Reason Magazine - Topics > Capital Punishment

Think of It As a Lifectomy

jsullum@reason.com (Jacob Sullum) — Wed, 23 Apr 2008 07:00:00 EDT

In his recent Supreme Court opinion upholding Kentucky's execution method, Chief Justice John Roberts says the state's lethal injection procedure passes constitutional muster because it does not pose "a substantial risk of serious harm." You might think serious harm would be hard to avoid with a procedure that's designed to take someone's life.

Roberts, of course, is not talking about the harm that inevitably occurs when someone dies; he is talking about the possibility of pain on the way to that final destination. This strange fastidiousness about making murderers as comfortable as possible when we kill them suggests that capital punishment in this country is ultimately doomed.

It's not doomed because it violates the Eighth Amendment's prohibition of "cruel and unusual punishments," contrary to what Justice John Paul Stevens now seems to think. As Justices Antonin Scalia and Clarence Thomas point out in their concurring opinions, a penalty explicitly envisioned by the Constitution (which refers to capital cases and says the government may not take someone's life without due process) can hardly violate the Constitution.

No, capital punishment is doomed because most Americans, including many who ostensibly support it, are not truly at ease with the idea of killing a man in cold blood. On balance, that is probably a good thing.

This discomfort with executions is reflected in what initially seems to be a needlessly complicated lethal injection process. In Kentucky, as in the vast majority of the 36 states with death penalties, condemned prisoners receive three different drugs: sodium thiopental, a barbiturate that would be fatal on its own in a large enough dose, to knock them out; pancuronium bromide to paralyze their muscles; and potassium chloride to stop their hearts.

The Eighth Amendment challenge to this procedure was based on the possibility that a prisoner might not get enough of the barbiturate to be fully unconscious. In that case, he would experience suffocation from the pancuronium bromide and severe pain from the potassium chloride without being able to communicate his suffering.

One solution to this potential problem, recommended by the two Kentucky murderers who brought the case, is to eliminate the pancuronium bromide so that the illusion of unconsciousness won't be mistaken for the real thing. In his opinion, Roberts cites two reasons why a state might nonetheless decide to continue using the paralytic agent.

"First," he writes, "it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death."

It's clear from these justifications that the state is trying to prevent discomfort not in the condemned prisoner (who, after all, is supposed to be unconscious) but in the people who witness the execution and, by extension, the general public. "Preserving the dignity of the procedure" is code for maintaining the illusion that a man the government executes is really just undergoing a medical procedure with a very high risk of fatal complications.

In the ebb and flow of American death penalty fashions, from hanging and firing squad through electrocution and the gas chamber to lethal injection, Roberts sees "an earnest desire to provide for a progressively more humane manner of death." I see an earnest desire to soothe an increasingly squeamish public.

As Fordham University law professor Deborah Denno has noted, the execution methods that are less unpleasant to watch are not necessarily less painful. "To me," she told The New York Times a few months ago, "the firing squad is the most humane and perceived to be the most brutal."

Around the same time, the Chinese government said it planned to switch from executions by gunshot to executions by lethal injection, which "is considered more humane," according to an official of the Supreme People's Court. Should that count as progress?

Supreme Court Upholds Lethal Injection

jsullum@reason.com (Jacob Sullum) — Wed, 16 Apr 2008 15:26:00 EDT

Today the U.S. Supreme Court upheld lethal injection, the execution method used by nearly every state with capital punishment, against a challenge by two Kentucky murderers who argued that it violates the Eighth Amendment. Seven justices agreed that the three-chemical lethal injection method, which involves a barbiturate for anesthesia, pancuronium bromide to paralyze the muscles, and ~~sodium~~ potassium chloride to stop the heart, is not "cruel and unusual punishment." But they disagreed about the proper standard to apply in reaching that conclusion.

The plurality opinion by Chief Justice John Roberts, which was joined by Justices Anthony Kennedy and Samuel Alito, says Kentucky's execution method passes muster because it does not pose a "substantial risk of serious harm": Although it's true that a condemned man will experience suffocation and pain if he is not given an adequate dose of the anesthetic, the odds of such a mistake seem to be pretty low. In a concurring opinion, Justice Stephen Breyer says there is not enough evidence to conclude that the three-drug method poses even "a significant risk of unnecessary suffering," a more easily satisfied test for cruel and unusual punishment. While expressing reservations about the use of pancuronium bromide (which, among other things, prevents the prisoner from signaling his discomfort if he does not get enough of the barbiturate) and about the death penalty generally, Justice John Paul Stevens agrees that there isn't enough evidence on the record to overturn the procedure. Justices Antonin Scalia and Clarence Thomas say an execution method violates the Eighth Amendment "only if it is deliberately designed to inflict pain." The two dissenters were Justices Ruth Bader Ginsburg and David Souter, who favored remanding the case for consideration of whether Kentucky's failure to adopt safeguards used by other states to make sure the prisoner is unconscious "poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

Here is my last comment on the subject, which includes links to earlier reason coverage.

Should the Death Penalty Cover Crimes Other than Murder?

gillespie@reason.com (Nick Gillespie) — Mon, 14 Apr 2008 07:21:00 EDT

The Wash Post reports on a death-penalty case the Supreme Court will hear later this week:

"The 'evolving standards of decency' framework is not a one-way street that may lead only towards the elimination of the death penalty," the state of Texas argues in a brief joined by eight other states. "Each state's legislature should be allowed to...reflect its citizens' current moral judgment regarding the just deserts for certain capital crimes."
Of the 3,300 inmates on death row across the country, only two are there for a crime other than murder. Both were convicted under Louisiana's child rape statute, passed in 1995 and still the broadest in the land.
Those facts alone are a powerful argument that executing someone for rape would violate the Eighth Amendment prohibition against "cruel and unusual punishment," argue lawyers for Louisiana death row inmate Patrick Kennedy. The 43-year-old Kennedy was convicted of raping his 8-year-old stepdaughter in 1998 in an assault so brutal that the girl required surgery.
But Jeffrey L. Fisher, a Stanford University law professor who will argue Kennedy's case, said no matter how heinous the crime, the court decided in 1977's Coker v. Georgia-- its last previous ruling on the limits of capital punishment -- that rape is not subject to the ultimate penalty.
Justice Byron R. White wrote for the court: "We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life."

More here.

I'm against the death penalty because I don't think the state should have the power to execute. I think the state's role is to protect its population and it should do that using as little violence as possible.

But how do Hit & Run readers feel about the death penalty, in the above case and others?

reason on capital punishment here.

Which Execution Method Causes the Least Discomfort (to the Public)?

jsullum@reason.com (Jacob Sullum) — Tue, 08 Jan 2008 18:36:00 EST

Judging from yesterday's oral arguments over what standard to use in determining whether an execution method violates the Eighth Amendment, the Supreme Court is not inclined to order changes in the way states put people to death. But the arguments touched on a point that struck me the last time I wrote about these cases: Decisions about execution methods have less to do with the comfort of the condemned man than with the comfort of the people watching him die.

The currently favored protocol involves the injection of three substances: sodium thiopental to render the prisoner unconscious, pancuronium bromide to induce paralysis, and potassium chloride to stop his heart. The main criticism of this method is that if the first drug is not administered properly, the prisoner will experience suffocation from the second and severe pain from the third without being able to signal his suffering. During yesterday's arguments, Linda Greenhouse reports in The New York Times, Justice John Paul Stevens said he was "terribly troubled" by the use of the pancuronium bromide, which he called "almost totally unnecessary." Stevens said the only point of this drug seemed to be preventing the prisoner from involuntarily twitching or grimacing, thereby upsetting the witnesses. Yet replacing the three drugs with an overdose of a long-acting barbiturate, as suggested by the prisoners challenging the method, could make executions less "dignified," Chief Justice John Roberts suggested.

In fact, as New York Times legal reporter Adam Liptak noted in a background story last week, the possibility of "distressing and disruptive muscle contractions" was one reason states did not adopt the single-drug method to begin with. Corrections officials also worried that the process "might take a long time." Again, both of these concerns relate to how the execution is perceived, not how it is experienced by the condemned prisoner (who would be unconscious), which is ostensibly what the current constitutional argument is about. State officials also did not want to upset the public by executing people with a method essentially the same as the one veterinarians used to euthanize animals. "These days," Liptak notes, critics of the three-drug method "make the opposite argument," saying "death row inmates deserve to be treated at least as well as animals."

Then again, the choice to use lethal injection of any kind, as opposed to older, less sanitized methods, is mainly about appearances:

Some experts on executions say the debate over which chemicals to use is the wrong one. States have adopted a process that appears humane because it looks like medical treatment, [Fordham University law professor Deborah] Denno said. But looks can be deceiving, she added.
"To me," Professor Denno said, "the firing squad is the most humane and perceived to be the most brutal."

Meanwhile, A.P. reports, China plans to switch from executions by gunshot to executions by lethal injection, which ''is considered more humane," according to an official of the Supreme People's Court. Progress?

My columns on the lethal injection debate are here and here. Ron Bailey offers a somewhat different perspective here.

The Execution State, Not the Death Sentence State

jsullum@reason.com (Jacob Sullum) — Wed, 26 Dec 2007 11:39:00 EST

This year, The New York Times reports, Texas accounted for 62 percent of the country's executions. But contrary to the state's reputation, it is not especially likely to impose death sentences. It is just more likely than other states to carry them out:

According to a 2004 study by three professors of law and statistics at Cornell published in The Journal of Empirical Legal Studies, Texas prosecutors and juries were no more apt to seek and impose death sentences than those in the rest of the country.
"Texas' reputation as a death-prone state should rest on its many murders and on its willingness to execute death-sentenced inmates," the authors of the study, Theodore Eisenberg, John H. Blume and Martin T. Wells, wrote. "It should not rest on the false belief that Texas has a high rate of sentencing convicted murderers to death."

