Abstract
An executive ought to be as informed as possible about the needs and preferences of her constituency and about the most important policy issues that her constituency confronts. This ethical duty, referred to as the “informed governance principle,” requires that an executive who is not opposed to the death penalty personally carry out at least one execution of a death row inmate. Having an executive act as executioner, even if just once, could also help citizens reflect upon their personal ethical commitments, spur them to monitor the government’s power, and prompt them to contemplate how best to distribute power so that the chance of injustice is minimized.
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Notes
Some readers have commented that this piece reminds them of Swift’s A Modest Proposal (1969). I do not intend this to be a satire—although it would be interesting to examine why Americans who are comfortable with executions, in the sense of finding the practice of the death penalty conceivable, might find it inconceivable that an executive should be ethically required to execute at least one death row inmate, if the executive does not think the death penalty is unethical. “In the end, political theory can make no contribution to how we govern ourselves except by struggling, against all the impulses that drag us back into our own culture, towards generality and some reflective basis for deciding which of our traditional distinctions and discriminations are genuine and which spurious” (Dworkin 1985, p. 219).
Peter the Great serves as historical precedent for this proposal; he executed numerous condemned individuals (Korb 1968, pp. 102, 252).
I would like to believe that my analysis of this topic is as objective as it can be—that the arguments I advance as to why the current practice needs to change will be convincing to both supporters and critics of the death penalty.
This paper uses the term “executive” to signify that the argument can be applied to both the President of the United States and state governors, all of whom are elected officials, even though certain passages in the paper will explicitly describe either the federal government or state governments.
To explore the Supreme Court’s varied opinions on the matter, contrast Furman v. Georgia, 408 U.S. 238 (1972), to Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976).
For an analysis of ten possible reasons why the United States still retains the death penalty, see Steiker (2002).
In Plato’s work, one can disaggregate his position that political actors be as enlightened as possible from his stance on how such political actors should be selected to lead. Thus in contrast to Plato, I derive the informed governance principle from the theory of representative democracy.
The following analysis does not hinge on the differences between, for example, aggregative versus deliberative democratic theory. Rather, the distinction is related to the advantages and disadvantages of direct democracy versus representative democracy. See Madison (1987).
The executive could come up with a host of unusual policies to attempt to help the public better understand different dimensions of capital punishment, but many of these unusual policies would run up against legal restraints or moral outrage or might simply not be effective. For example, the United States could consider returning to the practice of public executions or begin to broadcast executions. See Lesser (1993) or Schwarzschild and Bryan (1997).
Kant (1974).
This would most likely entail the executive personally meeting some prison workers and their families, death row inmates and their families, and victims’ families. Also, if the executive believes in the legitimacy of the death penalty, she would possibly have to meet some of these individuals after executions.
This point can further be used to argue that the executive has not only an ethical responsibility but also a legal–political obligation to execute at least one death row inmate if she is not against capital punishment. While such a legal–political obligation of informed governance may exist—for example, the President ought to read the constitution if she swears to uphold it—for present purposes I limit my argument to the executive having an ethical responsibility. Finally, an area for potential exploration may be the informed governance principle’s relationship to the legal principle that ignorance of the law is generally not an excuse.
The analogy to the habits of meat eaters is in no way meant to insult the dignity of death row inmates.
Singer ( 1993, pp. 55–82).
My argument rests on the informed governance principle, which views the accumulation of information and experience (including information gained through personal experiences that evoke emotional responses) as crucial to politicians selecting policies that are in the best interest of society. Not having the space to reargue the extensive, centuries-old debate about the importance of experience/emotions to moral judgment, I take the position that both detached reason and experiential/emotional responses are integral to moral reasoning. This philosophical position is supported by neurological research that is discovering that “reason doesn’t operate without emotion, that emotions may usefully be understood as judgments, that our deliberative processes require both” (Romano 2007). See also Nussbaum (2001), Solomon (2004), and Damasio (1994).
This paper leaves open the possibility that there are other important acts that are as uniquely situated. If such other acts exist, the arguments presented here would also require the executive to perform these other acts, if the executive is not personally opposed to them.
This experiential information is not superior to other knowledge, though it is difficult to obtain. An executive would violate the informed governance principle without such experiential knowledge, but she would also violate the principle without knowing about other aspects of capital punishment.
While an argument can be made to extend the responsibility of personally executing at least one death row inmate to other politicians, the strongest argument requires at least the executive to bear this responsibility.
