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.