Injection Injunction

jsullum@reason.com (Jacob Sullum) — Wed, 03 Oct 2007 06:30:00 EDT

"From this day forward," Supreme Court Justice Harry Blackmun wrote in 1994, "I no longer shall tinker with the machinery of death." Although the Constitution clearly permits the death penalty, Blackmun had concluded it was unconstitutional in practice because it could not be imposed fairly and consistently.

By agreeing to consider a challenge to current methods of lethal injection, the Supreme Court has begun to tinker quite literally with the machinery of death, a repair job that promises to further slow an already creaky contraption. For opponents of the death penalty, the ultimate goal is a finding that execution is unconstitutional in practice because it cannot always be carried out instantly and painlessly.

As a matter of constitutional law, I think they're wrong. But the squeamishness reflected by the continuing quest for a perfect execution method suggests the abolitionists may ultimately win the policy debate, and perhaps they should.

On the face if it, the objections raised by Ralph Baze and Thomas Bowling, two murderers on Kentucky's death row, can be readily addressed. Indeed, their argument that Kentucky's execution procedure violates the Eighth Amendment's prohibition of "cruel and unusual punishments" hinges on the claim that it poses "an unnecessary risk of pain and suffering"—"unnecessary because it could easily be avoided."

Kentucky's method, similar to those followed by almost all of the 36 other states that use lethal injection, involves three substances: Sodium thiopental knocks the prisoner out, pancuronium bromide paralyzes his muscles, and potassium chloride stops his heart.

The main concern about this procedure is that an inadequate or improperly administered dose of thiopental (or too long a delay in the execution process) could leave a condemned man conscious while his muscles, including the ones needed for breathing and communication, stop working. In that case, he would experience suffocation, followed by the pain associated with the potassium chloride injection, without being able to signal his suffering.

Replacing thiopental with a longer-acting barbiturate and/or eliminating the pancuronium bromide would avoid this scenario. For that matter, a big dose of a longer-acting barbiturate (the method used for physician-assisted suicide in Oregon) would be enough on its own to cause death, greatly simplifying the procedure. Other possible fixes include better training of the technicians who carry out executions and the use of a brain wave monitor to verify sedation.

But any feasible execution method will be imperfect, subject to equipment malfunction and human error, and arguably inferior to available alternatives. The Supreme Court has not ruled on the constitutionality of an execution method since it upheld the use of firing squads in 1878. If it endorses the Eighth Amendment standard urged by Baze and Bowling, it will invite endless litigation over the details of each state's procedures.

It's worth recalling that state legislatures adopted lethal injection in response to the shortcomings of the electric chair and the gas chamber, which themselves were presented as more humane alternatives to hanging. All of these methods, if they're done properly, can kill a man with minimal pain, but they can also be botched, and none is pleasant to witness.

On that score, it's striking that abolitionists' accounts of botched executions often feature gruesome details that do not indicate prolonged suffering, such as involuntary defecation, smoking skin, and accidentally severed heads. If a man is already unconscious or dead, the condition of his body cannot cause him any discomfort. Why does it still upset people who see or hear about it?

This is a question that should interest conservatives who believe disgust reflects moral intuition. If the aim is to quickly and reliably kill people while inflicting as little pain as possible, it would be hard to improve on the guillotine or a close-range shot to the back of the head. Yet we shrink from such methods, perhaps because they too vividly display the reality of killing a man in cold blood.

© Copyright 2007 by Creators Syndicate Inc.

Should State Executioners Be I.D.'ed?

gillespie@reason.com (Nick Gillespie) — Tue, 05 Jun 2007 07:47:00 EDT

From an AP report:

Most of the 37 death penalty states shield execution team members' identities. Last month, Missouri lawmakers approved a bill that would allow members of execution teams to sue anyone - including news organizations - who discloses their identities. It hasn't been signed into law.
[Richard] Dieter, [head of the Death Penalty Information Center], said he believes protecting the identity of executioners helps anesthetize the public to what takes place in the death chamber.

Dieter's group, along with the ACLU, also thinks many incompetents are involved in lethal injection:

Death penalty opponents say Newton's May 24 lethal injection was the latest in a series of botched executions nationwide, and that executioners' identities and professional credentials should be open to public scrutiny.
They point to the case of Dr. Alan Doerhoff, a participant in Missouri executions who was revealed in news reports to have been sued for malpractice more than 20 times. The state is no longer using his services.
They also point to the December execution of Florida inmate Angel Diaz, who took 34 minutes - twice as long as usual - to die. Executioners administered a rare second dose of lethal chemicals to Diaz, and an autopsy found the needles had been pushed through Diaz's veins into the flesh of his arms.

Critics of both groups argue that they're really trying to ban the death penalty by other means: "They're setting up this Catch-22, saying only a doctor can do that, and knowing the doctor's association won't let them do it."

More here.

Death penalty cases have a way of going wrong, that's for sure. Jacob Sullum muses on the death penalty and lethal injection here.

Where Did Barzan Go?

jsullum@reason.com (Jacob Sullum) — Wed, 17 Jan 2007 15:42:00 EST

The botched hanging of Barzan Ibrahim al-Tikriti, Saddam Hussein's half-brother and former head (no pun intended) of the Iraqi tyrant's secret police, was like so gross, not to mention troubling for anyone who still had any confidence in the current government's competence. But it also has its lighter aspects:

"When the trapdoor opened, I realized that I was looking at the rope swinging freely, and I asked myself, 'Where did Barzan go?' " said Jaafar al-Moussawi, who was chief prosecutor at the trial that ended with the death sentences for Mr. Hussein, Mr. Ibrahim and Mr. Bandar. He added: "I thought that somehow he had gotten loose. So I moved forward toward the pit and looked down, and saw the convict Barzan lying on the ground without his head."

Like the complaints that Saddam's execution was insufficiently dignified, the flinching at the separation of Ibrahim's body from his head is both understandable and strange. If a guillotine had been the chosen means of execution, presumably this outcome would have been unobjectionable. And then the Iraqis would not have had to worry about calculating the correct drop for a given height and weight to avoid asphyxiation on the one hand and decapitation on the other. The guillotine was designed to be an especially humane method of execution that would avoid such problems. Given Saudi penal practices, I assume there's no special Muslim objection to dismemberment of criminals, but I could be wrong.

Chicago Man Burns Himself to Death; Despite His Best Efforts, War in Iraq Continues

bdoherty@reason.com (Brian Doherty) — Wed, 15 Nov 2006 11:58:00 EST

Malachi Ritscher, a dedicated documentarian of Chicago's experimental music scene, angry at himself for failing to slash Donald Rumsfeld's throat when he had the chance, burned himself to death to protest the Iraq War a couple of weeks back--"near a 25-foot-tall Loop sculpture titled "Flame of the Millennium." Apparently, the chance to vote Democratic on the then-forthcoming election day wasn't enough for the guy.

Ritscher's self-penned obituary.

A Wikipedia mini-history of politically inspired self-immolation.

A Kinder, Gentler Execution

jsullum@reason.com (Jacob Sullum) — Wed, 14 Jun 2006 15:10:00 EDT

Creators' Syndicate

Supporters and opponents of the death penalty should be united in dismay at the bizarre debate about whether lethal injection as currently practiced in the United States is a sufficiently "humane" method of execution. Under the relevant legal precedents, which hold that the death penalty is not in itself "cruel and unusual punishment" but suggest that inflicting unnecessary suffering while carrying it out might be, the official attitude toward a condemned prisoner is strangely ambivalent: We don't want to hurt him; we just want to kill him.

If someone commits a crime so heinous that he forfeits his right to live, why should we be troubled by the possibility that he might experience a few minutes of pain on his way to oblivion? And if execution is wrong, how can making the process more comfortable make it right?

The lethal injection controversy, which is heating up now that a unanimous Supreme Court has said prisoners can challenge execution methods under the Civil Rights Act of 1871, focuses on the protocol followed by almost all of the 36 states that allow capital punishment: The executioners strap the condemned prisoner to a gurney, connect an IV tube, and use a machine to administer sodium thiopental, a barbiturate that is supposed to knock him out; pancuronium bromide, which paralyzes his muscles; and potassium chloride, which stops his heart.

There is some anecdotal and autopsy evidence that prisoners do not always receive enough of the barbiturate to render them completely unconscious. Without adequate anesthesia, notes a 2005 study in the Lancet, "the condemned person would experience asphyxiation, a severe burning sensation, massive muscle cramping, and finally cardiac arrest."

To which some death penalty supporters respond: So what? "There are some people who deserve a quick but painful death," New York Law School professor Robert Blecker told The New York Times. "If you are a sadist who rapes, consciously inflicts pain and takes pleasure in it as you torture your helpless innocent victim to death, then you deserve to die quickly but painfully."

Opponents of the death penalty, for their part, may use questions about lethal injection as a delaying tactic, but they obviously can't believe an additional gram of thiopental is the difference between right and wrong. And if their challenges result in new procedures, they may ultimately make the public more comfortable with executions.

The search for kinder, gentler ways to kill people suggests many supporters of the death penalty have mixed feelings about it. They favor it in theory, but they don't want to confront the reality of it. Rather than a public hanging or decapitation, they prefer a hidden, sterilized, medicalized, mechanized approach.

I can sympathize. I've always supported the death penalty, but my doubts are growing for several reasons.

The possibility of executing innocent people, which is the sort of mistake you can't correct, understandably leads to elaborate procedural protections, which in turn make the legal process ridiculously slow. Clarence E. Hill, the Florida cop killer whose lethal injection challenge the Supreme Court allowed to continue, was convicted of murder 23 years ago.

Because the death penalty is so time-consuming and expensive to pursue, it's the exception rather than the rule for murderers. Over all, there is little rhyme or reason to decisions about which ones will be executed.