A poignant example of this comes from a former prison warden, Donald Cabana, who states in regard to questioning the legitimacy of the death penalty, “I knew … if I found myself no longer haunted by doubt, then I would know the time had come for me to leave corrections behind” (Cabana 1996, p. 17).
In fact, she might have to carry out numerous executions to understand fully the significance of such a monumental act. For example, if there are numerous allowable methods of execution, a case could be made that it would be necessary for the executive to carry out at least one execution using each method.
The President of the United States alone has the authority to pardon federal death row inmates. Of the 36 states that have a death penalty statute, in 12 states the governor has sole authority over the clemency process, while in ten states “the governor may receive a non-binding recommendation of clemency from a board or advisory group.” In another eight states the governor cannot grant clemency without obtaining the recommendation of clemency from an advisory group. In Nebraska, Nevada, and Utah, the governor is a member of a board or an advisory group that collectively determines clemency. Finally, in Connecticut, Georgia, and Idaho, only a board or an advisory group is responsible for determining clemency. Death Penalty Information Center, Clemency.
Sarat describes how Michael DiSalle, the governor of Ohio from 1959 to 1963, “in several instances [went] to death row himself to interview the person whose fate he would ultimately decide” (Sarat 2005, p. 156).
Even if our society determines that the executive should perform all executions, such responsibility would not be overly time-consuming, given the number of individuals on death row and the current pace of executions. There were 42 executions in the United States in 2007 (26 of which were in Texas). Death Penalty Information Center, Number of executions. Fifteen states have 20 or fewer individuals on death row. Texas has 373 death row inmates, the third-highest number in the nation behind California (667 individuals) and Florida (397 individuals). The federal government currently has 51 inmates on death row (the U.S. Military has an additional nine death row inmates). Death Penalty Information Center, Death row inmates.
See Elaine Scarry’s related point that the current authorization structure for the use of nuclear weapons does not appropriately allocate the “risk of receiving injury in return” (Scarry 1991, p. 1269).
A French noble captured in Pavia in 1525 complained that without the gun, “so many brave and valiant men [would not] have died by the hands of cowards and shirkers who would not dare to look in the face the men they bring down from a distance with their wretched bullets” (Rice and Grafton 1994 , p. 15).
The executive’s obligation, created by the informed governance principle, is to the public, not to a death row inmate, who has no right to be executed by any individual in particular.
Alexander Hamilton “suggested that lodging such awesome power in one person would inspire in the chief executive ‘scrupulousness and caution’” (Sarat 2005, p. 145) (citing Hamilton 1987). While Hamilton was discussing reprieves and pardons, the same suggestion could be made of executives executing at least one death row inmate.
See generally Milgram (1974, p. 195). A survey of former participants in Milgram’s psychologically arduous experiment showed that 83.7% were very glad or glad to have been in the experiment, while an additional 15.1% viewed their participation as neutral. Also, “74% indicated that they had learned something of personal importance as a result of being in the study…. Ninety-two percent of the subjects returned the questionnaire. The characteristics of the nonrespondents were checked against the respondents. They differed from the respondents only with regard to age; younger people were overrepresented in the nonresponding group.” Ibid.
Diderot’s anti-death penalty position is related to this point: “Diderot does not argue that the death penalty treats the criminal unjustly (though it might). Rather, he argues that the wrongness of capital punishment follows ‘incidentally’ from something else: the death penalty turns men into killers, and killers are abhorrent” (Applbaum 1995, pp. 479–480).
For example, Beccaria thought that the practice of the death penalty “cannot be useful, because of the example of barbarity it gives men” (Beccaria 1963, p. 50).
For an example, see Langbein ( 2006, p. 84).
Talking about the death penalty generally, Johnson says it “is an anachronism that survives today because we hide it from our awareness and deny its violence” (Johnson 2006, p. 4).
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Acknowledgements
I would like to thank Professors Bruce Ackerman, Stephen B. Bright, Jules L. Coleman, Jan Ginter Deutsch, Owen M. Fiss, Paul W. Kahn, Caroline R. Sherman, and Peter Singer for their assistance and suggestions.
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Skladany, M. The Executive as Executioner and the Informed Governance Principle. Criminal Law, Philosophy 3, 289–300 (2009). https://doi.org/10.1007/s11572-009-9078-5
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DOI: https://doi.org/10.1007/s11572-009-9078-5