Virginia and Killing: It's Time For Abolition

I won't pretend to be neutral about the death penalty. The state ought not to have the power to kill its citizens. Period. It is too awesome and final a power, and it has historically been used too many times for reasons having nothing to do with justice. The death penalty should be abolished in the United States, as it has been in Europe.

But we still kill, apparently with relish. Texas has put 463 people to death since 1976; Virginia has put 106 to death. No, wait. Make that 107 for Virginia. Last night the state killed a retarded woman, shooting 41-year-old Teresa Lewis full of poison for her role in arranging a contract killing of her husband and stepson in order to collect on a $250,000 insurance policy covering the stepson.

We have put 1,226 people to death in the United States since the death penalty was once again put into use in 1976. That was after Furman v. Georgia struck the penalty down as arbitrary and capricious, administered in a manner that left its imposition as freakish an affair as being struck by lightning. States with a taste for the blood of their own citizens responded with a new and improved death penalty specifying death-eligible offenses and separating determinations of guilt from that of sentencing. But the law is still freakish. Poor people, retarded people, mentally ill people and people of color are most often the victims of state killing. Are men targeted too often?

Only 12 women have been put to death in the past 34 years. Twelve hundred and fourteen men have been ushered off the planet in that time. Some contend that there is a gender bias in the law. We are quick to kill when a stranger turns a violent hand toward another stranger; less quick to kill when mom whacks dad in the heat of passion. Drawing such distinctions is macabre.

Even in cases in which there is no danger of mistaken findings of guilt, where there is no doubt about what the defendant has done, the death penalty still terrifies. It sends a message that the state is somehow an arbiter of good and evil. The state plays no such role. We don't worship at an altar draped in a flag; we debate whether good men can be good citizens; we regard the state as a necessary evil. Permitting a prosecutor or jury to play the role of executioner gives to the state the power to take life; yet the state has no power to create the life it destroys. We all tumble from wombs into a chaos our parents seek to tame as we become socialized to governing norms of conduct; the law is merely one set of norms, defining minimum conditions of decency between strangers. It is dangerous to let the state over-reach into a moral domain regarding the value of life and who should sacrifice the right to life.

Ms. Lewis undoubtedly made cruel and unforgivable decisions. Whether these decisions were informed by her borderline mental retardation is beside the point. We could easily have justified a sentence of life without possibility of parole in her case. That would have sent a message about what conduct we are prepared to tolerate. We could have done this without killing her, and giving the state a taste of our own blood.

Thomas Hobbes in the Leviathan granted the state absolute power. The state had this power because in the absence of such power, no individual would be secure against the violence of what he called the state of nature. Yet even Hobbes realized that giving the state the power to kill was going too far. We create the state to preserve life; we call the norms governing the state and society civilized. Giving the state the power to kill returns us to a condition of savagery.  Hobbes asserted that when the state sought to kill, the target of the state's wr ath had no obligation to obey. He was morally justified in meeting lethal force with lethal force.

Hobbes got it right.

Ms. Lewis went gently into the night, defeated in mind and body. I mourn her, as I mourn the death-dealing machinery extant in our states. I wonder whether we are justified in resistance to a power that kills without justification?

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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


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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