This is a happy day for my family: my brother-in-law, a lawyer and diplomat, just returned from a dangerous year in Afghanistan, where he lived in a 10×20 container while serving as director of the U.S. inter-agency program on Rule of Law. He was charged with helping the Afghans to set up a legal system out of, essentially, nothing. Over dinner last night, my brother-in-law told us that the Afghan people he met expressed a deep yearning for a fair, impartial, and corruption-free judiciary. In fact, many had turned to the Taliban only in desperation because the existing legal system was so crippled. He also told me, interestingly, that the current Afghanistan government rarely uses the death penalty and had only performed one execution in the last two years.
I’m reflecting a lot on these observations in view of my thoughts on the death penalty expressed here at TIME.com, and the fevered pro-capital punishment reaction from most of the commenters. It seems to me that if the Afghan government, reeling from centuries of warfare and dysfunction, is searching in earnest for restorative justice and is able largely to resist the temptation to kill murderers, surely the United States, with all its munificent resources and long history of legal protections, should be able to get its act together and find more civilized and less costly alternatives to putting people to death.
Here’s an excerpt from a comment on my recent TIME.com piece on the death penalty. The author has been flooding my inbox with righteous indignation about my stupidity/naivete/alleged lies and blah blah and yet hasn’t once explained whose interests, exactly, are served by these executions he so favors.
Some murderers are stupid, some are not. My guess is that 90% of murderers cannot afford their own private counsel. My advise to all murderers: You shouldn’t have murdered someone, I have zero sympathy that you must use public counsel.
Wow, how about starting with a little refresher course here? Recall that our legal system hinges on that quaint concept called “Presumption of Innocence.” Not all accused are guilty, is another way of putting it. Period. And justice, by the way, is not only for the rich and intelligent; that’s the deal. Our legal system is supposed to be applied fairly to all, and – sorry, Mr. Indignant and All-Knowing Commenter – that includes the provision of competent legal counsel for those who can’t pay, including the guarantee of a public defender who can keep his eyes open during the trial and meets other reasonable standards of professional conduct. It’s ridiculous to feel affronted by this social contract for the presumed innocent. It may feel stomach-churning at times. What’s the alternative?
Do you get to decide who is and isn’t worthy of a fair trial? Me? The police? Religious clerics? Politicians? Societies descend into barbarism when people like my righteously indignant commenter presume to decide who is a priori an enemy of the state. [Take a look at the movie Sophie Scholl: The Final Days, one of the most chilling stories I have ever seen on film, about a sham Nazi trial that resulted in the execution by guillotine of a 21 year-old student member of the German resistance.]
My commenter apparently thinks only “bad” people are put on trial and thus he needn’t be concerned with who can or can’t afford effective counsel. History, of course, shows that to be a lie. As the German pastor and Dachaus survivor, Martin Niemoller, once said:
First they came for the communists,
and I didn’t speak out because I wasn’t a communist.
Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.
Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.
Then they came for me
and there was no one left to speak out for me.
Even very recent history should make us afraid: DNA evidence is overturning the convictions of people falsely imprisoned for rapes they didn’t commit. But let’s do a thought experiment: even if there are, indeed, only “bad” people on trial — a laughable untruth, but bear with me for a moment. Here’s the problem: the things that go wrong in criminal trials with dismaying regularity- grossly incompetent legal defense, false confession, police-tampered evidence, prosecutorial misconduct or over-reaching in an election year – all of these things cheapen our citizenry, regardless of what kind of person is the recipient of the legalistic wrongdoing. And there’s a slippery slope. A state that engages in such malfeasance — and a citizenry that is unmoved by moral rot — is just a few steps from falling into anarchy. I’ve been reading George Orwell’s essays on totalitarianism and it’s chilling to see how much of what he described is echoed in the arrogance and flippancy of a number of death penalty proponents: their unwavering confidence in the infallibility of the state; their bizarre claims of omniscience; their ‘us vs. them’ emotional distancing; their linguistic distortions and intellectual tautologies.
I know the day will come when we see the death penalty for the barbaric anachronism that it is. If nothing else will jolt us awake, the costs of executions will eventually persuade even the most die-hard advocates to abandon capital punishment in exchange for life imprisonment. I hope I’ll see it in my lifetime.