: Hangman’s Lunch

January 20, 2012

"k1f" Kirby Farrell

People can’t think clearly enough to justify killing.  Sooner or later, in court or out, our unseen motives will always betray us into absurdity or evil. Here’s a case in point.

Nobody likes to think that innocent people might be put to death in a nation whose leaders are getting comfortable with the legitimacy of torture and military tribunals.  Even hardcore advocates of the death penalty strongly prefer to see guilty people die.  Troubled observers rightly grumble about procedural faults in death penalty cases.  But rarely does the public think out loud about the amazing susceptibility of death-penalty jurisprudence to the irrational depths of so-called normal life.  We see pretty clearly the incongruities and lunacy in some other legal systems – Saudi religious courts, or politically warped Soviet justice, say.  But it’s not so easy to recognize the pressure of absurdity in our own “natural” rightness.

Consider this:

The execution of Troy Davis in Georgia for shooting an off-duty policeman defied international appeals for clemency.  It also discounted evidence that the original prosecution was faulty, with seven of nine witnesses to the shooting later recanting their testimony.  There are ample procedural grounds for mistrusting capital punishment.  And cognitive studies have shown that the testimony of witnesses under stress is often unreliable.  To make matters worse, the historical record shows a highly suspect disproportion of death sentences pronounced on black defendants.

But there are deeply pernicious yet unaccountable psychological distortions that bear on the process too.   The religious convictions of judges and juries are bound to color their judgment yet they’re usually unaccountable.  Religious beliefs are euphemized or ignored in public discussions, and are in any case likely to be complex, nebulous, and to some extent unconscious.

At the last minute Troy Davis appealed for a stay of execution to the Supreme Court, which declined to intervene.  The present court is well known for its political appointments and historically novel decisions.  In 2009, Supreme Court Justice Scalia declared that “this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”  Yet beyond this peculiar, if not tortured reasoning, there are other, no less problematical forces at work.

Justice Scalia, for example, uses morally charged and unaccountable beliefs to justify capital punishment. Though ostensibly a “strict constructionist” in constitutional law, the Catholic Scalia maintains that for the believing Christian, “death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: ‘Friend, be not afraid of your office. You send me to God’ . . . . For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!  Besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will–the ability of man to resist temptations to evil, which God will not permit beyond man’s capacity to resist–is central to the Christian doctrine of salvation and damnation, heaven and hell. The post–Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.”

“Death is no big deal” unless of course you happen to be wrongly put to death. The justice reduces the bewildering variety of religious experience to “the Christian” and attacks a straw man, the “post-Freudian secularist.”  In this rhetoric Christian theology shrinks to a historically shadowy anecdote used by a dramatist in a popular hagiography.  Murder is terrifying–“a horrible act!”–yet in theory Christian murder victims achieve bliss with God, so the rhetoric boxes in deep ambivalence.  Scalia’s Gospel sees no incoherence here and has no room for Christian mercy.

The justice is weighing the power to kill accused individuals, but his argument refuses to contemplate actual behavior. Its stereotypes foster psychic impunity by polarizing categories and ignoring the quality of evidence.  At no point does Scalia acknowledge that he is talking about faith in immortality that by definition is beyond any rational standard: and that such faith could be used to legitimize judicial murder or a genocidal crusade.  At the same time he imagines that all murders are deliberate acts, ignoring the roles of panic and accident, not to mention organic dysfunction.  Operating in an anti-psychological intellectual zone, the man never considers that the terror of annihilation might be driving his take-no-prisoners convictions about immortality, or that a judge’s magisterial courage might be at bottom tragic denial.

Rage for order is both a behavior and an idea about behavior. Justice Scalia, for instance, is attracted to the idea of punishment: “the Christian is also more likely to regard punishment in general as deserved.” He imagines a world cleanly divided between the righteous and the damned; believers and nonbelievers, Christians and “Post-Freudian secularists,” and so on.  In this mindset the deep structure is melodrama.  Differing imaginations don’t overlap, wonder at the infinite varieties of creation, agonize over how to get at the truth, or rue our tragic inadequacy (“God will not permit [temptation] beyond man’s capacity to resist”). Social life is not a matter of trade, negotiation, mutation, and adaptation, but rather an adrenalized struggle to identify and punish, empowered by a conviction of godlike invulnerability.

The issue is not whether judgment will exist, but what form will it take?  How much is enough?  Who gets to judge?  On what evidence? And who will police the system? History groans with mass movements and cults that have thrived on predatory righteousness.  The self-intoxicating effects of moral aggression stand out in Philip G. Zimbardo’s famous Stanford Prison Experiment, which had to be halted early when student volunteers in the roles of prison guards began slipping into sadism and the inmates’ depression became self-confirming.  But this was only an experiment, not the living horror of a false conviction and judicial murder–the likely fate of people such as Cameron Todd Willingham, whom Texas officials put to death in 2004 despite demonstrably faulty evidence, a feckless appeals process, and now a brazenly manipulated coverup by a governor who has become a national candidate for president..

