The Executive as Executioner and the Informed Governance Principle
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- Skladany, M. Criminal Law, Philosophy (2009) 3: 289. doi:10.1007/s11572-009-9078-5
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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.
KeywordsCapital punishmentDeath penaltyExecutionerExecutiveInformed governance principle
Why should our executives not execute? I will argue that if a federal death row inmate is to be executed, the President of the United States should, at least once, be responsible for physically carrying out the execution—e.g., injecting the death row inmate with a lethal substance—unless the President is opposed to the death penalty.1 Similarly, if a state prisoner is on death row, the governor of the state involved, if she is not personally against the death penalty, should, at least once, be responsible for physically carrying out the execution.2
I will not advance arguments for or against capital punishment.3 I will analyze the duty of the executive4 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 responsibility, referred to as the “informed governance principle,” requires that an executive who is not opposed to the death penalty perform at least one execution in order to acquire knowledge relevant to evaluating the justice of capital punishment. Such experiential knowledge is only one component of a comprehensive moral understanding of the death penalty, but it is necessary if the executive is to be as informed as possible. Requiring the executive to carry out at least one execution of a death row inmate 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.
I am not supposing that a premise of the discussion below is that capital punishment is a legitimate act by the state.5 Even if capital punishment is illegitimate, as I believe it is, the government does, as a practical matter, partake in the act.6 In this situation, it is still necessary to examine who should carry out the execution. Just because a government can act unethically does not negate the importance of examining who should carry out the unethical act. That said, I am also not assuming in this paper that capital punishment is illegitimate. I believe my argument is relevant regardless of the validity or invalidity of the institution of the death penalty.
The section entitled “Informed Governance Principle” will present the informed governance principle and explain why it requires an executive to execute at least one death row inmate. This section will also address other arguments in favor of having the executive execute a death row inmate.
The section entitled “The Method of Execution and the Executive’s Physical Proximity to the Execution” will look into the ethics of different forms of execution. It will be argued that the executive cannot just push a button in the Oval Office or in a governor’s mansion to execute death row inmates in distant locations.
The section entitled “The Cult-Executioner Executive” will explore the possible dangers behind having the executive act as executioner. It concludes that such risks are outweighed by the need to responsibly allocate power and that neither the executive nor citizens should be shielded from unpleasant aspects of power. Rather, the power of government should be made more transparent.
Informed Governance Principle
Being in a position of power, which by definition enables one to affect significantly the lives of others, ethically mandates one to attempt to understand others’ situations and the effect of one’s power. While this proposition may be true for all individuals who wield power, it is certainly a fundamental principle that ethically binds all government officials with substantial decision-making authority. I will refer to this ethical obligation, an idea that is not an existing principle but can be read into the writing of philosophers at least as far back as Plato, as the “informed governance principle.”7 As will be shown below, the informed governance principle that I rely on in this paper is derived from the theory of representative democracy.8 The major political theories—liberalism, libertarianism, communitarianism, utilitarianism, civic republicanism, citizenship theory, multiculturalism, and feminism—are consistent with the informed governance principle. This principle gives rise to an ethical duty for the executive to become more intimately familiar with the death penalty and personally carry out at least one execution if she supports the practice.
In an ideal democracy, the purpose of voting is to select a candidate whose responsibility or prerogative is to serve and uphold the public’s interest. It is morally wrong for an elected official, after taking office, to ignore the needs of the society that elected her because such a practice is antithetical to the spirit of democracy—it negates the voice of the voters.
A difficulty within democratic theory arises at this point. Should a politician attempt to carry out the exact, stated desires of the public or should she attempt to determine independently what is in the public’s best interest and act on her own assessment?9 This difficulty is only partially resolved by the fact that political candidates have an opportunity before elections to articulate to the electorate what they deem to be in the public’s best interest. Furthermore, it is improbable, though a hypothetical possibility, that a politician’s view of justice and what policies will maximize the welfare of a society will ever exactly map onto the view of justice and welfare maximization held by all citizens within a society. Even those who voted for the politician will most likely hold considerably different views from her and from each other on numerous policy issues.
