GOVERNOR RYAN'S DECISION TO EMPTY ILLINOIS' DEATH ROW:
A Clear Sign of America's New Abolitionism with Respect to the Death Penalty

By AUSTIN SARAT

Wednesday, Jan. 15, 2003

Illinois Governor George Ryan recently made headlines with his dramatic commutation of the sentences of everyone on that state's death row. His controversial, yet well-grounded, decision marks a watershed moment in our nation's long struggle over capital punishment.

Governor Ryan explained his decision by reference to Illinois' particular death penalty system, which he called "arbitrary and capricious - and therefore immoral." Instead of raising abstract philosophical issues, Ryan focused on the need to confront the day-to-day realities of the death penalty system. In Illinois, he explained, a close look only indicted the system, which turned out to be fraught with error and irrationality.

In addition to its other problems, the system was unable even to separate the guilty from the innocent, as DNA tests had showed. And with this error exposed, Ryan worried there were more: "If the system was making so many errors in determining whether someone was guilty in the first place," he reasoned, "how fairly and accurately was it determining which guilty defendants deserved to live and which deserved to die? What effect was race having? What effect was poverty having?"

Ryan perceptively concluded that the DNA exonerations, rather than solving the system's problems, only were a single, blatant symptom of them. Ryan's decision to empty death row entirely, rather than to go case-by-case, is perhaps the only ethical response to the dilemma he sketches.

Ryan believes, and has cited evidence to show, there were thoroughgoing problems in the process leading up to one of the most momentous decisions government, or anyone else, can ever make: The decision to take a life. And he has responded by saying, I won't allow that decision ever to be made, on my watch at least, as the result of so faulty a process.

Ryan's decision, and his explanations for it, offer Americans new ways to think about the death penalty. With his commutation order, Ryan has become the leading spokesperson for a new abolitionism - one that is resilient, difficult to counter, and likely to be long-lived. Who among us is comfortable with executing the innocent? And more, who among us can confidently say that a system that has led to executing the innocent, is unlikely to have other egregious flaws?

Traditional Abolitionism: Philosophical Imperatives

In the United States, opposition to the death penalty traditionally has been expressed in several guises. What they all have in common is their abstraction: Declining to focus on the details of the death penalty system, they pitch their points at a more philosophical level. Unfortunately, whatever their merits, they are not much aided by evidence: Either you believe them, or you don't.

For instance, some traditional abolitionists have opposed the death penalty in the name of the sanctity of life. Even the most heinous criminals, they urge, are entitled to be treated with dignity. Or as former Supreme Court Justice William Brennan once wrote, there is nothing that anyone can do, no matter how terrible, that will lead him or her to forfeit the "right to have rights."

Other traditional abolitionists have emphasized the moral horror, the "evil," of the state's willfully taking the lives of any of its citizens. Still others believe that death as a punishment is always cruel and, as such, is incompatible with the Eighth Amendment's prohibition of cruel and unusual punishment. To these abolitionists, it matters not if the electric chair, lethal injection, or another method is used; the penalty itself - and the psychological effect on the prisoners awaiting it - is the unavoidably cruel thing.

Each of these arguments mounts a frontal assault on the death penalty, and each has put death penalty opponents rhetorically on the side of society's most despised and notorious criminals - the likes of Ted Bundy or Timothy McVeigh. Opposing the death penalty uniformly due to a philosophical theory, after all, requires opposing every single instance of its application. On this view, even executing McVeigh was a tragedy and an immorality.

With mass murderers as allies, it is not surprising that traditional abolitionist arguments - raised repeatedly in philosophical commentary and legal cases, have never gained much traction in the ongoing political debates about capital punishment in our nation. Worse, these arguments may suggest to death penalty supporters, who see McVeigh's execution as no tragedy, that abolitionists may have their collective heads in the sand.

Just as it's virtually impossible for most Americans to endorse the execution of innocents, it's also virtually impossible for most Americans to shed a tear for McVeigh. And that meant that abolitionists wisely chose a new tactic: They choose to play to what the majority of Americans believe, not to challenge it.

The New Abolitionism: Practical, Systemic Realities

Governor Ryan, for instance, did not focus unduly on the rights of the condemned - the obsession of the traditional abolitionist. Instead, he spoke more about the aspirations and values of his fellow citizens: the kind of people we are, and the kind of people we want to be.

Ryan's was the familiar language of due process, equal treatment, fairness, and the simple but incontrovertible proposition that the innocent should not be executed. His was the language of the American mainstream - of scrupulous, fair-minded people committed to the view that even in death cases, and perhaps especially in death cases, justice must done justly.

Governor Ryan's new abolitionism is a reluctant abolitionism, one rooted in a recognition of the damage that capital punishment does to ideals and values that Americans cherish. We should, Ryan argued, fix the broken capital punishment system; if we cannot, we must end the death penalty, much as some among us might long to retain it.

We should do so, Ryan made clear, not out of misplaced sympathy for those on death row, but because we care about America, and American values, and want to save them from further damage. As Wisconsin Senator Russ Feingold recently put it, "The continued use of the death penalty demeans us. [It] is at odds with our best traditions."

Why the New Abolitionism Is Likely to Enjoy More Success, Far Beyond Ryan's Decision

Crucially, the new abolitionism that Ryan champions provides abolitionism with a position of political respectability. There is an overwhelming political consensus in favor of death as a punishment, but the genius of the new abolitionism is that it need not mount a quixotic fight against that consensus.

Indeed, a new abolitionist could theoretically believe in the retributive or deterrence-based rationalizations for the death penalty. He or she could believe that in theory murderers deserve death and that the death penalty will deter potential murders - but could also still believe that we cannot use the penalty because we cannot tell reliably enough who the true murderers are. Put another way, the new abolitionism means that one can be as tough on crime as the next person, yet still reject capital punishment.

Rather than fighting a consensus, the new abolitionism points out a tension between two widely-held views. National polls now show that around 70% of Americans support capital punishment. Yet in those same polls, between 40 and 50% of the people express serious concerns about the possibility that an innocent person may have been executed in the U.S., and serious doubts as to whether the death penalty is fairly applied.

Governor Ryan's brand of abolition provides an avenue for people like these eventually to express their concerns in a rejection of capital punishment. It has the potential, then, to convince Americans to stop one kind of killing that we have it within our power to stop: capital punishment.

Now may be the moment when people across the political spectrum will be able to join with Ryan and the late Supreme Court Justice Harry Blackmun in refusing any longer, as Blackmun put it, "to tinker with the machinery of death." Ryan should be lauded for adding further impetus to the new abolitionism, and for highlighting evidence that suggests just how seriously broken the machinery of the death penalty system actually is.


Austin Sarat is William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College and Past President of the Law & Society Association. He is the author of The Killing State: Capital Punishment in Law, Politics, and Culture and When the State Kills: Capital Punishment and the American Condition (Princeton University Press, 2001). His previous columns on capital punishment for this site may be found in the "Guest Columns" archive.

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