More fundamentally, I wonder if we're dodging the central issue: Granted that some people deserve to die, should the state be empowered to kill them in cold blood?

There's an undeniable intuitive appeal to the biblical injunction, "Whosoever sheds man's blood, by man shall his blood be shed." At a time when there were no prisons to incapacitate murderers, this approach certainly was better than the alternative. But now that murderers can be locked away for life, I'm not sure it is anymore, especially given the arbitrary results of the government's system for choosing between these two options.

Killing Me Softly

rbailey@reason.com (Ronald Bailey) — Fri, 28 Apr 2006 11:04:00 EDT

Convicted cop killer Clarence Hill had his day in the U.S. Supreme Court this week as the Justices heard arguments that executing him by lethal injection would violate the 8th Amendment's prohibition against inflicting cruel and unusual punishments. Hill's lawyer claimed that that the State of Florida could not guarantee that Hill would not suffer excruciating pain from the three drugs used together to execute first degree murderers.

Lethal injection was devised as a "humane" method of execution by an Oklahoma anesthesiologist Dr. Stanley Deutsch in 1977. Deutsch's procedure involves rendering a murderer unconscious with fast-acting sodium pentothal. Typically unconsciousness occurs about 60 seconds after the drug is administered. Next comes an injection of pancuronium that that paralyzes the muscles and stops breathing in 3 to 5 minutes. And finally potassium chloride is injected which stops the murderer's heart. Death occurs usually in seven minutes to ten minutes. Texas was the first state to use it to execute a murderer in 1982. Since then it has become the overwhelmingly popular method of execution in the 37 states that have the death penalty.

The humaneness of lethal injection was brought into question by an article in the April 16, 2005 issue of the British medical journal The Lancet. The article argued that a postmortem analysis of blood from 43 of 49 executed prisoners indicated that they may not have received enough sodium pentothal to insure unconsciousness. In which case, the murderers might have felt themselves asphyxiating after being injected with pancuronium and as well as an intense burning sensation in their veins as the potassium chloride flowed toward their hearts. "Failures in protocol design, implementation, monitoring and review might have led to the unnecessary suffering of at least some of those executed," concluded the Lancet article.

Once The Lancet article appeared, the courts began to see a spate of defense arguments that lethal injection violates the 8th Amendment. Now the executions of several murderers have been put on hold while the Supreme Court mulls over the Clarence Hill case. Let's take a brief look at their three such murderers' crimes.

On October 19, 1982, Clarence Hill stole a pistol and an automobile in Mobile, Alabama. Later that day, Hill and his accomplice, Cliff Jackson, drove to Pensacola and robbed a savings and loan association at gunpoint. When the police arrived during the robbery, Hill fled out the back of the savings and loan building. Jackson exited through the front door, where he was apprehended immediately. Hill sneaked back and shot officers Stephen Taylor and Larry Bailly while they were handcuffing Jackson. A gun battle ensued, during which Hill received five bullet wounds. Officer Taylor died.

The execution of another Florida murderer, Arthur Rutherford, is also on hold until the Supreme Court issues a decision in the Hill case. Arthur was convicted for the Aug. 22, 1985, murder of a 63 year old widow Stella Salamon. Salamon had hired Rutherford as a handyman. She was found dead with her head submerged in her bathtub. Salamon had a broken arm, bruises on her face and arms, and three severe head wounds. The medical examiner concluded Salamon died from strangling. Police found Rutherford's fingerprints and palm prints in the bathroom where Salamon was killed. Rutherford forged and cashed a $2000 check from Salamon's account.

And yet one more murderer, Michael Morales, has convinced a federal judge in California that lethal injection might cause him to suffer and so his scheduled execution has been delayed. The California Victim Services report on his crime makes chilling reading. On January 8, 1981, twenty-one-year-old Michael Morales murdered and raped seventeen year-old Terri Lynn Winchell, with his nineteen-year-old cousin, Rick Ortega. The two lured Winchell to a remote area where Morales tried to strangle her to death with his belt which broke as she struggled. Morales then took out a hammer and beat Terri into unconsciousness, crushing her skull and leaving 23 wounds in her skull. Morales dragged Terri face-down across from the car into a vineyard. The report continues: "Morales then raped her while she lay unconscious. Morales then started to leave, but went back and stabbed Terri four times in the chest to make sure she died. Morales then left Terri, calling her "a fucking bitch," as he walked away. Terri died from both the head and chest wounds. Her body was left in the vineyard naked from the waist down, with her sweater and bra pulled up over her breasts."

Hill, Rutherford and Morales had no concern about the suffering of their victims nor about the anguish of their victims' loved ones. It is nice that states have sought to reduce the suffering and pain experienced by murderers when they are executed, but historically, execution by much less peaceful means, including death by hanging, firing squad and electrocution were not found to be cruel and unusual. The current attack on lethal injection is an attempt by death penalty opponents to get the courts to outlaw the punishment they have been unable to persuade their fellow Americans is wrong. Murder is such a horrifying violation of decency that the most fitting punishment is to be completely cut out of the life of the community.

I frankly do not care if pre-meditated murderers experience a few moments of pain on their way to well-deserved oblivion. However, if the only way to guarantee that the death remains an option for punishing vicious killers is to further insure that they feel no pain when they are executed, it should be easy to remedy the situation. First, simply increase the dose of sodium pentothal. That alone would eventually kill them. And if absolutely necessary, other states could do what North Carolina just did when it executed Willie Brown earlier this month. In March 1983, Brown kidnapped and killed a convenience store clerk and took $90 from the cash register. During his execution, North Carolina prison officials arranged to have a doctor and nurse evaluate Brown's level of consciousness on a brain wave monitor in a room adjacent to the death chamber. If the machine had indicated that Brown was not completely unconscious, additional sedative could have been injected.

As harsh as it sounds, if lethal injection is good enough to end the suffering of a beloved pet, it's probably too good for a pre-meditated murderer.

Letters

Thu, 01 Nov 2001 00:00:00 EST

Global Village or Pillage?

The July REASON contained several articles defending corporate capitalism in the emerging global world order. Not bad, but consider this: Since the fall of the Berlin Wall, capitalism has triumphed globally. Yet we are not living in a freer world, as you document so well. The U.S., via its wars on drugs and terrorism, is turning the world into a globalized police state. Clearly, global capitalism does not equal global liberty. People who have wealth and power will take any steps to safeguard their interests, including and especially initiating force against upstarts who might be foolish enough to believe in democracy or dissent.

REASON does not deal with the era's underlying economic issues: the breakdown of the Bretton Woods system, the internationalization of finance, the maquilas, the connections between American politicians and corporations, to name a few. Instead, we get some perfunctory support for free trade without any context, as if all that matters are slogans that sound vaguely in tune with laissez faire. The fact that free trade is enforced by death squads in Colombia and rubber bullets in the U.S. goes by the boards.

As for "the demonstrators," while frequently described as "misguided" or "confused," they have a fairly cogent message: Fight against concentrations of transnational power, fight against growing repression and the prison-industrial complex, and fight against the homogenization of politics, as represented by the de facto one party system in the U.S.

Joseph Miranda
Northridge, CA

All the Rage

I thoroughly enjoyed Ronald Bailey's article on the neo-Luddite movement ("Rage Against the Machines," July). Among the many important points he raises is the notion that if we want to reduce inappropriate corporate power, we must eliminate the power of the government to dole out subsidies and protective tariffs. Many people fail to recognize this, imagining that government power acts as a balance to corporate power.

One small quibble regarding Bailey's discussion of the "precautionary principle": The critique doesn't go far enough. Bailey suggests that a scientist could not "prove that a biotech crop was completely safe without the field trials" that the principle would ban.

In fact, no crop -- indeed, no technology -- has ever been proven "completely safe," and none ever will be. The very notion of complete safety is a specious one. The hypothesis "x is completely safe" cannot be proven because it is a universal statement. Universals can only be dis-proven or, to use Karl Popper's word, falsified. Scientists endeavour to falsify their theories, but no amount of field testing will ever prove anything is completely safe.

Bradley Doucet
Montreal, Quebec
Canada

There are close similarities between neo-Luddites and the genocidal Khmer Rouge of Cambodia. The Khmer Rouge were deep ecologists par excellence. They asserted that the cities were dens of sin and corruption, while virtue resided in the countryside. They therefore depopulated the cities, forcing residents into the country at gunpoint.

They compelled these people to return to the land, and to live in remote agricultural villages where they grew organic food without recourse to pesticides or farm equipment. Technology and trade were outlawed. When the crops failed, people starved. The Khmer Rouge refused to relieve the hunger by importing food. Anyone who complained was shot. In this fashion, millions died.

The Khmer Rouge based their program on the doctrines of French intellectuals of the left, whose points of view closely resemble those of the neo-Luddites. Thus, in arguing against today's Luddites, it is worth noting that their program indeed was carried out in Cambodia. It brought the near-suicide of that nation.

T. A. Heppenheimer
Fountain Valley, CA

What a rotten article, Ron Bailey. Surely you're capable of better work. Your willful misrepresentations and "grizzled hippie" stereotyping, combined with your substitution of assertion for evidence, all manage to make the case that technophiles like yourself really aren't in the habit of critical thinking.

The neo-Luddites and others with radical critiques of technology deserve hard-hitting but thoughtful criticism, and the readers of REASON deserve better than what they got from you.

Dave Gross
San Francisco, CA

Enemies of Trade

I agree with Evan McElravy: The FTAA protesters in Quebec were misguided, as was the police-state response ("Enemies of Trade," July). But I find a few things in his article troubling. First, it is difficult to imagine that a responsible government would not have police in place and prepared for violence, given the earlier havoc in Seattle. Were I a property owner in Quebec, I would have been happy to have police there. That said, McElravy is right that police actions must be defined by the particular situation, not by past events.

