ZACHARY SHEMTOB AND DAVID LATZachary Shemtob, formerly editor in.docx

ZACHARY SHEMTOB AND DAVID LAT
Zachary Shemtob, formerly editor in chief of the Georgetown
Law Review, is a clerk in the US District Court for the Southern
District of New York. David Lat is a former federal prosecutor.
Their essay originally appeared in the New York Times in 2011.
Executions Should Be Televised
Earlier this month, Georgia conducted its third execution this
year. This would have passed relatively unnoticed if not for a
controversy surrounding its videotaping. Lawyers for the
condemned inmate, Andrew Grant DeYoung, had persuaded a
judge to allow the recording of his last moments as part of an
effort to obtain evidence on whether lethal injection caused
unnecessary suffering.
Though he argued for videotaping, one of Mr. DeYoung’s
defense lawyers, Brian Kammer, spoke out against releasing the
footage to the public. “It’s a horrible thing that Andrew
DeYoung had to go through,” Mr. Kammer said, “and it’s not
for the public to see that.”
We respectfully disagree. Executions in the United States ought
to be made public.
Right now, executions are generally open only to the press and
a few select witnesses. For the rest of us, the vague contours are
provided in the morning paper. Yet a functioning democracy
demands maximum accountability and transparency. As long as
executions remain behind closed doors, those are impossible.
The people should have the right to see what is being done in
their name and with their tax dollars.
This is particularly relevant given the current debate on whether
specific methods of lethal injection constitute cruel and unusual

punishment and therefore violate the Constitution.
There is a dramatic difference between reading or hearing of
such an event and observing it through image and sound. (This
is obvious to those who saw the footage of Saddam Hussein’s
hanging in 2006 or the death of Neda Agha-Soltan during the
protests in Iran in 2009.) We are not calling for opening
executions completely to the public — conducting them before a
live crowd — but rather for broadcasting them live or recording
them for future release, on the web or TV.
When another Georgia inmate, Roy Blankenship, was executed
in June, the prisoner jerked his head, grimaced, gasped, and
lurched, according to a medical expert’s affidavit. The Atlanta
Journal-Constitution reported that Mr. DeYoung, executed in
the same manner, “showed no violent signs in death.” Voters
should not have to rely on media accounts to understand what
takes place when a man is put to death.
Cameras record legislative sessions and presidential debates,
and courtrooms are allowing greater television access. When he
was an Illinois state senator, President Obama successfully
pressed for the videotaping of homicide interrogations and
confessions. The most serious penalty of all surely demands
equal if not greater scrutiny.
Opponents of our proposal offer many objections. State lawyers
argued that making Mr. DeYoung’s execution public raised
safety concerns. While rioting and pickpocketing occasionally
marred executions in the public square in the eighteenth and
nineteenth centuries, modern security and technology obviate
this concern. Little would change in the death chamber; the
faces of witnesses and executioners could be edited out, for
privacy reasons, before a video was released.
Of greater concern is the possibility that broadcasting

executions could have a numbing effect. Douglas A. Berman, a
law professor, fears that people might come to equate human
executions with putting pets to sleep. Yet this seems overstated.
While public indifference might result over time, the initial
broadcasts would undoubtedly get attention and stir debate.
Still others say that broadcasting an execution would offer an
unbalanced picture — making the condemned seem helpless and
sympathetic, while keeping the victims of the crime out of the
picture. But this is beside the point: the defendant is being
executed precisely because a jury found that his crimes were so
heinous that he deserved to die.
Ultimately the main opposition to our idea seems to flow from
an unthinking disgust — a sense that public executions are
archaic, noxious, even barbarous. Albert Camus related in his
essay “Reflections on the Guillotine” that viewing executions
turned him against capital punishment. The legal scholar John
D. Bessler suggests that public executions might have the same
effect on the public today; Sister Helen Prejean, the death
penalty abolitionist, has urged just such a strategy.
That is not our view. We leave open the possibility that making
executions public could strengthen support for them; undecided
viewers might find them less disturbing than anticipated.
Like many of our fellow citizens, we are deeply conflicted
about the death penalty and how it has been administered. Our
focus is on accountability and openness. As Justice John Paul
Stevens wrote in Baze v. Rees, a 2008 case involving a
challenge to lethal injection, capital punishment is too often
“the product of habit and inattention rather than an acceptable
deliberative process that weighs the costs and risks of
administering that penalty against its identifiable benefits.”
A democracy demands a citizenry as informed as possible about

