Certainly, we all cheered the valiant efforts of the doctors who vigorously repulsed Gilmore's presumptuous attempts to deny his executioners their moment in the sunrise by usurping Utah's Divine Right to take a life, even though it be his own. The work of the medical rescue teams which frustrated his suicidal activities and restored and preserved his life so that it could be properly terminated can be said to be commensurate with the best of medical practice -- the height of Hippocracy, so to speak.
In addition to that, we are proud of our courageous boys in denim (with the possibility of that misguided lad who drew the blank round and he knows who he is because his was the rifle that didn't recoil and he'll just have to live with his guilt the rest of his life) who took time away from their loved ones and rendered service to the Sovereignty of Utah on the firing squad. These dedicated volunteers demonstrated their love of country in the extreme, for surely the paltry fee paid them for the one-shot deal was not their real motivation.
It is to them that we are indebted for a rejuvenation of words and phrases in our discourse that we have too rarely heard these past ten years. Such gems as "effective deterrent" or "How about the rights of the victim?" and "It costs too much to feed them" together with their perinnial rejoinders such as "sacredness of life" or "Should the state stoop to their level?" and "ineffective deterrent," and all of which eventually rise to the level of "So's your old man," can again be heard in our land.
I suppose a principle that may be said to have emerged from the Gilmoribund events of the morning of January 10th is that a person sentenced to die has an inalienable, if not constitutional, right to force the State to kill him in accordance with his sentence. Neither family nor friend nor American Civil Libertarian has legal standing to foist an appeal upon an unwilling appellant.
Can we not envision the dramatic implications of this new principle? Imagine an anxious Governor or Supreme Court Justice waiting by his phone for a call from the Warden saying, moment before the appointed hour, that the condemned has had a change of heart and will file his Notice of Appeal after all or, at least, has decided to stay his decision to die until he has reviewed the merits of the case for continued life. Pen to paper, all ye playwrights!
All those sturdy death-penaltarians who cheered the execution on the ground that "he got what he deserved and what he wanted" might live the regret the full implications of the Gilmore principle. If the law protects the right of the condemned to choose death over life, finally and irrevocably, must not the law equally protect the right of the condemned to choose life over death, as finally and irrevocably as is the power of the law? Is that not what is meant by equal protection of the law? If the law gives me the power to cause the State to kill me, does not the law thereby give me the power to cause the State to let me live?
Sophistry, you say. Who knows what logic yonder lurks in the minds of men? Could it be that this wily, self-confessed killer perceived such implications to flow from his resolute refusal to appeal? Those who were convinced, prior to the execution, that Gilmore was bluffing as part of a devious plot to cheat his executioners can now repair to the belief that Gilmore may have said "let's get on with it" in furtherance of a deeper conspiracy to discredit the death penalty, once and for all.
Has he not also put both the Utah and the U.S. Supreme Court in a bit of a bind? Eventually, both forums will finally review the Utah death penalty statute. If either finds the law to be defective, that will place the Warden and the State of Utah in the position of having wrongfully caused the death of you know whom and potentially liable to his estate for who knows what. But maybe the Warden can write a book to pay the judgment.
However, if both Courts find the law to be enforceable, will it not be said for generations to come that they did so to avoid the implications of doing otherwise? I will never cease in my amazement at how such a man as Gilmore can so manipulate our system merely by doing nothing after his sentence.
This is the inevitable result of the system reflecting the naive belief that all persons condemned to die will fight to avoid execution. We may recall identifying tearfully with Susan Hayward as she won an Oscar portraying a character fighting a losing battle with a California gas chamber in the movie I Want To Die back in the late fifties. However, although the story was based in fact, the character is not a universal one (neither was the studio, it was United Artists, trivia fans.)
Our society has some folks in it who want to die but can't do the deed themselves. They might just decide to kill in the hope that the State will do it for them and immortalize them in the bargain. To those persons, death is a reward, life imprisonment is cruel and unusual punishment and getting away with the crime is the worst outcome of all. How does that hang on your gallows, Mr. Death-is-a-Deterrent?
The debaters on both sides of the deterrence/non-deterrence argument have missed the point. Capital punishment deters some, invites some, and, more often than both, has no effect whatsoever on whether most persons will take a life.
Similarly, those who contend that death is constitutionally proscribed as cruel and unusual punishement have their heads in the sand. In this country's history, it is far more unusual not to have death as a penalty than to have it. As for cruelty, death is as cruel to those who seek living as life is cruel to those who seek dying.
There is little to rebut the straightforward argument of retribution except that I wish people would say what they mean. Don't allude to "eye-for-an-eye" when you mean "life-for-a-life." The Supreme Court will not abide by any eye-gouging no matter what the crime may have been, nevermind the implication the simile has for males convicted of rape.
One rejoinder which occurs in the Biblical admonition that vengeance is the business of the Lord and not of man, but that's the same Bible that started the eye-gouging analogy in the first place. Perhaps the most cogent response is that the state cannot justify killing on the basis of deterrence and therefore is hard put to promulgate life's sacredness while busily engaged in its deliberate termination.
By far the best approach to the debate on capital punishment is to avoid it. It belongs in the category with religion and politics where few opinions, if any, change with discussion and where communication is rarely meaningful because of the emotion which pervades the topic and the participants.
The plain and simple fact is that a majority of or voting population now favors death as a penalty. Few who do really know why. They just do. Few who have the law in their State know what it says or care. They're just happy they've got it. As long as the majority of voters want it, the majority of lawmakers will enact it out of sheer self-preservation. Similarly, a majority of judges will invoke it at sentence and protect it on appeal. While it is not yet clear, it seems most of the governors will follow suit, too.
The majority will have their will. People will follow Gary Mark Gilmore's path to oblivion until the majority has glutted its bloody thirst or until opinion swings. People will kill each other and the State will call it murder. The State will kill those convicted in the name of the people and call it execution. Most of those will have been truly guilty but a few innocents will be executed along with them. The system, human and frail as it is, can never be a perfect one. Reformable condemnees will die. Hard core killers will escape death and kill again. The circle of death will go 'round and 'round until society decides to get off. In the meanwhile we who survive will all get dizzy together. Take your comfort from that.
[Happy 73rd Birthday, guest blogger, Roger S. Hurley.]
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