NORTH MIAMI BEACH — The criticism has been widely advanced, most eloquently by Rush Limbaugh, that the jury in the Scott Peterson trial has expressed, and apparently acted upon, a sentiment that ill befits the administration of justice. This is in response to their contention that they were moved to recommend the death penalty by the defendant’s strange void of emotion. The critics bemoan this seeming digression from the substance of the crime. It strikes them as betraying the absence of judicial temperament. How are the lives of citizens entrusted to peers rather than solons? Isn’t it patent that they are diverted from the jurisprudential by the inconsequential?
At first blush, the jurors do sound petty and perhaps a bit pettish. They are willing to downplay the ogreish behavior of the past in return for a show of docility in the present. It’s all right if you rob the house but don’t soil the rug. And they demand a bow to convention; let vice hang its head in the parlor of virtue. Lastly, they want their own power celebrated: how dare he deny obeisance to their plenipotentiary custody of his fate?
By allowing them this ability to exercise arbitrariness, are we underpinning or undermining the pillar of justice in the structure of our society? The echo of this question is having a repercussive effect on the proclamation of the verdict itself. Is he being killed symmetrically for killing? Or is he being killed subjectively for failing to whimper and weep? Is he being stripped of life by dint of his ability to wear his worry too well? These are doubts that pierce.
I BELIEVE THAT PERHAPS we are selling our peers short. Their argument, properly construed, may indeed be peerless. They make a point that is competent and relevant and material, so the objection may be overruled. Permit me to offer a context that will serve to decrassify their assessment. (Yes, “decrassify” is a word in Webster’s Third New International Dictionary; no, it does not relate to publicizing Chinese government documents.)
It behooves us to ponder a moment upon the nature of the death penalty in our time. Is this the same concept as mentioned for instance in the Bible? Is it the same as when applied capriciously by a dictator? Is it the same as Wyatt Earp shooting them down or Judge Roy Bean stringing them up?
It is fair to say that we are not enforcing, nor can we hope to enforce, the Scriptural version of justice. First of all, the Jewish tradition makes clear that the death penalty was designed to be virtually impossible to administer. No circumstantial evidence of any kind was allowed; two witnesses were required; they were not permitted to be relatives or felons; they had to have been aware of each other during the commission of the crime; they had to have both warned the perpetrator beforehand of the legal consequences. In short, the likelihood of anyone being executed under that system was nil. Its function was textual rather than logistical: it was on the books to educate people of good will about the severity of the acts so designated.
When Ronald Reagan turned to Rabbi Moses Feinstein, the leading expositor of Jewish law at the time (he died in 1987), his response (published in Hebrew in his collection, Letters of Moses) was that we cannot lay claim to the idea of assigning punishment through the courts. The sole basis for the death penalty today as a practical tool is to keep order in society, a governmental authority equivalent to declaring states of emergency.
Although I confess to some discomfort with his conclusion, I think that the formula for a meaningful death penalty might proceed as follows. We are punishing, yes, but prison would suffice. We are reaching for an ideal of justice, yes, but are aware that we can achieve little more than a simulacrum. We are affirming the humanity of victims, yes, but are hardly prepared to offer killer’s heads to families as solatia. We are forgoing rehabilitation as a goal in these cases, yes, but that does not justify forfeiture of life. Nor do we seek to be the agents of salvation, to save a soul for heavenly grace by dispensing earthly justice — but if that happens, then all the better.
OUR RATIONALE FOR actually turning the power of the state into an agent for the execution of a citizen is the continued safety of the other 300 million people who share that status. We kill the most dangerous people, the ones who are disposed to take the life of all who oppose the satisfaction of their every whim. Those individuals can be predicted to kill in jail, to kill on the street, everywhere that obstacles to self-gratification might be encountered. Indeed Wyatt Earp and Roy Bean might be our very best models, if perhaps with less drama and panache.
The absence of emotion, a curious flatness of affect amid the strains of tragedy and loss, tends to characterize the most implacable of killers. I once asked my friend Ann Rule, the greatest author of true crime books in our day, why a man who famously killed his wife by drowning her while pretending to save her, signed his own death warrant by walking away from her body on the beach while lifeguards were still desperately trying to revive her. She assured me that such incidents abound in the annals of crime, that the worst killers have a tendency to escape into an emotion-free zone.
Peterson is not being killed for stoicism. He is being killed for killing, and the jury rightly saw in his demeanor a chilling clue to murders as yet uncommitted.
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