the costs and benefits of society’s ultimate punishment.
The Caging of America
How did we get here? How is it that our civilization, which
rejects hanging and flogging and disemboweling, came to
believe that caging vast numbers of people for decades is an
acceptably humane sanction? There’s a fairly large recent
scholarly literature on the history and sociology of crime and
punishment, and it tends to trace the American zeal for
punishment back to the nineteenth century, apportioning blame
in two directions. There’s an essentially Northern explanation,
focusing on the inheritance of the notorious Eastern State
Penitentiary, in Philadelphia, and its “reformist” tradition; and a
Southern explanation, which sees the prison system as
essentially a slave plantation continued by other means. Robert
Perkinson, the author of the Southern revisionist tract “Texas
Tough: The Rise of America’s Prison Empire,” traces two
ancestral lines, “from the North, the birthplace of rehabilitative
penology, to the South, the fountainhead of subjugationist
discipline.” In other words, there’s the scientific taste for
reducing men to numbers and the slave owners’ urge to reduce
blacks to brutes.
William J. Stuntz, a professor at Harvard Law School who died
shortly before his masterwork, “The Collapse of American
Criminal Justice,” was published, last fall, is the most forceful
advocate for the view that the scandal of our prisons derives
from the Enlightenment-era, “procedural” nature of American
justice. He runs through the immediate causes of the
incarceration epidemic: the growth of post-Rockefeller drug
laws, which punished minor drug offenses with major prison

time; “zero tolerance” policing, which added to the group;
mandatory-sentencing laws, which prevented judges from
exercising judgment. But his search for the ultimate cause leads
deeper, all the way to the Bill of Rights. In a society where
Constitution worship is still a requisite on right and left alike,
Stuntz startlingly suggests that the Bill of Rights is a terrible
document with which to start a justice system — much inferior
to the exactly contemporary French Declaration of the Rights of
Man, which Jefferson, he points out, may have helped shape
while his protégé Madison was writing ours.
The trouble with the Bill of Rights, he argues, is that it
emphasizes process and procedure rather than principles. The
Declaration of the Rights of Man says, Be just! The Bill of
Rights says, Be fair!1 Instead of announcing general principles
— no one should be accused of something that wasn’t a crime
when he did it; cruel punishments are always wrong; the goal of
justice is, above all, that justice be done — it talks
procedurally. You can’t search someone without a reason; you
can’t accuse him without allowing him to see the evidence; and
so on. This emphasis, Stuntz thinks, has led to the current mess,
where accused criminals get laboriously articulated protection
against procedural errors and no protection at all against
outrageous and obvious violations of simple justice. You can
get off if the cops looked in the wrong car with the wrong
warrant when they found your joint, but you have no recourse if
owning the joint gets you locked up for life. You may be spared
the death penalty if you can show a problem with your
appointed defender, but it is much harder if there is merely
enormous accumulated evidence that you weren’t guilty in the
first place and the jury got it wrong. Even clauses that
Americans are taught to revere are, Stuntz maintains, unworthy
of reverence: the ban on “cruel and unusual punishment” was
designed to protect cruel punishments — flogging and branding
— that were not at that time unusual.

