Kevin De Liban

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Down By Law, Volume 2

Assassination Day: This is part two of our Down By Law series where Kevin De Liban, the Legal Lyricist, explains relevant tenets of law, government, and justice in accessible ways.


Disclaimer: This is all written in my capacity as a private citizen, and the view stated here do not reflect those of my employer. 


"Homicide is illegal and death is the penalty, 

What justifies the homicide when he dies?"

--Masta Killa, "Da Mystery of Chessboxing" 


One aspect of the rule of law is what happens when laws are broken. There's a distinction between criminal cases, where the government is the only party than can enforce the laws, and civil cases, where private citizens can enforce the laws by suing (in some instances, the government can enforce laws in civil cases, too). The penalties are different. Criminal cases carry the threat of incarceration, execution, fines, and continued government oversight through parole or probation.  Meanwhile, the penalties for civil cases mostly involve damages, basically meaning money compensation for losses suffered, or other financial penalties. Sometimes, in civil cases, the court can also order someone to do or stop doing something specific. State or federal legislatures, within the powers granted to each, get to define what kinds of actions will be crimes and what the possible sentences are. Most states have a death penalty that can be applied only to the crime of murder and, even there, not in every kind of murder.

After not executing anyone since 2005, Arkansas recently scheduled 8 executions to happen over a span of 11 days. The given reason is that the state acquired the three drugs required for the lethal injection cocktail and that one of the three drugs is set to expire at the end of April. Once the drug expires, there'd be even stronger bases for legal challenges to the executions. The state's position is that it's better to kill them quickly now and en masse rather than risk not being able to kill them at all. Lawyers for the defendants have initiated a slew of legal challenges, the latest of which was successful in halting the executions

The death penalty's pros and cons are more nuanced than I can get into here in more than a snapshot sense. The few studies suggesting that the death penalty deters murder appear unreliable and are opposed by many other studies showing no deterrent effect. Without clear evidence of deterrence, the debate then centers on both moral considerations and pragmatic concerns. Often, people supporting the death penalty phrase their support in terms of victim's rights and closure for the victim's family. In that moral universe, the killer's death will compensate for the taking of the victim's life or, at least, eradicate one particular and identifiable source of evil from society. Opponents of the death penalty emphasize that the inherent dignity of human life--even that of a convicted murderer--forbids society from killing. There have also been at least 20 exonerations of death row inmates by DNA evidence, highlighting the possibility that society will be killing the wrong person. The death penalty is disproportionately applied where the victim is white, suggesting that victims of color are somehow less worthy of society's vengeance, and disproportionately applied to black defendants, feeding into racialized narratives about who deserves to die (or whom the government should be allowed to kill).  Practical considerations abound, too, with death penalty litigation more costly than murder cases where the death penalty is not an option and more costly than lifetime incarceration (also, here). There are also concerns that prosecutors charge defendants with the death penalty as  leverage to get defendants to plead to a lesser charge that doesn't carry the death penalty.  

Whatever the debate about the merits of death penalty, the state of Arkansas has chosen to adopt the death penalty and has chosen to apply it to these 8 men. From all accounts, the Arkansas legislature adopted the death penalty in a lawful manner, these 8 men were tried, and juries decided to impose the death penalty. So, why shouldn't Arkansas be allowed to kill them? Wouldn't stopping the executions in fact undermine the rule of law, as manifested through the legislative decision to adopt the death penalty, the voters who elected the legislators, and the jurors who sentenced the defendants? Indeed, the federal court judge who has effectively halted the executions emphasized these points in the first three pages of her ruling. 

So, what's the challenge about? This is the where the rule of law gets interesting. The recent legal challenges in Arkansas are not based on the merits of the death penalty or on whether the sentences were lawfully imposed, but rather on whether Arkansas can carry out the executions in a way that would not cause cruel and unusual punishment, which the Eighth Amendment of the U.S. Constitution prohibits (again, see the first few pages of the judge's ruling). In other words, here, at least, there's no question that the state can kill as long as it kills humanely. The judge simply ruled that, based on the preliminary evidence available, the drug cocktail that Arkansas plans to use is too likely to cause the defendant's severe pain to allow the state to move forward right now.

Humane killing? However oxymoronic the term, is that all the law requires? Yup. Victory here--the outcome of thousands of hours of work--just means that that the state will have to kill according to some other schedule or in some other way. So, what's the big deal? 

The case is important for the lives at issue, of course. Assuming the judge's ruling stands, Arkansas's supply of the drug cocktail will expire, meaning that it will have to secure more in order to carry out the executions. However, drug companies don't liketo have their products used to execute, and they don't sell them freely to states or prisons. So, if the state is intent on executing these men, it may have to adopt the firing squad, which harkens to older, more barbaric days and is a proposal likely to be accompanied by a highly visible public debate. Thus, the present case can re-center the moral issues in its effect, if not in its immediate substance. 

But, for all the attention on this issue, here, the rule of law is providing for killing of citizens while at the same time providing a floor below which society is not allowed to sink in doing so. We can kill killers, but we can't torture them to death. Stated like that, the whole notion feels absurd. Still, the prohibition on cruel and unusual punishment for forfeited lives isn't meaningless. 

Governments, whether for military or scientific ends (sometimes, both at the same time) are all too capable of devising awful techniques for inflicting pain or, at least, wanting to study the effects of pain.  But, there's a very real question of who is a legitimate target. We know of U.S. officials using water-boarding on people it termed "terrorists." Various Latin American dictatorships,with some support by the U.S., targeted "leftists," a term that included professors, university students, unions, and rural peasant organizations, and inflicted all sorts of torture to try to obtain information to root out "subversive" elements of society (of course, the U.S. government was particularly hostile to domestic parts of the left before and during the Cold War that resulted in some state-sponsored violence and witch hunts, but that didn't generally amount to a regimented system of torture). The long-term effects of untreated syphilis were studied by a federal public health team using poor, black, rural sharecroppers in Alabama (the Tuskegee experiment), who were not even presented with the option of receiving treatment once penicillin was shown to be effective. There are countless other examples from other countries, too. Somehow, all of that pain is acceptable because the people exposed to it do not deserve any better. 

So, the affirmation that an overly painful death or torture is inappropriate for those lives with presumably the least value--death row inmates--maintains some public acknowledgment of the dignity of all life. In practice, however, so much that violates this mandate goes unnoticed or unpunished, whether police brutality, neglect of inmates' need for medical treatment, excessive use of solitary confinement, or overcrowding in prisons and immigrant detention centers. There are several reasons. Monitoring the criminal justice system is not a high enough priority for lawmakers such that they fund independent oversight. It can be hard for prisoners to effectively bring lawsuits or get access to the relatively few legal groups who advocate on behalf of prisoners. Prison guards and police officers have closed cultures that discourage reporting abuses or cooperating openly with investigations. And, in light of indiscriminate vilification of prisoners (i.e. a non-violent drug offender may be seen as just as much of a "criminal" as a murderer or rapist), it's unsurprising that society doesn't see them as worthy of safeguards or belief.  

The divergence between the law and reality underscores that laws are often intentionally left to be aspirational and incremental, a testament not to where society is, but where it ought to be and might slowly go. And, even in this aspirational context, there is presently no legal tenet that aspires to totally stop executing prisoners. Unexpectedly, Arkansas's ambition for death may be an accidental catalyst for change.