What also troubles me is McElravy's statement, "The case for free trade has been made primarily by cretinous conservative politicians and pundits, who seldom resist ridiculing earnest youngsters looking for a better world." This is needlessly ad hominem and could easily be turned around: "The case has been made primarily by cretinous youngsters and socialists, who seldom resist ridiculing earnest conservative politicians looking for a better world." After all, it was not conservative politicians who advanced political discourse by wearing masks and walking the streets chanting "Fuck George W. Bush."

Richard Manhard
Ashburn, VA

I enjoyed Evan McElravy's eyewitness account of the Quebec protests from a non-leftist perspective. However, I feel compelled to point out one major flaw. Protesters against free trade are no less misinformed than free trade advocates. Among the few Ph.D.s in economics who have studied the issue for decades, there is no consensus. Granted, the majority of economists in the U.S. favor free trade, but that does not mean there isn't controversy. Moreover, it was not too long ago that Keynesian and Marxist economics held equal sway in the world's universities. Fifty or 100 years from now, some other school of economic thought will likely hold sway.

As we all should remind ourselves periodically, macroeconomics is as much art as science. It is much too complicated for one side in a debate to claim that the other side is completely ignorant of the facts.

David Levy
Vienna, VA

Evan McElravy replies: In response to Mr. Manhard, the week after the Quebec protest, I attended a Marxist-Leninist conference where one speaker, holding a photo of police beating protestors, intoned, "This is what their democracy looks like, this is the face of their system!" Though a malicious exaggeration from a fringe group, it augurs ominously for the future, as more and more people -- particularly young people -- seem to associate economic liberalization with political repression. In this climate, it doesn't seem too onerous to ask pro-trade voices to take the high road. Is it really useful to suggest that the officer who killed the protestor in Genoa should be feted on TV, as did a recent Wall Street Journal piece?

As for protecting property, it is a difficult balance. Worth noting, however, is that, in the exposed area outside the Quebec barricade, there was virtually no damage to private property.

As to Mr. Levy, economics may be the "dismal science," but REASON's position has always been that not only is the empirical evidence on the side of expanded trade but that, more importantly, there is no moral basis for interfering with the right of the world's people to engage each other as they please, including via trade.

I call "uninformed" the bulk of protestors whose sole source of information was interest group propaganda brochures -- not a sufficient education on the issue.

Campaign Finance

Michael Lynch's interview with Federal Elections Commissioner Bradley Smith was thought-provoking ("Professor Smith Goes to Washington," July). Unfortunately, Smith is a poor man's Captain Ahab, obsessed with two giant red herrings in the election reform debate: incumbents and advertising.

Congressional turnover rates are ridiculously low. But the identity of representatives hardly matters, compared to their politics. As long as soft money is unlimited, incumbents who anger the rich and powerful can be replaced with toadies. Incumbency is a result of this problem, not its cause. The deeper problem is private control of the election process, which determines who runs in the first place, and who wins almost every time.

Smith also harbors a naive faith that advertising can compare to news, pamphlets, or public debates as a source of reliable information. Advertising reaches more people, but its claims are dubious, its arguments usually specious, and its packaging paramount. Smith ignores the perverse incentives created by advertising dollars. News coverage costs the networks money, but advertising makes them money. So TV news coverage of political campaigns drops precipitously, while advertising sales increase to compensate. This fattens the media companies, closes the system (most people can't afford TV ads), and trivializes mainstream political debate.

McCain-Feingold does curtail some freedoms. This is not illegitimate, because it thereby creates others with broader scope. Smith should weigh competing freedoms, not ignore half the competitors.

Avery Kolers
Louisville, KY

At no time have I ever said, "Hey, if McCain-Feingold screws up elections even more, great. It'll convince people we need to have public financing," the quote attributed to me in Michael Lynch's interview. The fraudulent quotation, paraphrased from an out-of-context quote that appeared in a story on National Review Online, suggests that I am cynically supporting McCain-Feingold because I believe it will make our campaign finance system even worse than it is now, leaving nothing but public financing as a reasonable solution. Even the original quote says nothing of the sort.

I do believe that a public financing program for federal elections would best serve our fundamental democratic values. But I also believe that the provisions in the McCain-Feingold bill eliminating soft money and regulating sham issue ads will represent huge improvements in the current campaign finance system. I don't believe there is any credible evidence that the bill will hobble the political parties or leave candidates powerless to respond to interest groups, and I would not support the bill if I did.

Deborah Goldberg
Brennan Center for Justice
New York University School of Law

Michael W. Lynch replies: My apologies to Ms. Goldberg, who feels Mr. Smith's interpretation of her quote was unfair. The interview does make it clear that Mr. Smith was paraphrasing her original quote. His comment read, "she essentially told National Review Online...." For the record, here's what she actually said: "If candidates are concerned about spending by independent groups, it might make them think more seriously about public financing."

Sentenced to Death

I very much enjoyed Cathy Young's "McVeigh to MacBeth" (July). I am dismayed by rightists who argue for capital punishment, particularly when they're in the "Government as an Instrument for Moral Good" school of thought. The argument that "moral rectitude demands collective action" has been at the core of almost all of the abuses of government power recorded throughout history.

How do death penalty activists rationally justify entitling the collective self to do what we would never permit individuals to do? Except in the very narrow cases of self-defense or defending our borders, we as citizens are forbidden to take up force of any kind against each other, no matter how just our cause. Why is it that if we get together and call it a "legal system," this behavior suddenly is legitimate? It's nothing more than mob rule.

Tim Daneliuk
tundra@tundraware.com

Cathy Young properly takes Paul Cassel to task for his insistence that the exoneration of innocents on death row proved that "the system worked." The resources currently devoted to investigating and exposing cases of innocent people on death rows around the country are extremely limited, so it's rare that anyone tries to prove the innocence of people who have already been executed -- such an investigation won't directly save lives. But investigations of the executed might give us one thing: the grisly footnote to prove to death penalty apologists how well the system might not have worked in the past.

Dan Karlan
Waldwick, NJ

Cathy Young's article missed the point completely. Revenge is in no way a moral action. The only moral justification for capital punishment -- or any killing of a human being, for that matter -- is self-defense. And when someone is so dangerous that he will likely be a deadly threat to others in the future, then death may be the moral solution.

Dan Jones
Chickamauga, GA

Unconstitutional Copyright

I am surprised that Nick Gillespie disregards property rights to suggest that "certain characters and texts have entered the public domain in fact, if not in law" ("Tomorrow Is Another Day in Court," July).

We know when and by whom Gone With the Wind was created. Immense popularity and durability does not imply that a work has "entered the public domain in fact, if not in law." If it did, then the entire publishing, recording, and filmmaking industries would not exist. There would be no reason for authors, composers, filmmakers, and the like to create. Absent a method of controlling distribution and earning a livelihood, only amateurs would do this work for their own pleasure.

Capitalist democracies lack the patronage system of aristocratic Europe in the prior two millennia. Instead, the market supports those who produce works of intellectual and artistic value. If artists don't have the constitutional guarantee that their property can, like a house, be freely sold or licensed and passed from one generation to another, they will not be able to afford to create works of art.

As a composer, I take great solace in the fact that my property rights are protected by the law. Please contemplate this issue before defending a self-styled "parodist" who appears to be a plagiarist by any reasonable measure. We are all diminished when property rights are diluted, "re-imaginings" of bygone eras aside. Let Alice Randall create her own "characters and texts" about the slavery and reconstruction eras, if she wants to "explode myths." Or let her wait until 2036.

Jeffrey Hoffman
New York, NY

In discussing The Wind Done Gone, Nick Gillespie should ask more aggressively what right, under the Constitution, does a court have to block a derivative work 63 years after the original was published?

The correct answer should be, "None!" The copyright exception to the First Amendment (Article I, Section 8, clause 8) is only for a "limited" period and only to the extent that it "promotes" the arts. Congress acted unconstitutionally when it removed a limited term from copyright (56 years), replacing it with the indefinite life-plus-50-years (extended just recently to life-plus-70-years). There is no reason whatsoever to believe this extension promotes the arts; a potential artist who does not feel sufficiently motivated by the prospect of 56 years of royalties is not going to be lured by an even more conjectural payoff 50 years after his death. Instead, this unreasonable extension of copyright suppresses the arts, by forcing books like Ms. Randall's into expensive court battles.

Hugo S. Cunningham
Boston, MA

Nick Gillespie replies: As Hugo Cunningham points out, intellectual property rights, unlike other property rights, involve arbitrarily set time limits designed to give creators and inventors an incentive to produce work. So Jeffrey Hoffman is wrong to assert that intellectual property can, "like a house," be passed on indefinitely. I also think he is mistaken that, absent copyright in its current form, artistic production would stop. In any case, as most readers know, a higher court allowed Alice Randall's The Wind Done Gone to be sold in bookstores, to no apparent injury to Margaret Mitchell's literary estate.

Free Radical

info@reason.com (Rhys Southan) — Thu, 01 Nov 2001 00:00:00 EST

In the roughly two decades since British writer Christopher Hitchens arrived in the U.S., he has emerged as a singularly insightful, provocative, and impossible-to-ignore critic of American politics and culture. His regular columns for the left-wing think magazine The Nation and the glitzy celebrity sheet Vanity Fair stand out in both publications for their clarity of thought and prose. He famously served as one of the models for Peter Fallows, the memorable dissipated Brit journalist in Tom Wolfe’s Bonfire of the Vanities. His television appearances are legendary, none perhaps more so than his contretemps with Charlton Heston during CNN’s live coverage of the Gulf War. Hitchens insisted that Heston list what countries have borders with Iraq. After Heston flubbed the answer, he upbraided the journalist for "taking up valuable network time giving a high-school geography lesson." To which Hitchens replied: "Oh, keep your hairpiece on."