In the first scenario, where an executive presumes she should strive to determine and implement what the public believes is in its best interest, the executive would have to attempt to collect as much information as possible not only about her constituency’s preferences but also about societal processes and policy issues and their effects on various individuals. A significant difficulty in implementing the voters’ desires is that they will not have access to all the same information and knowledge as the executive. If the voters had such access they would possibly change their opinions about what policies they desire. The executive cannot disregard what she knows but the voters do not; rather, she must consider whether such information and knowledge would alter their opinions.
In some situations it will be impractical for the executive to convey effectively certain information to which she is privy either because of security concerns or because of the inability to get across copious amounts of technical information or highly complex, emotional experiences.10 If such practical difficulties do not exist, the executive should communicate her privileged information to the public. But she would still face the constraint that if she conveyed all the information she has gathered to the general public, the absorption of it would require so much of the citizens’ time as to interfere with their ability to function in their daily lives. Hence, it would be inevitable that some important information that the executive collects about the death penalty could not be effectively conveyed to the public. This would force the executive to take the non-conveyed information and attempt to determine whether the public’s view of its own best interest would change if it knew the information.
Thus, even when the executive takes her job to be, as precisely as possible, realizing the public’s view of its best interest, the executive would be ethically bound to collect experiences and information to which the general public does not have easy access. The executive would have to become intimately familiar with the institution of the death penalty so as to not violate her obligation under the informed governance principle. If after acquiring all the information that she could, the executive still believes that society would desire the institution of the death penalty, she would be ethically required to carry out at least one execution. If she also believes in the efficacy of the death penalty, such an obligation would not be unethical for a society to place on her.
The informed governance principle similarly requires personal knowledge on the part of the executive in the second scenario, where the executive believes she has been given a mandate by the voters to implement her own vision of justice. Her duty to make an independent determination of the public interest obligates her to acquire as much knowledge about the needs and aspirations of her constituency and the processes of society as possible to increase the likelihood that she will have and maintain the correct view of justice. This search for knowledge is critically important to improving her ability to implement her policies effectively and would lead her to learn a significant amount about the death penalty, including, for example, the chances of wrongful convictions along with different ethical positions on capital punishment, such as Kant’s view that the death penalty is required to maintain the dignity of the executed if the death row inmate was a murderer.11 She would also need to understand more intimately how the institution of the death penalty psychologically affects different people: prison workers and their families, death row inmates and their families, the families of the crime victims, and individual members of society.12
The two critical issues behind both these scenarios are: (a) why the executive should have to learn about the institution of the death penalty and (b) why the executive must carry out at least one execution herself instead of just talking to a low-level government executioner in order to get a sense of what executing people is like. The justifications for both issues are the same.
State-sanctioned killing is the clearest manifestation of a state coercing its citizens. There is no other physical activity that so clearly expresses the nature of power. For a society to give its executive the sole power to stop executions, but not expect her to carry out at least one execution, is to grant someone an enormous amount of power without having her take on an equivalent amount of responsibility to ensure that she wields the granted power appropriately.13
There are few ethical issues in which performing the disputed act in question leads one to a powerful insight into the morality of the act. When I drive my car once a week to the supermarket, I know that I am hurting the environment, but the act of hurting the environment is bland and unmemorable. With other issues like armed robbery or non-state-sanctioned murder, the acts are so clearly wrong that there is no need to commit them in order to have the experience assist me in deciding whether they are right or wrong. Other ethical questions are hard for me to answer from experience given their nature. For example, it is not easy for me to find someone who is willing to have me help them commit euthanasia. Killing an animal you intend to eat is an exception to this general rule. Probably most meat eaters in America have never actually killed a farm animal.14 Not only do most Americans never personally kill the animals that they eat, society often takes great pains to ensure that individuals never have to be confronted with the death of the animals in any meaningful way. When one goes to the supermarket, one sees small pieces of meat that do not resemble animals.
The act of killing a chicken can be revealing ethically about one’s accepted habits, even if one does not ultimately accept Peter Singer’s views that we should not cause animals needless pain.15 One cannot meaningfully simulate the feeling or simply read about performing the act in order to understand it.16 Furthermore, by performing the act oneself, one reduces the chances that the information one collects is distorted. If it is difficult enough to convey precisely the legal holding of an opinion to someone else without having her read the opinion for herself, imagine what it must be like attempting to convey exactly how one felt when executing a human.
