Sunday, March 6, 2011

Monsters redeemed

It's the fifth and final act of Shakespear's King Lear, the part of the play when nearly all will turn to dust.
Spoiler alert if you haven't read/seen the play.  (And if you haven't run out and do that.  Come back her someday when you have.  Or just keep reading.  It won't hurt the dramatic
Lear will have a moment of lucid understanding and the briefest of reconciliations with his loving, kind, angelic daughter just before she dies.
Why should a dog, a horse, a rat have life,
And thou no breath at all?
Then, again, Lear descends into madness.  And then he dies. 
The English kingdom is restored, but it's France that restores it.  The royal line is gone.  Only a few loyal, decent men remain.  And they are in mourning.
Is there a lesson here?  Gloucester offered this in the fourth act.
As flies to wanton boys are we to th' gods,
They kill us for their sport.
But amid the bleakness and emptiness, as there is in all tragedy, there is hint of redemption.  From dust comes, rebirth or at least a glimmer.
I'm not talking phoenix-like beauty or grandness.  Certainly not a heavenly kingdom.  But something allowing for the possibility of the better.
Which brings me, in my typically roundabout way, to an unusual op-ed in today's New York Times and a decision this week by the U.S. Supreme Court.  
The op-ed first.  The author is Christian Longo.  Here's the first sentence.
EIGHT years ago I was sentenced to death for the murders of my wife and three children.
And no, he isn't writing about a claim of innocence or mistreatment by the courts or cheating prosecutors or lousy defense lawyers.  The next two sentences make that clear.
I am guilty. I once thought that I could fool others into believing this was not true.
What, then? In fact, the subject is organ donation.  
There's a serious shortage of organs for folks who need them.  And then there are folks who are going to be killed.  Longo provides data.
According to the United Network for Organ Sharing, there are more than 110,000 Americans on organ waiting lists. Around 19 of them die each day. There are more than 3,000 prisoners on death row in the United States, and just one inmate could save up to eight lives by donating a healthy heart, lungs, kidneys, liver and other transplantable tissues.
OK, not everyone on the row would want to donate, but Longo does.  And there are others.  I had a client who inquired about it.  Others have, too. 
I am not the only condemned prisoner who wants the right to donate his organs. I have discussed this issue with almost every one of the 35 men on Oregon’s death row, and nearly half of them expressed a wish to have the option of donating should their appeals run out.
So what's the problem?  There's no law that prohibits organ donations from the condemned.  Why aren't we letting them (and we're not).
Oh, there are concerns about prisoners whose organs are already damaged.
[O]rgans of prisoners may be tainted by infections, H.I.V. or hepatitis. Though the prison population does have a higher prevalence of such diseases than do non-prisoners, thorough testing can easily determine whether a prisoner’s organs are healthy. These tests would be more reliable than many given to, say, a victim of a car crash who had signed up to be a donor; in the rush to transplant organs after an accident, there is less time for a full risk analysis.
And anyone killed with the three-drug sequence that nearly every state uses (the feds, too), well, that series of drugs damages the organs. But that's an argument for changing (if only for some inmates) the killing mechanism, not for refusing donations.
And there's an argument about coercion.  Certainly, there's something worrisome about harvesting organs from those we seek to kill.  Extra motive for executions and all that.
And there were those horror films where, say, the hands of an executed killer are grafted onto the arms of an innocent man (or there's a heart transplant or a transfusion or whatever) and it turns out that the killer's whathaveyou turns the innocent person into an unwitting killer.
So we rebel at the thought.  And yet.
Longo, again.
If I donated all of my organs today, I could clear nearly 1 percent of my state’s organ waiting list. I am 37 years old and healthy; throwing my organs away after I am executed is nothing but a waste.
And yet the prison authority’s response to my latest appeal to donate was this: “The interests of the public and condemned inmates are best served by denying the petition.”
Build in a safeguard or two.  Protect everyone.  It's not that hard.  So?  Why not.
OK, let me offer a thought here about what's really going on.
I've talked about this before.  (Here, for instance.)  The people we kill are supposed to be monsters.  Evil incarnate.  This is not my original insight.  Consider this paragraph from a review in today's Times of David Livingstone Smith's new book, Less Than Human: Why We Demean, Enslave, and Exterminate Others.