Though the 52-year-old Hitchens clearly enjoys mocking the famous and the powerful -- he once derided the House of Windsor for "sucking off [Britain’s] national tit" -- he’s no mere gadfly. In books such as The Missionary Position, No One Left to Lie To, and The Trial of Henry Kissinger, he has crafted thoughtful and provocative extended indictments of Mother Teresa, Bill Clinton, and the former secretary of state and Nobel Peace Prize winner; his recent collection, Unacknowledged Legislation: Writers in the Public Sphere, was reviewed in the July issue of REASON. (See "Literary Legislators.")

Hitchens’ willingness to put moral principles before political alliances has earned him the wrath of ideological compatriots. When he signed an affidavit contradicting testimony by Clinton administration aide Sidney Blumenthal that the president had never circulated tales of Monica Lewinsky as a crazed stalker, Hitchens was attacked as a liar and a snitch in the pages of The Nation and almost ended his relationship with the magazine.

Hitchens’ newest book is Letters to a Young Contrarian: The Art of Mentoring (Basic Books), in which he exhorts youth to remain both principled and oppositional, freethinkers in the best Enlightenment tradition. Given such thoughts, it’s not surprising that Hitchens’ next book will be about George Orwell. Nor is it surprising to find him increasingly interested in alternatives to orthodox left-wing thinking. A regular reader of REASON -- a few years back, he wrote that he gets "more out of reading...REASON than I do out of many ‘movement’ journals" -- Hitchens has become increasingly interested in the libertarian critique of state power and its defense of individual liberty. "I am," he says, "much more inclined to stress those issues...to see that they do possess, with a capital H and a capital I, Historical Importance."

Appropriately, Rhys Southan, REASON’s Burton Gray Memorial Intern and the youngest member of our staff, interviewed Hitchens in late August.

REASON: How were you different as a young contrarian than you are as an older one?

Christopher Hitchens: The book forces me to ask that question, and yet I don’t quite. I must say that I’ve always found the generational emphasis on the way that my youth was covered to be very annoying. There were a lot of other people born in April 1949, and I just don’t feel like I have anything in common with most of them. I forget who it was who said that generation -- age group, in other words -- is the most debased form of solidarity. The idea of anyone who was born around that time having an automatic ticket to being called "a ’60s person," is annoying to me. Especially membership in the specific group that I could claim to have been a part of: not just of "the ’60s," but of 1968. There’s even a French term for it: soixante-huitard. You can now guess roughly what the political parameters were for me at the time. And you can also guess at least one of the sources of my irritation, which is that by generational analysis, Bill Clinton and I are of the same kidney and same DNA. I repudiate that with every fiber.

But I’m postponing an answer to your question. In those days, I was very much in rebellion against the state. The state had presented itself to [my fellow protestors and me], particularly through the Vietnam War, in the character of a liar and a murderer. If, at a young age, you are able to see your own government in that character, it powerfully conditions the rest of your life. I was taught very early on that the state can be, and is, a liar and a murderer. Yet I have to concede that I didn’t think there was a problem necessarily with the state, or government, or collective power.

I had been interested in libertarian ideas when I was younger. I set aside this interest in the ’60s simply because all the overwhelming political questions seemed to sideline issues of individual liberty in favor of what seemed then to be grander questions. I suppose what would make me different now is that I am much more inclined to stress those issues of individual liberty than I would have been then. And to see that they do possess, with a capital H and a capital I, Historical Importance, the very things that one thought one was looking for.

REASON: When did your focus change? In Letters, you write that you’ve "learned a good deal from the libertarian critique" of the idea that the individual belongs to the state and you praise a friend who taught you that "the crucial distinction between systems...was no longer ideological. The main political difference was between those who did, and those who did not, believe that the citizen could -- or should -- be the property of the state."

Hitchens: It’s hard to assign a date. I threw in my lot with the left because on all manner of pressing topics -- the Vietnam atrocity, nuclear weapons, racism, oligarchy -- there didn’t seem to be any distinctive libertarian view. I must say that this still seems to me to be the case, at least where issues of internationalism are concerned. What is the libertarian take, for example, on Bosnia or Palestine?

There’s also something faintly ahistorical about the libertarian worldview. When I became a socialist it was largely the outcome of a study of history, taking sides, so to speak, in the battles over industrialism and war and empire. I can’t -- and this may be a limit on my own imagination or education -- picture a libertarian analysis of 1848 or 1914. I look forward to further discussions on this, but for the moment I guess I’d say that libertarianism often feels like an optional philosophy for citizens in societies or cultures that are already developed or prosperous or stable. I find libertarians more worried about the over-mighty state than the unaccountable corporation. The great thing about the present state of affairs is the way it combines the worst of bureaucracy with the worst of the insurance companies.

What I did was to keep two sets of books in my mind. I was certainly interested in issues that have always interested libertarians -- defining what the limits to state power are. The first political issue on which I’d ever decided to take a stand was when I was in my teens and before I’d become a socialist. It was the question of capital punishment. A large part of my outrage toward capital punishment was exactly the feeling that it was arrogating too much power to the government. It was giving life-and-death power to the state, which I didn’t think it deserved, even if it could use it wisely. I was convinced it could not and did not.

In the mid-1970s, I first met someone whom I’ve gotten to know better since, Adam Michnik, one of the more brilliant of the Polish dissidents of the time. Michnik made the luminous remark you quoted about the citizen and his relation to the state. I remember thinking, "Well, that’s a remark that’s impossible to forget."

REASON: So, do you still consider yourself a socialist?

Hitchens: Brian Lamb of C-SPAN has been interviewing me on and off for about 20 years, since I’d first gone to Washington, which is roughly when his own Washington Journal program began. As the years went by, he formed the habit of starting every time by saying: "You haven’t been on the show for a bit. Tell me, are you still a socialist?" And I would always say, "Yes, I am." I knew that he hoped that one day I would say, "No, you know what, Brian, I’ve seen the light, I’ve seen the error of my ways." And I knew that I didn’t want to give him this satisfaction, even if I’d had a complete conversion experience.

The funny thing is that, recently, he stopped asking me. I don’t know why. And just about at that point, I had decided that however I would have phrased the answer -- I didn’t want to phrase it as someone repudiating his old friends or denouncing his old associations -- I no longer would have positively replied, "I am a socialist."

I don’t like to deny it. But it simply ceased to come up, as a matter of fact. And in my own life there’s a reason for that.

There is no longer a general socialist critique of capitalism -- certainly not the sort of critique that proposes an alternative or a replacement. There just is not and one has to face the fact, and it seems to me further that it’s very unlikely, though not impossible, that it will again be the case in the future. Though I don’t think that the contradictions, as we used to say, of the system, are by any means all resolved.

REASON: Many socialists have a radically anti-authoritarian disposition, even though the policies they would enact end up being authoritarian. What causes this divide?

Hitchens: Karl Marx was possibly the consummate anti-statist in his original writings and believed that the state was not the solution to social problems, but the outcome of them, the forcible resolution in favor of one ruling group. He thought that if you could give a name to utopia, it was the withering away of the state. Certainly those words had a big effect on me.

The reason why people tend to forget them, or the left has a tendency to forget them in practice, has something to do with the realm of necessity. If you make your priority -- let’s call it the 1930s -- the end of massive unemployment, which was then defined as one of the leading problems, there seemed no way to do it except by a program of public works. And, indeed, the fascist governments in Europe drew exactly the same conclusion at exactly the same time as Roosevelt did, and as, actually, the British Tories did not. But not because the Tories had a better idea of what to do about it. They actually favored unemployment as a means of disciplining the labor market.

You see what I mean: Right away, one’s in an argument, and there’s really nothing to do with utopia at all. And then temporary expedients become dogma very quickly -- especially if they seem to work.

Then there’s the question of whether or not people can be made by government to behave better. They can certainly be made to behave worse; fascism is the proof of that, and so is Stalinism. But a big experience, and this gets us a bit nearer the core of it, a very big influence on a number of people my age was the American civil rights movement, and the moral grandeur of that and also the astonishing speed and exclusiveness of its success. A lot of that did involve asking the government to condition people’s behavior, at least in the sense of saying there are certain kinds of private behavior that are now not lawful. And there seemed to be every moral justification for this, and I’m not sure I wouldn’t still say that there was.

But it’s become too easily extended as an analogy and as a metaphor -- and too unthinkingly applied. In my memory, the demand of the student radical was for the university to stop behaving as if it was my parent, in loco parentis. They pretend they’re your family, which is exactly what we’ve come here to get away from. We don’t want the dean telling us what we can smoke or who we can sleep with or what we can wear, or anything of this sort. That was a very important part of the ’60s.

Now you go to campus and student activists are continuously demanding more supervision, of themselves and of others, in order to assure proper behavior and in order to ensure that nobody gets upset. I think that’s the measure of what I mean.

REASON: Does that explain Ralph Nader’s popularity among students during last year’s election? He came across as a contrarian in his campaign, and became a hero to a lot of college students. You supported him, too. But he’s essentially a curmudgeon with a conservative disposition who advocated lots of regulation.

Hitchens: If I separate in my mind what it is that people like about Ralph, I’m certain the first thing is this: There are people who support him who don’t agree with him politically at all, or have no idea of what his politics are. I would be hard-put to say that I knew what his politics were, but the quality that people admired of him was certainly his probity, his integrity. It’s just impossible to imagine Ralph Nader taking an under-the-table campaign donation or a kickback. Or arranging to have someone assassinated, or any of these kinds of things. That’s not a small thing to say about somebody.

You’re right that his approach to life is in many ways a very conservative one. He leads a very austere, rather traditional mode of life. I met him first about 20 years ago. He contacted me, in fact, as he’d admired something I’d written. We met, and the main outcome of this was a 20-year campaign on his part to get me to stop smoking. In fact, he even offered me a large-ish sum of money once if I would quit. Almost as if he were my father or my uncle. Yes, generally speaking, he is a believer in the idea that government can better people, as well as condition them. But he’s not an authoritarian, somehow. The word would be paternalist, with the state looking after you, rather than trying to control you. But there’s some of us who don’t find the state, in its paternal guise, very much more attractive. In fact, it can be at its most sinister when it decides that what it’s doing is for your own good.

