Tuesday, November 17, 2009

Let's Call the Whole Thing Off

A couple of notes on perception.

It must have been shortly before the bread pudding was brought out the other night that one of the guests at the dinner party mentioned, sort of in passing, that he and his partner of many years (who was out of the country and therefore not present) had recently gotten married. As one, we raised our glasses in congratulatory toast.

I don't know where they went for the wedding, though it certainly wasn't held in Ohio. I'm also not much concerned about that right now. What interests me about it is that it seemed the most natural and sensible thing in the world and that none of us so much as blinked at the idea. OK, we were a selected group. I know not everyone would feel as we did about a couple of men getting married. To many (most, if election returns from around the country are meaningful), it's a horror and an outrage.

In my world (not my state or nation, alas, but my circumscribed world of people with whom I regularly interact) the only question about same sex marriage is why same-sex couples would want to marry. It's a variation on the question we raise about women in combat.

It's not a matter of whether women should be allowed in combat. Of course they should. Rather, we're inclined to ask why they would want to be in combat? Why, we might ask, are you pressing for the right to do something you should be running from?

And so it is with same-sex marriage. As a long-time, happily married man, I'm comfortable with the institution of marriage. But what moves me about it is the commitment ceremony, not the legal institution. If there's no desire (or ability) to obtain an religious union (and if that's all you want, and you can find a religious leader who will perform a ceremony, you're in; no need to worry about government acceptance) and no progeny to legitimate, then why is marriage better than (or even different from) civil union except linguistically?

And while I fully understand the power of the word (which is why so many people who have no formal objection to civil unions are so bitterly opposed to marriages) I wonder at society's willingness to cave to that power.

A few hours ago, I was commenting on the concertina wire in Costa Rica. I wondered, as I do, if the wire didn't induce in me a greater fear than was deserved. A couple of months ago, addressing a different subject, I wrote this.
When I was in Central America in the mid 90s, I was struck by the ubiquitous presence of armed guards. Every McDonald's had a kid in a paramalitary uniform carrying an automatic weapon. And I mean kid. The average age of armed security in the fast food places looked to be about 16. The miracle is that more people didn't get killed.

When I was in Central America a couple of years ago, I found that, along with all the armed kids guarding businesses and directing traffic, the entire landscape was now bound with concertina wire. Every home, every business. Mansions and shanties.
My subject then was surveillance and how it is, ubiquitous. There's no getting out from under the blossoming eye. My subject today is perception and response, and what really struck me about all the concertina wire and the armed guards in San Jose was that it created, at least in me, not a sense of security but a sense of fear.

If we have to live in an armed camp, how dangerous it must be to step outside. And even inside we're cowering.

I doubt that the natives shared my perspective. I doubt that the expats who were happily ensconced behind the barbed wire did, either. They felt safer because of the security, safer in their homes and, I suspect, safer on the street (though I don't even begin to see how that last could be so).

We have a friend whose child had never heard "Let's Call the Whole Thing Off" but was supposed to sing it. She saw the lyrics and just couldn't make sense of "You say 'potato' and I say 'potato.'"

I tell these stories because I think they're interesting in themselves. I tell them together and today because what they point to is directly relevant to Ohio's new and allegedly improved execution protocol.

Here's a question.

Imagine yourself a committed abolitionist. Government should not be in the murder business. Period. The killings are cold, brutal, immoral, perhaps evil. And they cannot be made less so.

Now the opportunity comes along to fix the death penalty. We'll stop killing those with mental retardation, stop killing kids, stop killing the seriously mentally ill and the plausibly innocent. We'll make the deaths painless and peaceful. We'll treat everyone with dignity and honor. We'll kill so that a 21st century society can say, honestly,
If you're going to kill, this is how to do it.
What do you do?

Do you embrace this humane form of death dealing? Or do you declare that since all state killing is evil, trying to pretty it up is a sham. More, it encourages the killing. After all, we're more willing to do what doesn't seem offensive. But if we're going to kill, shouldn't we admit to it? Own up to the horror of what we're doing? And might no that demand lead to revulsion and abandonment of the death penalty?

The capital lawyer's answer is necessarily peculiar to the task. As counsel, I ask if it will advance my client's interests. I can't endorse torture for my client who wants not to make a statement but to die without pain. I have to favor taking my client with mental retardation off the row, even if removing those categories of people from death makes it easier to say,
Now we can kill the rest with a clear conscience.
But as an abolitionist? As an activist? How do I feel about the more-humane-way-to-do-an-inhumane-thing?

So here's where we've come. The three-drug sequence for lethal injection is a time bomb. We really don't know how often it goes wrong, but we (and by "we" I mean everyone with even a little bit of knowledge about how these drugs work; these claims just aren't in dispute) know that if it goes wrong in certain sorts of ways the condemned person, the victim, will suffer a horrible, agonizing, excruciatingly painful, torturous death. And we know that we can reduce the risk of that very substantially by going to the one-drug system Ohio just adopted.

Is that something we should do?

In Baze v. Rees Chief Justice Roberts noted that the one-drug system
has problems of its own, and has never been tried by a single state.
So we don't actually know that the one-drug system will work as intended. We don't know what will happen because we haven't used it on people.

But should we favor it?

How we respond to the newly married gay couple is in large part a function of our culture. Not the broader American culture, but the culture of our own communities, not geographical but social. Similarly, whether the concertina wire comforts or scares is a function of how we view it.

And so with a new and improved killing system. We don't want the inmates tortured. But maybe open torture of a few would lead to abolition. After all, we've given up waterboarding.

Haven't we?

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