John Cole, an anti-death penalty (“I dislike the death penalty because it is irreversible, it is arbitrary, it is seemingly enforced in a haphazard manner, it seems to be more about race and class than guilt, it does not seem to prevent crime, and because I see no need to have a system that could kill one innocent man when we could keep them all imprisoned and avoid that risk”) conservative, isn’t particularly troubled by the failure of Tookie Williams to be spared the needle. As a liberal death penalty opponent, I am similarly ambivalent, although for slightly different reasons. I think selective clemency is a problematic means of opposing the death penalty.
In my comparative law class this semester, I taught James Whitman’s book Harsh Justice, which tries to explain why criminal justice has developed in such a different manner in the U.S. and Europe. He finds the key difference in Blackstone‘s claim about what he saw as a central accomplishment of English common law:
And it is moreover one of the glories of our English law, that the nature, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, without respect of persons.
Of course, the phrase “without respect of persons” has a double meaning, one which is arguably a central component of the rule of law and one of which is critical. The irony Whitman notes is that continental systems have “respect of persons” in both respects, treating prisoners with much more dignity, but also sentencing prisoners in a much more individualized and arbitrary fashion than the U.S.. Whitman argues that this is largely the result of Europe’s feudal roots; essentially, Europe has tried to “level up” by giving most prisoners the high status treatment that was once the privilege of the ruling class, while the U.S. hasn’t had the same impulse; while the U.S. has some high status prisons, it’s never been compelled to extend that treatment to all. I don’t agree with all aspects of his argument, and of course the differences are relativistic and not absolute, but I think it’s a useful way of looking at the difference.
To the extent that Whitman is right, I hope there’s not a causal connection, because my own preference would be to marry the Anglo-American style rule of law with the contienental treatment of prisoners and relative disinclination to criminalize non-violent offenses. While of course some discretion is inevitable, and eliminating judicial discretion isn’t often a good idea because it just passes the discretion to less accountable prosecutors, I think that for the most part people who commit similar offenses should get similar punishments, and individualized treatment tends to exacerbate racial and class inequities.
Which brings us to the death penalty. One of the things that marks the attempt to rationalize sentencing in the United States is that executive clemency for condemned prisoners has declined drastically, even as executions have become much less common. Generally, governors in the post-1976 era have used clemency only in rare cases where there’s some doubt about the justice of the sentence. And, frankly, I think that this is right. While I despise George Bush’s unserious attitude about the death penalty, on the narrow issue of whether he should have granted clemency to Karla Faye Tucker, frankly his position is (even if it would have never occurred to him) more defensible than that of conservative death penalty advocates who wanted to pardon her. If we’re going to have the death penalty, then we should be willing to execute attractive Christian white women too. I strongly support clemency in cases, like Cory Maye, where the death penalty is clearly unjust even under a state law that authorizes it. But, honestly, I don’t find Williams’ case, or any case for clemency based on changes a person has made after committing the relevant crime(s), very compelling. These factors are meaningful for parole, but when it comes to the ultimate penalty, it’s just too arbitrary. It’s good that Williams has changed so much in prison, but I can’t justify sparing him while people who committed less brutal crimes will be executed just because they’re less articulate.
None of this is to say, of course, that I’m not strongly opposed to the execution of Tookie Williams, for the reasons that Randy (and Thurgood Marshall) state. But if we’re uncomfortable about executing him, the lesson should be to oppose the death penalty for everyone, rather than arbitrarily saving a few people based on factors that ultimately have little or nothing to do with fundamental justice. If I were a governor, I would grant Williams clemency, but only as part of a blanket refusal to sign off on any execution.