The obsession with due process and the cult of brutal prisons,
the argument goes, share an essential impersonality. The more
professionalized and procedural a system is, the more insulated
we become from its real effects on real people. That’s why
America is famous both for its process-driven judicial system
(“The bastard got off on a technicality,” the cop-show detective
fumes) and for the harshness and inhumanity of its prisons.
Though all industrialized societies started sending more people
to prison and fewer to the gallows in the eighteenth century, it
was in Enlightenment-inspired America that the taste for long-
term, profoundly depersonalized punishment became most
aggravated. The inhumanity of American prisons was as much a
theme for Dickens, visiting America in 1842, as the cynicism of
American lawyers. His shock when he saw the Eastern State
Penitentiary, in Philadelphia — a “model” prison, at the time
the most expensive public building ever constructed in the
country, where every prisoner was kept in silent, separate
confinement — still resonates:
I believe that very few men are capable of estimating the
immense amount of torture and agony which this dreadful
punishment, prolonged for years, inflicts upon the sufferers…. I
hold this slow and daily tampering with the mysteries of the
brain, to be immeasurably worse than any torture of the body:
and because its ghastly signs and tokens are not so palpable to
the eye and sense of touch as scars upon the flesh; because its
wounds are not upon the surface, and it extorts few cries that
human ears can hear; therefore I the more denounce it, as a
secret punishment which slumbering humanity is not roused up
to stay.
Not roused up to stay — that was the point. Once the procedure
ends, the penalty begins, and, as long as the cruelty is routine,
our civil responsibility toward the punished is over. We lock
men up and forget about their existence. For Dickens, even the
corrupt but communal debtors’ prisons of old London were

better than this. “Don’t take it personally!” — that remains the
slogan above the gate to the American prison Inferno. Nor is
this merely a historian’s vision. Conrad Black, at the high end,
has a scary and persuasive picture of how his counsel, the
judge, and the prosecutors all merrily congratulated each other
on their combined professional excellence just before sending
him off to the hoosegow for several years. If a millionaire feels
that way, imagine how the ordinary culprit must feel.
In place of abstraction, Stuntz argues for the saving grace of
humane discretion. Basically, he thinks, we should go into court
with an understanding of what a crime is and what justice is
like, and then let common sense and compassion and specific
circumstance take over. There’s a lovely scene in “The Castle,”
the Australian movie about a family fighting eminent-domain
eviction, where its hapless lawyer, asked in court to point to the
specific part of the Australian constitution that the eviction
violates, says desperately, “It’s … just the vibe of the thing.”
For Stuntz, justice ought to be just the vibe of the thing — not
one procedural error caught or one fact worked around. The
criminal law should once again be more like the common law,
with judges and juries not merely finding fact but making law
on the basis of universal principles of fairness, circumstance,
and seriousness, and crafting penalties to the exigencies of the
crime.
The other argument — the Southern argument — is that this
story puts too bright a face on the truth. The reality of American
prisons, this argument runs, has nothing to do with the knots of
procedural justice or the perversions of Enlightenment-era
ideals. Prisons today operate less in the rehabilitative mode of
the Northern reformers “than in a retributive mode that has long
been practiced and promoted in the South,” Perkinson, an
American Studies professor, writes. “American prisons trace
their lineage not only back to Pennsylvania penitentiaries but to
Texas slave plantations.” White supremacy is the real principle,

this thesis holds, and racial domination the real end. In response
to the apparent triumphs of the sixties, mass imprisonment
became a way of reimposing Jim Crow. Blacks are now
incarcerated seven times as often as whites. “The system of
mass incarceration works to trap African Americans in a virtual
(and literal) cage,” the legal scholar Michelle Alexander writes.
Young black men pass quickly from a period of police
harassment into a period of “formal control” (i.e., actual
imprisonment) and then are doomed for life to a system of
“invisible control.” Prevented from voting, legally
discriminated against for the rest of their lives, most will cycle
back through the prison system. The system, in this view, is not
really broken; it is doing what it was designed to do.
Alexander’s grim conclusion: “If mass incarceration is
considered as a system of social control — specifically, racial
control — then the system is a fantastic success.”
Northern impersonality and Southern revenge converge on a
common American theme: a growing number of American
prisons are now contracted out as for-profit businesses to for-
profit companies. The companies are paid by the state, and their
profit depends on spending as little as possible on the prisoners
and the prisons. It’s hard to imagine any greater disconnect
between public good and private profit: the interest of private
prisons lies not in the obvious social good of having the
minimum necessary number of inmates but in having as many as
possible, housed as cheaply as possible. No more chilling
document exists in recent American life than the 2005 annual
report of the biggest of these firms, the Corrections Corporation
of America. Here the company (which spends millions lobbying
legislators) is obliged to caution its investors about the risk that
somehow, somewhere, someone might turn off the spigot of
convicted men:
Our growth is generally dependent upon our ability to obtain
new contracts to develop and manage new correctional and

