Jan
27

Death? Maybe

I've been reading the press reports about Dzhokhar Tsarnaev's jury selection in Boston with a growing sense of ambivalence. Tsarnaev, you will recall, is the surviving suspect in the 2013 bombing at the Boston Marathon.

I have for decades been opposed to the death penalty, and the specter of the federal government's insisting on a death in a state that has long eschewed capital punishment is chilling.

What of the great laboratory of "federalism," where the states are free to tinker with justice, and to teach the feds a thing or two? This prosecution looks perilously close to Big Brother telling us he knows best.

But the more I think about this prosecution, the less I am troubled by it. I'm not at all sure that death is less humane than life behind bars without possibility of parole. And neither, as I consider the U.S. Supreme Court's decision to grant certiorari in a handful of lethal injection cases arising out of Oklahoma, am I persuaded the lethal injection is by definition cruel and unusual punishment.

What, other than contrariness, has produced this sea change in my attitudes?

Paradoxically, reading evolutionary biology, in particular, Edward Wilson's "Social Conquest of the Earth," and reading accounts of medicine's struggle against disease, and the fight against influenza and Ebola epidemics. A smattering of fear about climate change has also helped me along this path.

Survival is not a given. In the competitive struggle for scarce resources, we have always killed other organisms. War is but a form of evolution by social means. Civilization is work of cooperative, and cooperating, organisms. What to do when a member of the species turns against our survival?

Wilson talks about evolution not just in terms of individual adaptation, but also in terms of collective, or social adaptation. The capacity to survive is a function of how a group responds to its physical and social environment.

What do bombers contribute to the social weal? I'm hard-pressed to think of anything, although I know that Tsarnaev is far from the sum of his worst moments.??In the war known simply as the struggle to survive, does there come a time in which the survivors can say, simply, enough?

There is a scene in the television series "Homeland" in which Abu Nazir, the terrorist mastermind bent on destruction of the west, the place I call home, tells a CIA agent that he and others like him don't care how long it takes to conquer the world. They will see us, and others like us, dead if it takes centuries to accomplish the killing.

I heard that and was inspired at once myself to kill, caring little about the means used to do so. And, truth be told, I am moved to lethal thoughts by the strategy and tactics of the terror directed against us. I can't help but wonder whether the box office success of "American Sniper" reflects a widespread not-so-secret longing to strike out at what threatens us.

In the criminal justice system, we kill by means of lethal injection in most states. I litigated such a claim years ago. One chemical anesthetizes, another paralyzes, a third stops the heart. When my time comes, I hope to go as gracefully into the everlasting night. I recall having just that thought as I listened to the testimony about how death was to be imposed on a client.

It troubles me to yield to the state this power to kill. We get it wrong in imposing death – innocents are killed. That's reason enough for me to oppose the practice still.

But—and the fact that the word "but" appears at all in this context surprises—I'm hard-pressed to agonize over the destruction of those who seek to destroy me and what I value. A world of perpetual love and peace is a theologian's dream, not mine.

Am I condoning tinkering with the machinery of death? Not at all. I'm merely recognizing that we've always done so, and probably always will. The marvel is that we paralyze ourselves in agonizing over it.t

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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