Dehumanization — representing people to be lesser, non­human creatures, as when police officers label crimes against criminals as “N.H.I.” (“No Humans Involved”), or when Muammar el-Qaddafi calls his critics “stray dogs” — isn’t just shabby rhetoric. Dehumanization is a mind-set, as Smith writes, that “decommissions” our “moral inhibitions” about mistreating fellow human beings. Encased in law and custom, this psychological process has often licensed slavery, genocide and countless other cruelties.
The problem is that the condemned guy (or gal) must be a monster.  Oh, we've killed others, but they make us queasy, and we need to feel good about our collective murders.
But he who would somehow not just apologize, not just accept, but who would do something specifically decent - not for gain, but because it's the right thing to do - we really can't allow that.
See, rehabilitation, or something like it, screws the whole system up.
And so the case from the Supreme Court this past week.
The case is Pepper v. United States and the formal relevant issue is whether, when a federal court resentences a person for some reason, the court may consider evidence of rehabilitation since the original sentencing.  While the technical resolution involves the understanding of the current status of the federal sentencing guidelines, the underlying point - as even Clarence Thomas acknowledges in dissent - does not.  Here's a bit of Sotomayor's majority opinion (all citations silently omitted).
[E]vidence of postsentencing rehabilitation may be highly relevant to several of the factors that Congress has expressly instructed district courts to consider at sentencing. For example, evidence of postsen-tencing rehabilitation may plainly be relevant to “the history and characteristics of the defendant.” Such evidence may also be pertinent to “the need for thesentence imposed” to serve the general purposes of sentencing—in particular, to “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational training . . . or other correctional treatment in the most effective manner.” Postsentencing rehabilitation may also critically inform a sentencing judge’s overarching duty to “impose a sentence sufficient, but not greater than necessary” to comply with the sentencing purposes.
Pepper doesn't deal with capital cases or efforts to atone or just do something because it's right.  And it has no bearing on whether someone like Longo should be allowed to donate organs.
But Pepper has everything to do with prisoners and our willingness (or not) to believe in simple human decency.  And the possibility of redemption.
Which is really the point here.
Because if Longo can donate his organs not because it will extend his life or get him a shot at clemency or win him points with a federal court or a parole board or something.  If Longo can donate his organs, that is, not for any selfish reason but simply because it's the right and decent and humane thing to do.  If Longo - and by extension others on death row - can be allowed to show that they aren't monsters.
If all of that (or any of it, frankly), then it's that much harder to support a system that depends on refusing to believe that those on the row are - or can be - other than monsters.  And that's what's really going on.
In the last act of King Lear (what, you thought I'd forgotten where this began?), Edmund, the evil son of the Duke of Gloucester, has been mortally wounded.  He is dying.  He knows it.
I pant for life: some good I mean to do,
Despite of mine own nature.
Sister Helen Prejean says that none of us is as bad as the worst thing we've done.  For Edmund do some good is not "despite" his true nature; it's an indication that his nature is far more complex, more nuanced, than what he has done before. 
We kill the monster of our imagining.  Longo's request asks us to take a more nuanced look.
But recognizing nuance will bring down the system.

1 comment:

  1. If Longo - and by extension others on death row - can be allowed to show that they aren't monsters.

    A rather simplistic view with a nicely crafted blind spot. Look, Longo is not a nice person. I don't want to live next door to him, and I daresay you don't want to either. If Longo agrees to donate his usable organs to a worthwhile cause and subsequently wake up on the wrong side of the lawn (by reasonable standards, anyway) I say - let him. At the same time the government and the commercial media should also deny Longo any media coverage of his self-serving action. I believe that it's likely that Longo wants control; it's all he has left. If Longo can gain some good publicity out of a stunt like this, Longo gains gratification. I'd deny him that.

    So. The condemned has a choice: Death by firing squad or death by, what - ether? Morphine? Surgical removal of vital organs?

    Then there's always the possibility that something will go wrong... some people remain alert but paralyzed. How will you deal with the possibility of this happening? Mind you, the victim's family might not mind, and the patrons down at Joe's Bar & Grill may have a different philosophical attitude towards this than the average anti-death penalty lawyer, but still and all I think you should plan ahead.

    Just a few thoughts.