Personally taking an axe to a chicken will be an important factor in how one analyzes the ethics of eating meat, but it will not necessarily be the decisive factor or consistently turn meat eaters into vegetarians. Many other factors are important in deciding whether it is ethical to eat meat, and people will differ about the importance that each factor should receive. Yet it is difficult to claim that the experience of killing an animal one intends to eat is not an important factor.
Like the issue of eating meat, the death penalty is one of those ethical issues in which committing the act gives one significant insight into the morality of the act. Yet with the death penalty the act is much more significant, not only because we are dealing with humans but because of the institutional design of the death penalty.17 Anyone contemplating the ethics of eating meat can have the experience of killing an animal to help her decide about the morality of the practice. With the death penalty, only a very select number of individuals are in a position to perform state-sanctioned executions. Thus, only a select few individuals will have this rare knowledge that is highly pertinent to resolving the issue of whether the institution of the death penalty is ethically sound.18 If we know that only a handful of people can practically gain this experience given the small number of people on death row, as a society we have to ask ourselves whom do we want to have this intense experience and in whose hands will this experience be most useful for society.19
Giving a low-level government employee this experience does not help society gain a better understanding of the ethical issues behind the death penalty. On the other hand, the executive has the legal authority in many states to grant clemency and is the best situated to optimally use the experience to gain a fuller picture of the morality of capital punishment. Also, because the executive has the ear of the media, she can much more effectively and widely recount her experiences with capital punishment to the general public. There is little hope that a low-level government employee in charge of executing death row inmates will have the ability to widely disseminate her experiences and views about the death penalty to the public, let alone know how to contact journalists who could give her an effective voice. A low-level government employee would likely not think that she could intervene into the public policy debate or protest. That low-level power-wielders feel helpless to rectify institutional wrong was demonstrated by the famous Stanford prison experiment, which attempted to simulate the environment of a real prison with 24 volunteers randomly divided into two groups of 12 prison guards and 12 prisoners. The experiment was supposed to proceed over two weeks but was called off after six days because of the disturbing results. One of the many revealing findings was that “even the ‘good’ guards felt helpless to intervene.”20 Given that an executive would likely have experience of and comfort with instigating institutional change, she would probably not experience helplessness and hence would more effectively modify the status quo if appropriate.
Moreover, having an execution performed by an elected leader who has the power and access to communicate her experience to the electorate could spur citizens to reflect upon their important ethical commitments—specifically their stance on capital punishment. This could partially occur because we have a passive, yet familiar relationship with executives, which helps us personalize their acts. The public nature of the act could force voters to confront the very real consequences and thus the seriousness of taking a position. It could encourage the humility and deliberation requisite for a just society. Indeed, a society composed of individuals who never re-examined their ethical views would be dangerous.21 When people realize that they cannot be assured that their ethical beliefs are correct, they understand the need to occasionally re-examine them. Revisiting the foundations of their ethical beliefs helps minimize the risk that they would become oppressively intolerant and use unjust coercive measures against those with opposing beliefs.
Having the executive execute death row inmates would also more clearly delineate and make transparent the power of the government. It would maintain maximum visibility of the power of the government and government actors, instead of obscuring government power by delegating unsavory tasks to low-level government employees. It is important for a society to know where governmental power lies so that it can better (a) monitor the government to reduce the possibility that its power would be used inappropriately and (b) reflect upon how power is distributed in society and within government to maintain its optimal allocation. This transparency of power is particularly important with issues that involve physically coercive actions by government actors, such as executing death row inmates. It reminds us of the immense power that government wields.
