The death penalty, more so than any other punishment meted out by American courts, rests on a moral judgment about good and evil, responsibility and blame. It encourages society "to focus compulsively on fixing individual responsibility and apportioning blame," resting as it does on "clear typologies of good and evil, victim and villain." It "responds to insistent demands that we use punishment to restore clarity to the moral order."
Sarat returns to this issue again and again throughout the book. In capital trials, for example, prosecutors regularly construct narratives that "project a sociologically simple world of good and evil, and a morally clear world of responsibility and desert." Sarat is particularly troubled by the success prosecutors have in persuading juries to see the world in the same morally simplistic way. He calls this "the mystery of how jurors are enlisted as agents of the killing state." Here he recounts in some detail the case of John Henry Connors. Late one night Connors and two friends entered a convenience store in Bowling, Georgia, after spending several hours "driving around, smoking marijuana, and drinking. Each had a gun." When the store clerk, Andy Donaldson, finished ringing up the purchases and opened the register to make change, "Connors suddenly pulled out the .357 Magnum pistol...and shot Donaldson in the chest." Donaldson then "fell to the floor in a bloody heap, moaning and writhing in pain while Connors took ten one-dollar bills and some food stamps from the register. Connors then leaned over the counter and fired a second shot, which hit Donaldson above the left eye." Subsequently, a jury convicted Connors of murder and recommended a sentence of death; or, as Sarat put it, the "jurors allow[ed] themselves to be enlisted as authorizing agents of capital punishment." Why? Because they felt a "'compulsion' to assign responsibility and explain motivation." In the end, the jurors "refused to accept the picture of a social world of events governed by causes beyond human control [clearly Sarat's preferred position]; instead, they constructed a moral world of free agents making choices for which they could be held to account."
Later, Sarat criticizes popular movies about murder and the death penalty—especially "Dead Man Walking" (1996), "Last Dance" (1996), and "The Green Mile" (1999)—for conveying "a powerful double message: first, citizens can, and will, be held responsible for their acts; second, they can, and should, internalize and accept responsibility.... [T]hese films are grounded on the notion of a responsible person as the proper object of punishment." Sarat subsequently calls this "the supposed reality of individual responsibility."
Why "supposed" reality? Because a more accurate, or less "flat" view, would "blur the distinction between criminals and victims," focus on "the conditions that breed crime," "implicate us all in the circumstances that produce crime," and, in the end, "undermine the moral and legal scaffolding on which the apparatus of punishment is built." If, however, we embrace this more complex view of reality, one in which criminals are themselves victims of forces and conditions over which they have no control but in which we are all in some way implicated, what would follow for our criminal justice system? How would we punish the Timothy McVeighs or John Wayne Gacys among us? And what of rapists and robbers? How could any criminal (if indeed we continued to use the term) be deemed to deserve punishment? Here Sarat, unlike his more forthright intellectual progenitors such as Ramsey Clark or the psychologist Karl Menninger (The Crime of Punishment), offers nary a clue. Abolish the death penalty and you begin to undermine the "simplistic" moral judgments that support the entire "apparatus of punishment." If that apparatus comes tumbling down, what then? It is a great virtue of When the State Kills that it clarifies the high stakes involved in the culture war over capital punishment and thereby reminds us of one of the strongest arguments for the death penalty.
The death penalty when imposed on murderers is the one punishment that is more or less equivalent in severity to the criminal offense itself. We kill (some) murderers, but we do not rape rapists, rob robbers, or assault those who beat and maim. Thus the death penalty remains our only residue of the biblical injunction to exact "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot" (Deuteronomy 19:21)—an injunction that was intended not, as is sometimes supposed, to legitimize revenge, but rather to limit the "paying back" to the level of seriousness of the original offense. It is this notion of justice—that offenders deserve to suffer as much harm as what they intentionally cause others—that has formed the bedrock justification for the execution of murderers for as long as we have records. And it is this notion of justice that offends Austin Sarat and so many opponents of capital punishment.
The stakes here also have a particular political dimension. To believe in the possibility of clearly distinguishing good from evil and innocence from guilt and to believe in free will and personal responsibility is to be on one side of the culture wars. The "conservative cultural politics" embodied in the acceptance of the death penalty on such grounds, Sarat says, endorses "the legal and political status quo. Thus cultural conservatism ends up serving the cause of legal and political conservatism." What is missing here is any description of the kind of legal, social, and political order that could be constructed on the rejection of the distinction between good and evil and on the denial of personal moral responsibility.
In October, the country was transfixed by the story of the sniper, or snipers, around Washington D.C. who calmly shot down more than a dozen people as they went about their business at schools, gas stations, and other innocent venues. Most Americans have no trouble applying what Sarat calls, pejoratively, "the simplifying effort to distinguish evil from good" to such a situation. And most would prefer to live in a world where evil is recognized and dealt with as such, and where, to every possible extent, the innocent are protected from those who would do them harm. President Ronald Reagan reminded us that the Soviet Union was an "evil empire" and President George W. Bush identified as "evildoers" those responsible for the mass murders of September 11, 2001. Yet even after nearly a decade of declining murder rates, there are five times as many homicides in the United States each year as there were on September 11. Evil was not introduced into the modern world by the Soviet Union or by al-Qaeda terrorists. It is an ever present aspect of the human condition, which is well understood by those average American citizens who, some 200 times each year, serving as jurors in murder cases, recommend the ultimate punishment to those who perpetrate the most heinous crimes.