I certainly wish I wasn’t a smoker and wish I could give it up. But I’m damned if I’ll be treated how smokers are now being treated by not just the government, but the government ventriloquizing the majority. The majoritarian aspect makes it to me more repellent. And I must say it both startles and depresses me that an authoritarian majoritarianism of that kind can have made such great strides in America, almost unopposed. There’s something essentially un-American in the idea that I could not now open a bar in San Francisco that says, "Smokers Welcome."

REASON: The right and the left have joined together in a war against pleasure. What caused this?

Hitchens: The most politically encouraging event on the horizon -- which is a very bleak one politically -- is the possibility of fusion or synthesis of some of the positions of what is to be called left and some of what is to be called libertarian. The critical junction could be, and in some ways already is, the War on Drugs.

The War on Drugs is an attempt by force, by the state, at mass behavior modification. Among other things, it is a denial of medical rights, and certainly a denial of all civil and political rights. It involves a collusion with the most gruesome possible allies in the Third World. It’s very hard for me to say that there’s an issue more important than that at the moment. It may sound like a hysterical thing to say, but I really think it’s much more important than welfare policy, for example. It’s self-evidently a very, very important matter. Important enough, perhaps, to create this synthesis I’ve been looking for, or help to do that.

REASON: What are the signs that political fusion between some libertarians and some leftists is happening?

Hitchens: One reason the War on Drugs goes on in defiance of all reason is that it has created an enormous clientele of people who in one way or another depend upon it for their careers or for their jobs. That’s true of congressmen who can’t really get funding for their district unless it’s in some way related to anti-drug activity. There’s all kinds of funding that can be smuggled through customs as anti-drug money -- all the way to the vast squads of people who are paid to try to put the traffic down, and so forth. So what’s impressive is how many people whose job it has been to enforce this war are coming out now and saying that it’s obviously, at best, a waste of time.

The other encouraging sign is that those in the political-intellectual class who’ve gone public about it have tended to be on what would conventionally have been called the right. Some of them are fairly mainstream Republicans, like the governor of New Mexico. National Review, under the ownership of William Buckley, published a special issue devoted to exposing the fallacies and appalling consequences of the War on Drugs. I thought that should have been The Nation that did that. I now wouldn’t care so much about the precedence in that. It wouldn’t matter to me who was first any longer. I don’t have any allegiances like that anymore. I don’t ask what people’s politics are. I ask what their principles are.

REASON: Has your own shift in principles changed your relationship with The Nation?

Hitchens: For a while it did. I thought at one point that I might have to resign from the magazine. That was over, in general, its defense of Bill Clinton in office, which I still think was a historic mistake made by left-liberals in this country. It completely squandered the claim of a magazine like The Nation to be a journal of opposition. By supporting Clinton, The Nation became a journal more or less of the consensus. And of the rightward moving consensus at that, because I don’t think there’s any way of describing Bill Clinton as an enemy of conservatism.

I’d been made aware by someone in the Clinton administration of what I thought was criminal activity. At any rate, the administration engaged in extraordinarily reprehensible activity by way of intimidating female witnesses in an important case. I decided that I would be obstructing justice if I’d kept the evidence to myself. That led to me being denounced in The Nation as the equivalent of a McCarthyite state invigilator, which I thought was absurd. Where I live, the White House is the government. So if one attacks it, one isn’t reporting one’s friends to the government, so to speak, by definition.

The controversy shows the amazing persistence of antediluvian categories and habits of thought on the left, and these were applied to me in a very mendacious and I thought rather thuggish way. I had to make an issue of it with the magazine, and I was prepared to quit. But we were able to come to an agreement. They stopped saying this about me, in other words.

But there is no such thing as a radical left anymore. �a n’existe pas. The world of Gloria Steinem and Jesse Jackson, let’s say, has all been, though it doesn’t realize it, hopelessly compromised by selling out to Clintonism. It became, under no pressure at all, and with no excuse, and in no danger, a voluntary apologist for abuse of power.

It couldn’t wait to sell out. It didn’t even read the small print or ask how much or act as if it were forced under pressure to do so. I don’t think they’ve realized how that’s changed everything for them. They’re not a left. They’re just another self-interested faction with an attitude toward government and a hope that it can get some of its people in there. That makes it the same as everyone else -- only slightly more hypocritical and slightly more self-righteous.

REASON: In Letters to a Young Contrarian, you talk about how it was libertarians -- specifically Milton Friedman and Alan Greenspan -- who did the most to end the draft by persuading President Nixon’s special commission on the matter that mandatory military service represented a form of slavery. Is it the contrarians from unexpected ranks that enact real change?

Hitchens: Absolutely. Mr. Greenspan and Mr. Friedman used my mantra correctly by saying the draft would make the citizen the property of the state. To argue against them, however, I’ll quote someone whom neither of them particularly likes, but whom I think they both respect. John Maynard Keynes said somewhere -- I think in Essays in Persuasion -- that many revolutions are begun by conservatives because these are people who tried to make the existing system work and they know why it does not. Which is quite a profound insight. It used to be known in Marx’s terms as revolution from above.

It would indeed come from enlightened and often self-interested members of the old regime who perfectly well knew that the assurances being given to the ruler were false. That the system didn’t know what was going on or how to provide for itself, but couldn’t bear to acknowledge that fact and had no means for self-correction. That is indeed how revolutions often begin.

REASON: What do you think about the anti-globalization movement? Is it contrarian or radical in your sense?

Hitchens: There was a long lapse where it seemed that nobody took to the streets at all, and where the idea of taking to the streets had begun to seem like something really from a bygone era. It came back very suddenly, initially in Seattle. In some kind of promethean way, the idea was passed on and contained, perhaps like fire in a reed, only to break out again.

In a way I should have been pleased to see that, and I suppose in some small way I was, but a lot of this did seem to me to be a protest against modernity, and to have a very conservative twinge, in the sense of being reactionary. It’s often forgotten that the Port Huron Statement, the famous Students for a Democratic Society document, was in part a protest against mechanization, against bigness, against scale, against industrialization, against the hugeness and impersonality of, as it thought of it, capitalism. There were elements of that that I agreed with at the time, particularly the interface between the military and the industrial [segments of society].

I do remember thinking that it had a sort of archaic character to it, exactly the kind of thing that Marx attacked, in fact, in the early critiques of capitalism. What SDS seemed to want was a sort of organic, more rural-based, traditional society, which probably wouldn’t be a good thing if you could have it. But you can’t, so it’s foolish to demand such a thing. This tendency has come out as the leading one in what I can see of the anti-globalization protesters. I hear the word globalization and it sounds to me like a very good idea. I like the sound of it. It sounds innovative and internationalist.

To many people it’s a word of almost diabolic significance -- as if there could be a non-global response to something.

REASON: This anti-global approach seems especially surprising coming from the left.

Hitchens: The Seattle protesters, I suppose you could say, in some ways came from the left. You couldn’t say they came from the right, although a hysterical aversion to world government and internationalism is a very, very American nativist right-wing mentality. It’s the sort that is out of fashion now but believe me, if you go on radio stations to talk about Henry Kissinger, as I have recently, you can find it. There are people who don’t care about Kissinger massacring people in East Timor, or overthrowing democracy in Chile, or anything of that sort. But they do believe he’s a tool of David Rockefeller, and the Trilateral Commission, and the secret world government. That used to be a big deal in California in the ’50s and ’60s with the John Birch Society.

There are elements of that kind of thing to be found in the anti-globalization protests, but the sad thing is that practically everything I’ve just said wouldn’t even be understood by most of the people who attend the current protests, because they wouldn’t get the references.

REASON: You’ve called yourself a socialist living in a time when capitalism is more revolutionary.

Hitchens: I said this quite recently. I’m glad you noticed it. Most of the readers of The Nation seemed not to have noticed it. That was the first time I’d decided it was time I shared my hand. I forget whether I said I was an ex-socialist, or recovering Marxist, or whatever, but that would have been provisional or stylistic. The thing I’ve often tried to point out to people from the early days of the Thatcher revolution in Britain was that the political consensus had been broken, and from the right. The revolutionary, radical forces in British life were being led by the conservatives. That was something that almost nobody, with the very slight exception of myself, had foreseen.

I’d realized in 1979, the year she won, that though I was a member of the Labour Party, I wasn’t going to vote for it. I couldn’t bring myself to vote conservative. That’s purely visceral. It was nothing to do with my mind, really. I just couldn’t physically do it. I’ll never get over that, but that’s my private problem.

But I did realize that by subtracting my vote from the Labour Party, I was effectively voting for Thatcher to win. That’s how I discovered that that’s what I secretly hoped would happen. And I’m very glad I did. I wouldn’t have been able to say the same about Reagan, I must say. But I don’t think he had her intellectual or moral courage. This would be a very long discussion. You wouldn’t conceivably be able to get it into a REASON interview.

Marx’s original insight about capitalism was that it was the most revolutionary and creative force ever to appear in human history. And though it brought with it enormous attendant dangers, [the revolutionary nature] was the first thing to recognize about it. That is actually what the Manifesto is all about. As far as I know, no better summary of the beauty of capital has ever been written. You sort of know it’s true, and yet it can’t be, because it doesn’t compute in the way we’re taught to think. Any more than it computes, for example, that Marx and Engels thought that America was the great country of freedom and revolution and Russia was the great country of tyranny and backwardness.

But that’s exactly what they did think, and you can still astonish people at dinner parties by saying that. To me it’s as true as knowing my own middle name. Imagine what it is to live in a culture where people’s first instinct when you say it is to laugh. Or to look bewildered. But that’s the nearest I’ve come to stating not just what I believe, but everything I ever have believed, all in one girth.