detention facilities…. The demand for our facilities and services
could be adversely affected by the relaxation of enforcement
efforts, leniency in conviction and sentencing practices or
through the decriminalization of certain activities that are
currently proscribed by our criminal laws. For instance, any
changes with respect to drugs and controlled substances or
illegal immigration could affect the number of persons arrested,
convicted, and sentenced, thereby potentially reducing demand
for correctional facilities to house them.
Brecht could hardly have imagined such a document: a capitalist
enterprise that feeds on the misery of man trying as hard as it
can to be sure that nothing is done to decrease that misery.
Yet a spectre haunts all these accounts, North and South,
whether process gone mad or penal colony writ large. It is that
the epidemic of imprisonment seems to track the dramatic
decline in crime over the same period. The more bad guys there
are in prison, it appears, the less crime there has been in the
streets. The real background to the prison boom, which shows
up only sporadically in the prison literature, is the crime wave
that preceded and overlapped it.
For those too young to recall the big-city crime wave of the
sixties and seventies, it may seem like mere bogeyman history.
For those whose entire childhood and adolescence were set
against it, it is the crucial trauma in recent American life and
explains much else that happened in the same period. It was the
condition of the Upper West Side of Manhattan under liberal
rule, far more than what had happened to Eastern Europe under
socialism, that made neo-con polemics look persuasive. There
really was, as Stuntz himself says, a liberal consensus on crime
(“Wherever the line is between a merciful justice system and
one that abandons all serious effort at crime control, the nation
had crossed it”), and it really did have bad effects.

Yet if, in 1980, someone had predicted that by 2012 New York
City would have a crime rate so low that violent crime would
have largely disappeared as a subject of conversation, he would
have seemed not so much hopeful as crazy. Thirty years ago,
crime was supposed to be a permanent feature of the city,
produced by an alienated underclass of super-predators; now it
isn’t. Something good happened to change it, and you might
have supposed that the change would be an opportunity for
celebration and optimism. Instead, we mostly content ourselves
with grudging and sardonic references to the silly side of
gentrification, along with a few all-purpose explanations, like
broken-window policing. This is a general human truth: things
that work interest us less than things that don’t.
So what is the relation between mass incarceration and the
decrease in crime? Certainly, in the 1970s and 1980s, many
experts became persuaded that there was no way to make bad
people better; all you could do was warehouse them, for longer
or shorter periods. The best research seemed to show,
depressingly, that nothing works — that rehabilitation was a
ruse. Then, in 1983, inmates at the maximum-security federal
prison in Marion, Illinois, murdered two guards. Inmates had
been (very occasionally) killing guards for a long time, but the
timing of the murders, and the fact that they took place in a
climate already prepared to believe that even ordinary humanity
was wasted on the criminal classes, meant that the entire prison
was put on permanent lockdown. A century and a half after
absolute solitary first appeared in American prisons, it was
reintroduced. Those terrible numbers began to grow.
And then, a decade later, crime started falling: across the
country by a standard measure of about forty per cent; in New
York City by as much as eighty per cent. By 2010, the crime
rate in New York had seen its greatest decline since the Second
World War; in 2002, there were fewer murders in Manhattan
than there had been in any year since 1900. In social science, a