While the above arguments might justifiably suggest that an executive should perform all the executions within her jurisdiction, they may not be strong enough to conclusively argue that this should be the case. They are however sufficiently powerful to demonstrate the ethical necessity for an executive to execute at least one death row inmate. Thus, if the executive is convinced of the utility and fairness of the death penalty, she should have to carry out at least one execution to ensure she truly understands the institution.22
One could argue that if the executive, after collecting a significant amount of information about the institution of the death penalty, is convinced of the wrongness and/or disutility of the death penalty, she should still be required to carry out personally at least one execution of a death row inmate to ensure that her stance would not be altered by the execution. Such symmetry of argumentation, while often attractive, does not work in this instance. The obligation to obtain information about the injustice of an act should not trump the obligation of the executive to carry out justice. It would be nonsense for the executive to carry out an act the executive considers unjust simply to confirm that it is an unjust act. It is a controversial proposition to argue that the executive should be ethically obligated to torture an individual to obtain information that might prevent a greater injustice from occurring, but quite another thing to argue that the executive should be obligated to torture an individual solely for the purposes of gathering information about the potential injustice of torture itself.
If the executive is against the death penalty, she could always grant clemency to all death row inmates facing execution during her term. This might be a practical escape valve, depending on the jurisdiction, and could prevent her from having to do something she does not believe is ethical.23 In 14 of the 38 states with a death penalty statute the governor cannot unilaterally act on her own in deciding whether to grant clemency to death row inmates. If these 14 governors are responsible for executing death row inmates, it is unclear whether, even without the ability to solely determine clemency, the governors could simply choose to not carry out executions if they are against the institution of the death penalty. If they could merely choose not to perform any executions, such choice would closely resemble clemency in the form of a reprieve from execution as long as no new governor is elected who favors the death penalty. This choice to just not carry out the execution orders seems to be at least a de facto prerogative of a governor as it would be difficult for another branch of government to force her to perform the execution or resign her governorship.
Having the executive execute death row inmates is feasible. As long as a sufficient number of guards are present and steps are taken to ensure that there is no possibility for the inmate to escape, it is difficult to deny that the security of the executive could be maintained. This brings up an important point—the fact that the executive can rely on substantial assistance from anyone within the executive branch to help her prepare to make an important decision or carry out an important act, as long as she is the one who ultimately carries out the execution.
Another concern is that the executive would have to expend so much time executing death row inmates, assuming she has not granted them clemency from execution, that she could not attend to her numerous other responsibilities. This concern is illegitimate.24 Performing one execution would only put a minor dent in her calendar, even if, as detailed below, she is required to be physically close to the inmate when executing him rather than pushing a button in the Oval Office.25 As stated earlier, if she is opposed to the death penalty she would not have to spend a single minute on executing a death row inmate.
The Method of Execution and the Executive’s Physical Proximity to the Execution
This section will explore what method of execution the executive can use. It will be argued that one of the criteria in determining which methods are appropriate is the physical proximity of the executive to the death row inmate during the execution.
Should the executive have the option of pushing a button in the Oval Office or in a governor’s mansion to trigger the execution of a death row inmate in a remote location? To shed light on this issue, it is helpful to think about how an illegal murder might be committed and whether there is a more or less wrong way of committing certain unethical acts. Is it less wrong morally to kill someone with a knife than with a gun? Numerous assumptions must be made to get at the heart of the distinction that is applicable to the button-in-the-Oval-Office hypothetical. We need to assume that in both instances the victim dies in the same amount of time after the trigger is pulled and after the knife is thrust—that the amount of physical pain and the duration of the physical pain are the same in both the stabbing and the shooting. We also need to assume that in both instances the victim is aware of the evildoer, that is, that the victim is confronted by the evildoer rather than unaware of the evildoer’s presence at the moment she is shot or stabbed.
Guns tend to sterilize the wrongness of killing.26 The evildoer does not have to stare into the eyes of the victim because she has the option of being 50 yards away.27 When the shot is fired, the victim does not fall onto the evildoer. The evildoer does not get covered in the blood of her victim. Stabbing a victim to death in comparison to fatally shooting someone is likelier to lead the evildoer to more fully appreciate the evilness of her action and in the future take responsibility for her acts.
Another reason the stabbing could be relatively less wrong than the shooting is that it might provide the victim with more respect. The victim is owed the recognition that she is more than a bottle on top of a fence that the evildoer can shoot casually without consequences; the victim ought to have her humanity recognized at the same time that it is taken from her. Even if this is not true, a stabbing victim is innocent, while an inmate has been found guilty. Consequently, even if proximity is more unpleasant for the executed, this is less important than the knowledge the executive would gain.