McVeigh to Macbeth

CathyYoung63@aol.com (Cathy Young) — Sun, 01 Jul 2001 00:00:00 EDT

America’s long-simmering debate over capital punishment reached a boiling point this spring as the scheduled execution of Oklahoma City bomber Timothy McVeigh approached. Several polls showed overwhelming approval for McVeigh’s execution -- up to 80 percent -- but also a good deal of ambivalence about the death penalty in general.

For opponents of capital punishment, McVeigh’s date with death became a test case for the consistency of their stance, even when it comes to the most heinous crimes. The arguments are familiar: Killing a murderer, critics say, reduces us all to his level and amounts to "legalized revenge." Writing in the Los Angeles Daily News, Elisabeth Semel, director of the American Bar Association’s Death Penalty Representation Project, saw a special, sinister irony in the case. McVeigh viewed his deed as vengeance for the 1993 deaths of the Branch Davidians in Waco, Texas. His own executioners, wrote Semel -- making an argument echoed by a few other commentators -- were simply perpetuating the grisly cycle of hate and revenge.

The argument that state-sanctioned killing is a bizarre way to reinforce the message that killing is wrong seems, on the face of it, convincing. One might think, too, that supporters of limited government should be especially troubled by the notion of placing the power of life and death in the hands of the state.

Yet many libertarians who are generally wary of expanding the prerogatives of law enforcement see, at the very least, no philosophical contradiction between small government and capital punishment. (Nor, obviously, did America’s classical liberal Founders: The Bill of Rights offers guarantees only against being deprived of life without due process.)

Roger Pilon, vice president for legal affairs at the Cato Institute, points out that in Lockean liberalism, the government derives legitimate authority from the consent of individuals who agree to delegate to it some of their natural rights -- including, in most circumstances, the right to use justifiable force. In the hypothetical state of nature, says Pilon, "When A takes B’s life intentionally and gratuitously, he alienates his own right to life and creates in B or his heirs a right to take A’s life. It’s more than a right of self-defense; it’s a right to right wrongs. And it is that right that we ask government to exercise on our behalf."

If the government’s monopoly on the use of force is legitimate, then, like it or not, the state may commit acts that would be criminal and immoral if committed by individuals. This extends not only to capital punishment but to all lesser penalties: If execution is legalized murder, then imprisonment is legalized kidnapping. One could argue that the taking of a life is radically different from other forms of force, but confining a person to a six-by-six cell for life is still a pretty drastic form of coercion.

But the more interesting philosophical issue is whether capital punishment is in fact a form of vengeance -- and, if so, whether that makes it bad.

An intriguing dissent from the standard anti-death penalty view is offered by Susan Jacoby, author of a thought-provoking book called Wild Justice: The Evolution of Revenge (1983). Both in the book and in a recent article on the McVeigh execution in Newsday, Jacoby argues that although the death penalty is beneath a civilized society, revenge or retribution -- the desire to make the offender "pay" for his crime and to "express society’s outrage at serious violations of its norms" -- is inherent in all forms of punishment and is an important purpose of the justice system.

Jacoby treats revenge and retribution as synonymous, but perhaps there is a subtle difference. The targets of McVeigh’s "revenge" had the most tenuous connection to the perpetrators of the Waco raid. In other cases, private vengeance may be directed at the wrongdoer’s relatives or loved ones. (Imagine the reaction if someone were to suggest exterminating McVeigh’s family as "payback.") Vengeance may also be disproportionate to the offense and unconcerned with intent. If a child is killed in a car accident, the parents in their grief and rage may well want to see the driver dead, even if he was blameless or at worst negligent; in a few cases, they may even act on that wish. Yet we can hardly imagine official authority carrying out such revenge.

Retribution, on the other hand, addresses moral culpability. This is perhaps most forcefully revealed by the reaction to executions of people with diminished mental capacity. In 1992, the execution of Ricky Ray Rector in Arkansas sparked a controversy not only because then-Gov. Bill Clinton took time off from the presidential campaign to fly back to his home state and sign the death warrant, but also because Rector was severely brain-damaged following a suicide attempt. One detail repeatedly cited as evidence of the barbarism of his execution was that on his way to the death chamber, Rector asked his lawyers to save the dessert from his last meal for later.

The story is cringe-inducing, but why? Not because of the suffering inflicted on the condemned; surely, it’s far more cruel to send a man to his death when he is fully aware that there will be no "later." Rather, the issue is the defendant’s perceived lack of moral agency, his inability to feel responsible for his act and to connect it to his punishment.

A number of conservatives, such as political scholar Walter Berns, author of For Capital Punishment: Crime and the Morality of the Death Penalty (1979), explicitly argue for the death penalty on moral rather than practical grounds -- as an act that affirms cosmic principles of right and wrong, one that repairs a tear in the moral fabric of the universe. To illustrate this idea, Berns turns to Shakes-pearean tragedy, asking, "Can we imagine the play in which Macbeth does not die?"

In her 1995 book, It’s All the Rage: Crime and Culture, Wendy Kaminer dismisses Berns’ grandiose vision, in which capital punishment is a moral act in response to a purposeful evil, as a poetic fable. "There are no Macbeths on death row," she writes. "Instead there are dull-witted people, damaged and crazy people, along with inexplicably cruel people whose sordid, secret deaths do nothing to set the universe in order."

Empirically, it’s hard to tell which picture is more accurate. McVeigh’s actions were certainly purposeful (and a modern-day forensic psychiatrist could undoubtedly mount an impressive insanity defense for Macbeth). Yet there is a certain irony in the fact that Berns’ argument for the death penalty seems to be more respectful of human dignity and free will than Kaminer’s argument against it.

Whatever one thinks of these two views of human life, does the criminal justice system have a function beyond protecting the basic rights of law-abiding citizens? If the state does have a role in affirming the moral order, where does that role stop? For Berns, as his other writings make clear, it extends to censorship of "immoral" materials (which is certainly a red flag). And yet it’s fair to say that the notion of a legal system that is not moored in some principle of right and wrong would appeal to few people.

Timothy Lynch, director of the Cato Institute’s Criminal Justice Project, does not see moral arguments for the death penalty as a slippery slope. In his view, "We can distinguish between a total state-imposed value system on the one hand, and passing moral judgment on violations of rights."

But while Lynch does not reject capital punishment on ethical or constitutional grounds, he says he has come to oppose it on practical ones. "To support the death penalty requires placing your trust in state actors in our criminal justice system: police, prosecutors and the courts," says Lynch. "That trust has been betrayed too many times. There have been so many mistakes and actual misconduct, it just does not warrant our support for something like the death penalty, where the results are irreversible."

Lynch echoes a view that surveys suggest is increasingly common. In a Washington Post-ABC News poll conducted in April, 63 percent of respondents -- down from 77 percent just five years ago -- theoretically favored the death penalty for murderers. But 68 percent said they were troubled by the possibility of innocent people being put to death, and 63 percent thought the death penalty was unfair because of its uneven application from state to state and county to county (and, one might add, from defendant to defendant, including co-defendants in the same case). More than half supported a temporary halt to executions until issues of fairness and wrongful convictions are sorted out.

The marked drop in support for the death penalty is undoubtedly related to the publicity surrounding the cases of people who have been released after years of imprisonment, sometimes on death row, when their convictions were overturned due to DNA tests or other evidence. A widely covered 1998 conference at Northwestern University School of Law in Chicago featured 28 exonerated former death row inmates; Northwestern law professor Lawrence C. Marshall, who organized the conference, told the media that there had been a total of 75 such cases since the Supreme Court reinstated capital punishment in 1976.

Death penalty proponents such as University of Utah law professor Paul Cassell suggest that the media attention to wrongful convictions is part of a well-orchestrated anti-capital punishment campaign. But even if that is true, it doesn’t make these cases less troubling. Nor is it much of a consolation to argue that, since none of these innocents were executed, "the system worked." Others may not be so lucky, particularly given the push to streamline the appeals process.

Unless there is actual evidence that the death penalty saves the lives of potential victims, the argument that one innocent person executed is one too many seems quite compelling. At the very least, such concerns justify calls for a moratorium on executions. Illinois has imposed such a moratorium, and 19 other states are considering similar action.

It would be possible not only to find common ground, but even to break new ground in the debate about capital punishment if supporters were more willing to confront the danger of wrongful execution, and opponents were more willing to recognize the legitimacy of retribution -- or, as Pilon puts it, of "righting wrongs" -- as an element of justice. Execution, after all, is not the only way to exact retribution.

Perhaps, pace Walter Berns, we can even imagine the play in which Macbeth does not die. In the final scene, when Macbeth realizes that Macduff is the man destined by the witches’ prophecy to take him down, he refuses to fight. "Then yield thee, coward," says Macduff, "and live to be the show and gaze o’ the time;/We’ll have thee, as our rarer monsters are,/Painted upon a pole, and underwrit,/Here may you see the tyrant."

Faced with this prospect, Macbeth -- like McVeigh -- chooses to die. It’s a more dignified "closure" for him, but not necessarily for the rest of us.

Common ground on the death penalty

CathyYoung63@aol.com (Cathy Young) — Thu, 14 Jun 2001 00:00:00 EDT

Going by the polls, the execution of convicted Oklahoma City bomber Timothy McVeigh has been one of the least controversial acts carried out by the US government in a while. Support for capital punishment in this case ran as high as 80 percent in some polls, due to the heinous magnitude of McVeigh's crime. Nevertheless, his off-again, on-again date with death has renewed the debate about the death penalty, an issue on which Americans are increasingly ambivalent.

The philosophical arguments are familiar. Death penalty opponents say that it is nothing but a form of ''legalized revenge'' (which is especially ironic in this case, since McVeigh viewed his deed as vengeance for the deaths of the Branch Davidians in Waco, Texas, in 1993) that reduces us all to the murderer's level. If it's wrong for an individual to take a human life, how can it be right for society?

