Fair Executions Impossible to Achieve

Josh Ashkinaze, Columnist

At the end of his inspiring Convocation talk, Brian Stevenson was asked, “Are there people who deserve to die?”

And he answered something like, “Personally, I do not think so.” We are not our worst action. But it wouldn’t matter if there were people who deserve to die. Does the criminal justice system — with all of its known faults and errors — really deserve to kill people?

This is the moral paradox of killing criminals: Even if you believe some people deserve to die, who deserves to kill?

140 countries have banned state-sponsored capital punishment. Many people, myself included, are uncomfortable with the U.S. government exercising the death penalty. But there is another history of capital punishment, and I’ve never heard that history mentioned.

This is the history of outlaw status — a sentence declaring a criminal outside of the law, subject to mob violence and stripped of legal recourse. We now think of outlaws as people with bandanas and hats roaming the desert or wreaking havoc on trains in the 1800s. Those outlaws chose to live outside of the law, but the original outlaws were not outside of the law by choice. Outlaw status was like a democratized death sentence.

Outlaw status existed in Ancient Rome and in many premodern societies. In pre-Magna Carta England, for example, being issued a Writ of Outlawry was the harshest punishment — anyone could kill you and take your property, not just the state. There was an English legal phrase for outlaws, caput gerat lupinum, or “Let him bear the head of a wolf.” If you were an outlaw, you were a lone wolf. You had no protection.

Of course, to sentence somebody to outlaw status seems barbaric. On a pragmatic level, I would rather not live next to neighbors who, to brighten up their mundane Wednesdays, club outlaws to death. And, on a moral level, isn’t this the crowdsourced, licensed killing of a whole community of murderers? Yet at the same time, 140 countries have abolished the modern, state-sponsored death penalty. That method’s clearly not optimal either.

Neither a mob nor the state government seem to be appropriate executioners. The practical problem with thinking that criminals deserve to die, then, is that it’s difficult to pick a just executioner.

On April 29, 2014, Oklahoma performed one of the worst, most inhumane and botched executions in the bad, inhumane and botched history of American executions. It was a bumbling 42 minutes long.

The man to be executed was Clayton Lockett. Why was Lockett on death row? On June 3, 1999, Stephanie Neiman, a recent high school graduate, was driving a friend home. She arrived at her friend’s house at the same time Lockett and two accomplices were planning a break-in. The trio raped Neiman’s friend. When pressed, Neiman refused to give up her car keys. Eventually, the men drove Neiman to a dirt road and threatened her, but she still maintained that she would go to the police. Lockett and his accomplices started to bury her alive, then finally shot and killed her.

Perhaps the executioners, those in charge of delivering the lethal doses, thought that Lockett deserved to die.

But imagine 40 minutes into this hellish spectacle, with Lockett gasping for his last breath. Maybe the executioners were also thinking, “But why are we the ones to kill him?”