Thus, when the executive performs an execution, she should be physically close to the inmate to recognize the humanity of the inmate, but also to fulfill her responsibilities under the informed governance principle. This is not to say that the executive should be required to kill the death row inmate in the most personal manner possible. The competing interest of the inmate not to be subjected to cruel and unusual punishment must take precedence over execution in the most personal manner. Also, the executive’s responsibility to execute the death row inmate in the most personal manner possible is supplanted by the necessity to ensure the safety of the executive.28
The Cult-Executioner Executive
There is the possibility that an executioner executive would be traumatized by executing one or more death row inmates to whom she refused to grant clemency. The trauma from performing executions could cause the executive to become more empathetic, compassionate, or humble.29 It could also possibly lead her to renounce her previous support of the death penalty. While the trauma would have been harmful in one sense, the executive could view the trauma as on the whole having been a positive development in that it improved her understanding of herself and others.30
Another kind of development is possible. The trauma experienced from one or more executions could desensitize or corrupt the executive. The executive could, with each execution, become less empathetic and less able to understand the monumentality of taking human life. The danger of such a desensitizing is that it would spill over into the executive’s other responsibilities, negatively coloring her decision-making and implementation of other acts. She could also become morally corrupted by the trauma, learning to appreciate or enjoy the taking of human life. Such a development would turn her evil.31 As in the scenario where the executive becomes desensitized by executing death row inmates, the danger of the executive coming to enjoy the taking of human life would be that her enjoyment would influence how she carries out her other executive duties. But unlike the scenario of her becoming desensitized, her becoming evil would also call into question her capacity to make any decisions on behalf of others, let alone a nation.
The possibility of a desensitized or evil executive could also lead to the executive vaunting her willingness to execute death row inmates as a characteristic that should be admired or appreciated by the public. She could become a cult hero of savageness and this could contribute to the debasement of our culture and reduce the social bonds within society.32 These two risks are intimately linked through a contingent, causal relationship. Yet this causal relationship is in no way inevitable. Furthermore, the risk of a cult-executioner executive arising is not limited to this one possible causal path. Instead of the executive convincing the society to desire a cult-executioner executive, the society could come to desire a cult-executioner executive on its own.
The risk of a cult-executioner executive is real. Yet if the executive wants to debase the culture or spur others to be cold-hearted, she can already do so in a myriad of ways, either through her actions or through her decisions. It is legitimate for a society to be concerned about the concentration of too much power, but this concern does not relieve the society from the need to responsibly allocate power. Should we assign the responsibility of going to war to a government cook simply because the risk is too great that rival candidates for the Presidency of the United States would win votes by being too hawkish or too war-mongering? There are innumerable injustices that need to be corrected at home and abroad and unpleasant aspects of power that the executive has a responsibility to understand. Shielding her from such experiences and information out of fear that she will be desensitized or corrupted, and thus hurt society or unjustifiably infect it with her warped views, will only put society at a greater risk of suffering from the injustices and aspects of power from which we shield the executive. What would it mean for the balancing test to come out in favor of protecting the debasement of society from a possible cult-executioner executive? It would mean that the society would be so afraid of its own power that instead of reasoning about how to most effectively regulate it, the society would prefer to not see or talk about it and hope for the best.33 Such a society would be afraid of itself. It would be afraid of the desires of its citizens, and it would be too afraid to take responsibility for its existence and the free will of its citizens.
We currently live in such a society, at least in regard to state-sanctioned killing. There is a sickness at the heart of our current governmental practices, a dishonest attempt to turn our heads away from the responsibility of maintaining the institution of capital punishment.34 Our society refuses to take power seriously when it divides the job of deciding whether to grant clemency from the job of executioner. Doing so not only violates the informed governance principle, but also bureaucratizes tasks needlessly to obscure responsibility so as to create a sense of plausible deniability among government actors. Our current fright of our power to end life demonstrates a dangerous fear of living responsibly.
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).
See Plato (1997). In this vein, there is a long tradition of writing books and memoirs to inform kings how to govern. See, for example, the “mirror for princes” genre of medieval and early modern Europe: duc de Richelieu (1947), Louis XIV (King of France) (1970), and Budra (2000).
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).
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.
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).
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.