This logic is badly flawed. An execution is not a lynching; it follows a trial and appellate review. More important, the American Republic was founded on the premise that individuals agree to delegate some of their natural rights to the state - including, in most circumstances, the right to use justifiable force. If the government has a legitimate monopoly on the use of force, then it may commit acts that would be criminal and immoral if committed by individuals.

This extends not only to capital punishment but to lesser penalties. If execution is legalized murder, then imprisonment is legalized kidnapping (what would we say if one individual forcibly kept another locked up in a tiny room for years?) and monetary fines are legalized robbery.

Perhaps a more interesting philosophical issue is whether capital punishment is vengeance - and, if so, whether that makes it bad. Susan Jacoby, author of the thought-provoking book ''Wild Justice: The Evolution of Revenge,'' is a death penalty opponent who nonetheless believes that revenge or retribution - the desire to make the offender pay for his crime and to express society's outrage at the deed - is an important element of justice.

Jacoby treats revenge and retribution as synonymous, but there's a subtle difference. The targets of McVeigh's revenge had no connection to the Waco raid. Private vengeance may be directed at the wrongdoer's loved ones (imagine the reaction if someone suggested exterminating McVeigh's family as payback!) and unconcerned with proportionality or intent. If a child is killed in a car accident, the grieving, enraged parents may well want to see the driver dead, even if he was blameless; yet we can hardly imagine official authority carrying out such revenge.

Retribution, on the other hand, addresses moral culpability - which is why virtually everyone is repelled by the idea of executing a person with diminished mental capacity. Many death penalty supporters, such as conservative political scholar Walter Berns, explicitly defend capital punishment in moral rather than practical terms - as a way of righting a purposefully committed wrong and affirming the offender's ultimate responsibility for his or her acts. Some opponents, on the other hand, seem to see few wrongs as truly purposeful.

But there are also those like Timothy Lynch, director of the Cato Institute's Criminal Justice Project, who endorse many of the moral arguments for the death penalty yet have come to oppose it on practical grounds. ''To support the death penalty requires placing your trust in state actors in our criminal justice system: police, prosecutors and the courts,'' says Lynch. ''There have been so many mistakes and misconduct, it just does not warrant our support for something like the death penalty, where the results are irreversible.''

In a recent Washington Post-ABC News poll, about two-thirds of respondents favored the death penalty for murder. But 68 percent said they were troubled by the possibility of innocents being put to death, and 63 percent thought the death penalty was unfair because of its uneven application. More than half supported a temporary halt to executions until issues of fairness and wrongful convictions are sorted out. Unless there is evidence that the death penalty saves potential victims, the argument that one innocent person executed is one too many seems compelling. At the very least, such concerns justify a moratorium.

Death penalty advocates should be more willing to confront the danger of wrongful executions. Opponents, meanwhile, should reexamine their assumption that ''retribution'' is a dirty word (death, after all, is not the only means to exact retribution). Then, we might not only find common ground but actually break some new ground in this debate.

Can the Death Penalty Be Saved from Its Supporters?

info@reason.com (Jonathan Rauch) — Sat, 08 Jul 2000 00:00:00 EDT

National Journal

On the evening after the murder, Swafford and some buddies went to a bar in Daytona Beach called the Shingle Shack, where Swafford brandished a gun. When someone called the police, Swafford rushed to hide his pistol in the trash can in one of the restrooms; an employee then found a pistol in the men's room trash and gave it to the police. More than a year later, acting on a tip, investigators tested the gun. It was the Rucker murder weapon. That gun was the decisive evidence at Swafford's trial. No other physical evidence, and very little other circumstantial evidence, linked him to the crime.

Since November 1985, Swafford has been on death row in Florida. One of these days, perhaps even by the time you read this article, the Florida Supreme Court will rule on Swafford's request for a new trial. If his request is denied, a round of federal appeals will begin. No end is in sight. This is a pity, since Swafford may be innocent.

During Swafford's trial, there was a curious discrepancy. The Rucker murder weapon was found in the Shingle Shack's men's room. But a waitress had testified that she accompanied Swafford while he dumped his gun in the ladies' room. At the time, no one knew what to make of this discrepancy. In the 1990s, however, Swafford's attorneys began to piece together a story.

Shortly after the Rucker murder in 1982, police in Arkansas arrested a man named James Michael Walsh on charges of attempted murder. In his back pocket, Walsh was carrying a copy of the composite sketch of Rucker's killer, which the Arkansas police thought he resembled. They called detectives in Florida, who interviewed Walsh and his traveling companions. Two of Walsh's buddies placed him within a block of Rucker's Fina station a few minutes before the abduction. One of them, a man named Michael Lestz, said that Walsh reappeared four hours later, looking sweaty and nervous; then Walsh had Lestz drive him around to various local bars, including the Shingle Shack, to get rid of two .38-caliber pistols. None of this was known to the original defense attorney or to the jury that convicted Swafford. Walsh was never charged in the Rucker case.

Here you have two narratives of one murder, each circumstantial, each slightly odd. The state would have you believe that Swafford abducted Rucker, drove her six miles, raped, burned, and killed her, and then drove back to his chums, all within about an hour. The defense would have you believe that there were two .38-caliber guns in Shingle Shack trash cans, one (the murder weapon) dumped in the men's room by Walsh and the other in the women's room by Swafford.

When confronted with a mystery, the American legal system, like any great bureaucracy, takes refuge in red tape. The Swafford case is no exception. The defense demands a retrial based on new evidence; the state retorts that the new evidence isn't really new and wouldn't have changed the jury's mind anyway; the defense replies that it is new and it would have; and so on through the months and years, like a truck grinding back and forth in a sand pit. The law is scrupulous in its observance of procedural niceties. Meanwhile, in deference to those same niceties, the law ignores evidence that might resolve the mystery tomorrow.

Rucker, recall, was raped, and Swafford was convicted before DNA testing became available. I asked Swafford's attorney, Martin J. McClain, about DNA evidence. He didn't know if the evidence had been preserved. Why not demand to find out? Seven or so states allow an inmate to demand a post-conviction DNA test if it might show his innocence; Florida is not among them.

Of course, Florida could agree to examine DNA evidence voluntarily. In September, U.S. Attorney General Janet Reno endorsed a federal commission's recommendation that prosecutors, defense lawyers, and judges cooperate to examine DNA evidence "in those cases in which DNA testing may be determinative of innocence." Indeed, Reno went way out on a limb, recommending that "where DNA can establish actual innocence," all sides should favor "the pursuit of truth over the invocation of appellate time bars." For a lawyer, this is a pretty radical concept.

I called the state attorney general's office to ask whether the state would be willing to examine DNA evidence without further ado. After leaving three phone messages, I finally got this response: "That's not something we would be able to answer."

"In over half the cases where we got DNA exonerations," says Peter Neufeld, a co-director of the Innocence Project (a legal aid group), "prosecutors did not consent to DNA testing, and we had to secure testing through an order of the court. We had to litigate for three, four, five years."

Why, one wonders, do supporters of the death penalty imagine they're doing capital punishment a favor when they drag their feet about resolving doubt? They are right to empathize with the suffering of victims, and right to point out that opponents of the death penalty never met a defendant who wasn't innocent. They are also right to insist on the finality of trials.

But death is more final than a trial. Mistakes can never be corrected. Life imprisonment in the face of plausible doubt is tolerable because it is sometimes unavoidable. But death in the face of doubt should never happen.

In my opinion, whoever tortured, mutilated, violated, and then destroyed Brenda Rucker deserves to die. It seems to me that no one is entitled to torture, mutilate, violate, and destroy another human being and then enjoy life to a ripe old age. A death sentence, properly carried out in the face of clear guilt and irredeemable monstrosity, upholds rather than degrades the sanctity of human life. Anything less trivializes life by treating the crime too casually.

For exactly the same reason, however, an execution in the face of credible doubt trivializes life by treating the sentence too casually. If the state is going to seek to deprive a citizen of his life--that is, of everything--it needs to make sure he has not just a lawyer but a competent lawyer, before and after trial, with enough money to conduct a proper investigation. It needs to stop prosecutors and judges from hiding behind red tape in resolving doubts after conviction. If, at the end of the day, doubt persists, governors--who, according to the Death Penalty Information Center, have exercised clemency in only 42 capital cases since 1976 (vs. 650 executions)--need to be willing to commute capital sentences to life in prison without parole.

In Congress, a bill sponsored by Sen. Patrick Leahy, D-Vt., tries to plug some of these holes. It would use federal money and mandates to encourage states to preserve DNA evidence and, where the evidence might exculpate a convict, examine it promptly. The bill would also take steps to set minimum standards for defense lawyers in capital cases.

Paradoxically, the people who stand to gain the most from these sorts of doubt-reducing steps are the proponents of capital punishment. A few shrewd death penalty opponents understand as much. The (London) Times editorializes: "If, as seems likely, public concern leads to wider DNA testing, better legal representation, and more certain convictions, then the popularity of the death penalty will rise, and that stony little part of the American soul that condones judicial killing will harden once again."

These opponents also understand that their best friends are governors and parole boards who proceed with executions despite well-founded doubts, as Texas Gov. George W. Bush and the Texas Board of Pardons and Paroles did in the case of Gary Graham on June 22. With friends like Texas, the death penalty needs no enemies.

In moral terms--which, in the long run, are the only terms that really matter--the most important event in America this year is the public's growing concern about the possibility of executing innocent people. In January, when Illinois Gov. George H. Ryan (a Republican) cited 13 death row exonerations and declared a moratorium on executions until the error rate could be reduced, hardly anyone carped. Suddenly, the climate seems hospitable to measures such as Leahy's. Meanwhile, Roy Clifton Swafford, who has either been in prison or alive too long, waits