In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
—Sixth Amendment, U.S. Constitution
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
—Eighth Amendment, U.S. Constitution
“Thomas Miller-El has been on death row in Texas since 1986.”
— Picture caption in The New York Times, Sunday, December 5.
Capital punishment is a vexatious issue. It is commanded in the Old Testament and not abrogated in the New. It has been so taken for granted throughout the history of civilization that we can hardly imagine history without it.
By this time we should know what we are doing, but we don’t. Maybe you deserve to die, but it doesn’t follow that we have the right to kill you.
About many related issues - justifiable homicide, accidental death, and death in wartime – we have come to a reasonable consensus. With capital punishment, however, we are driven by a mishmash of legal opinions and political considerations, many of them in contradiction to the sixth and eighth articles of the Bill of Rights. This venerable document does not forbid capital punishment, but neither could its framers have foreseen the ethical obscenity of keeping a person under the threat of impending death for eighteen years without resolving his case. That is cruel, unusual, and ridiculous. They also could not have foreseen an appeals process that stretches the actual trial – the one which ultimately decides the fate of the accused – beyond the lifetime of many jurors who rendered the verdict. There was no speedy trial in the ordinary sense of “speedy.” The actual trial is ongoing because the fate of Mr. Miller-El is yet to be finally determined.
Sometimes the Bible is used to imply that God not only approves of capital punishment, but that he commends our way of imposing it. What is forgotten is that the laws governing capital punishment were given to a people whose identity was established by their relationship to the living God. Ours was not and is not. In Exodus and Leviticus there are at least eighteen instances in which death is the prescribed penalty. The offenses listed are much broader than we claim today, but they have two elements in common:
- The lack of doubt as to the guilt of the condemned person – not of the accused person but of the condemned person.
This worked pretty well because they were more interested in the truth than our system is. Our prosecutions are more interested in eliminating doubt than in establishing the truth, and our defenses more interested in creating doubt than in telling the truth.
The biblical prescriptions are black and white, with few mitigating circumstances. For example, a child who strikes his parent must be put to death. That he lost his temper, or is just a kid, or deserves a second chance, do not apply. (This does not mean that every child who did this was killed. I suspect most of them were simply hit back, a lot harder, as a warning not to try that again.) But the law was the law. There was no excuse, but there could be mercy. King David murdered one of his senior officers because the man’s wife was carrying David’s baby. The consequences of it for David and his family were terrible, but did not include the execution of David for murder. In contrast, we deal in excuses, mitigating circumstances that justify rather than mercy that forgives.
Biblical standards of capital punishment are straightforward, hardly a term that describes the American legal system. To apply them as they are written, there must be first of all a fear of God in the land. Then we would have to abolish our adversarial legal system, the use of jury consultants and expert witnesses, the practice of executing people without the certainty of guilt, absurd delays between sentence and execution, and saying “Oops!” without accountability after we have executed the innocent.
Since I do not foresee a return to a biblical commonwealth any time soon, the sanest resolution is to forego capital punishment until the day we can do it with justice and honor. Then perhaps we won’t need it.
This article could be read to imply that Mr. Miller-El should be dead by now. That is not the point. The point is that after 18 years we still do not know whether he deserves to die. If we don’t know by now, the judge and jury certainly didn’t when they imposed the sentence.
If there is one thing the government must get right, without exception, it is capital punishment.