In his retirement, with moving humility, Justice John Paul Stevens abjured his support for the death penalty decades before.  Reviewing reasons that capital punishment is “unwise and unjustified,” Stevens called attention to the creaturely motives underlying American cultural practices that make the law perverse, quoting the argument of David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition (2010).  Not only is the death penalty not a deterrent to crime, it actually promotes “gratifications,” of “professional and political users, of the mass media, and of its public audience.” With its demonstrable racial biases and its role in the Republican party’s “southern strategy” as well as in the post-Vietnam “culture wars,” capital punishment has served political ends.  But beyond these motives, even beyond revenge, Stevens and Garland see at work “the American fascination with death”–specifically, the “emotional power of imagining killing and death. [Garland] concludes that “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.”

From Clarence Darrow to the Justice Project, many have challenged the death penalty, and for good reason.  But a thorough reexamination of the death penalty is long overdue.  It needs to bring into the light, for all to see, not only the difficulties that compromise capital punishment in action, but also its profoundly fallible roots in mental life.

Here in the bar, on the mirror behind the glittering bottles, you can still make out the worn gilt letters of the old advertising slogan, “Primum Non Nocere.”

Bottoms up, pal.

(This argument draws on Kirby Farrell’s Berserk Style in American Culture : <<http://people.umass.edu/kfarrell/Berserk_Style_in_American_Culture.html)



  1. Excellent post, Kirby. Scalia is indeed one of the worst justices the SCOTUS has seen in modern times. (Thomas may be worse, but at least he usually keeps his mouth shut!) Scalia clearly uses his personal views and biases to inform his decisions far more than his purported “strict constructionist” approach to the law.

    You correctly pointed out the racial and economic bias in deciding who receives the death penalty. Rich white guys almost never end up on death row. (Same for rich black guys, I guess; look at O.J. Simpson.) The defendants in capital cases often cannot afford legal counsel, and end up with lawyers who are overworked and poorly paid.

    Finally, we already have the evidence needed to abolish capital punishment. A New York Times editorial from a few months ago stated that 17 people on death row have been released based on DNA data, and 112 others for other reasons. Even those who support capital punishment in principle should admit that the system is fatally flawed, so to speak.

  2. While I largely agree with what has been said above, it is worthy to note that exceptions can be made. For example, it is my understanding that the Green River Killer here in Washington was persuaded to divulge his victims and the locations of their remains as a plea bargain so that he would not be given the death penalty. This information was helpful both for families and prosecutors.

    Maybe we don’t actually need to abolish capital punishment but instead put more stipuations around it’s use.

    I have a dislike of absolutes…

  3. Diana, you make a good point that the threat of capital punishment can be used to persuade people to divulge location of victims. The threat may also persuade people to testify against other guilty parties. There may even be times when the possibility of the death penalty dissuades certain people from committing a worse crime (i.e., the robber may decide not to shoot the victim). The thirst for revenge by the victim’s family may also be slaked by capital punishment.

    But one must weigh these occasional benefits against the colossal injustices accompany using the death penalty (it is applied mostly to Blacks and the poor; over 100 innocent people have been released from death row; many defendants receive inadequate legal counsel; etc.).

    It really has nothing to do with whether or not one dislikes absolutes. It has to do with looking at all the evidence and weighing it as objectively as possible. It has to do with justice, fairness, whether errors in our criminal justice system are rare enough to justify an irreversible punishment, and–from a moral perspective–whether society should be in the business of killing its citizens when they misbehave. From my perspective, evaluation of the evidence clearly calls for abolition of capital punishment, and the use of “life without parole” in its place.

  4. Alas, I can see no reliable justification for capital punishment. History is sick with examples of people who will confess to anything if terrified enough. This was one of the main sources of epidemic hysteria in the early modern witch panics, to cite only one hair-raisingly obvious example. If the state is going to use the death penalty to bargain with real or mistakenly convicted criminals, then judicial killing will always be a form of gambling, tainted by contingency that undermines its claims to justice.

  5. Just by chance, this morning I read an essay in the New York Review of Books (Nov. 10, 2011) by retired Supreme Court Justice John Paul Stevens (who was appointed by Gerald Ford). The essay was a review of a book entitled “The Collapse of American Criminal Justice” by William J. Stuntz.

    In his book, Stuntz made an important point about the abuse of the death penalty by prosecutors, who–faced with an unprovable case against a defendant–charge defendants with crimes that qualify for the death penalty, and then bargain the defendant into a life sentence. Justice Stevens agrees completely with Stuntz on this point, saying “Because of the uniqueness of the fear of death, I find that prosecutorial bargaining chip particularly offensive since it seriously risks persuading an actually innocent defendant to plead guilty…”

    It seems to me that Stuntz and Justice Stevens have identified yet another reason to eliminate the death penalty… as if all of the other reasons were not enough. Moreover, abolishing capital punishment is entirely consistent with eschewing absolutes, since even death penalty proponents would agree that we must be “absolutely” certain the defendant is guilty before we kill him. Absolute certainty is not attainable for any non-trivial issue, and especially so in our badly broken system of criminal justice.

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