cause sought is usually a muddle found; in life as we experience
it, a crisis resolved is causality established. If a pill cures a
headache, we do not ask too often if the headache might have
gone away by itself.
All this ought to make the publication of Franklin E. Zimring’s
new book, “The City That Became Safe,” a very big event.
Zimring, a criminologist at Berkeley Law, has spent years
crunching the numbers of what happened in New York in the
context of what happened in the rest of America. One thing he
teaches us is how little we know. The forty per cent drop across
the continent — indeed, there was a decline throughout the
Western world — took place for reasons that are as mysterious
in suburban Ottawa as they are in the South Bronx. Zimring
shows that the usual explanations — including demographic
shifts — simply can’t account for what must be accounted for.
This makes the international decline look slightly eerie:
blackbirds drop from the sky, plagues slacken and end, and
there seems no absolute reason that societies leap from one state
to another over time. Trends and fashions and fads and pure
contingencies happen in other parts of our social existence; it
may be that there are fashions and cycles in criminal behavior,
too, for reasons that are just as arbitrary.
But the additional forty per cent drop in crime that seems
peculiar to New York finally succumbs to Zimring’s analysis.
The change didn’t come from resolving the deep pathologies
that the right fixated on — from jailing super-predators, driving
down the number of unwed mothers, altering welfare culture.
Nor were there cures for the underlying causes pointed to by the
left: injustice, discrimination, poverty. Nor were there any
“Presto!” effects arising from secret patterns of increased
abortions or the like. The city didn’t get much richer; it didn’t
get much poorer. There was no significant change in the ethnic
makeup or the average wealth or educational levels of New
Yorkers as violent crime more or less vanished. “Broken

windows” or “turnstile jumping” policing, that is, cracking
down on small visible offenses in order to create an atmosphere
that refused to license crime, seems to have had a negligible
effect; there was, Zimring writes, a great difference between the
slogans and the substance of the time. (Arrests for “visible”
nonviolent crime — e.g., street prostitution and public gambling
— mostly went down through the period.)
Instead, small acts of social engineering, designed simply to
stop crimes from happening, helped stop crime. In the nineties,
the N.Y.P.D. began to control crime not by fighting minor
crimes in safe places but by putting lots of cops in places where
lots of crimes happened — “hot-spot policing.” The cops also
began an aggressive, controversial program of “stop and frisk”
— “designed to catch the sharks, not the dolphins,” as Jack
Maple, one of its originators, described it — that involved
what’s called pejoratively “profiling.” This was not so much
racial, since in any given neighborhood all the suspects were
likely to be of the same race or color, as social, involving the
thousand small clues that policemen recognized already.
Minority communities, Zimring emphasizes, paid a
disproportionate price in kids stopped and frisked, and detained,
but they also earned a disproportionate gain in crime reduced.
“The poor pay more and get more” is Zimring’s way of putting
it. He believes that a “light” program of stop-and-frisk could be
less alienating and just as effective, and that by bringing down
urban crime stop-and-frisk had the net effect of greatly reducing
the number of poor minority kids in prison for long stretches.
Zimring insists, plausibly, that he is offering a radical and
optimistic rewriting of theories of what crime is and where
criminals are, not least because it disconnects crime and
minorities. “In 1961, twenty six percent of New York City’s
population was minority African American or Hispanic. Now,
half of New York’s population is — and what that does in an
enormously hopeful way is to destroy the rude assumptions of

supply side criminology,” he says. By “supply side
criminology,” he means the conservative theory of crime that
claimed that social circumstances produced a certain net amount
of crime waiting to be expressed; if you stopped it here, it broke
out there. The only way to stop crime was to lock up all the
potential criminals. In truth, criminal activity seems like most
other human choices — a question of contingent occasions and
opportunity. Crime is not the consequence of a set number of
criminals; criminals are the consequence of a set number of
opportunities to commit crimes. Close down the open drug
market in Washington Square, and it does not automatically
migrate to Tompkins Square Park. It just stops, or the dealers go
indoors, where dealing goes on but violent crime does not.
And, in a virtuous cycle, the decreased prevalence of crime
fuels a decrease in the prevalence of crime. When your friends
are no longer doing street robberies, you’re less likely to do
them. Zimring said, in a recent interview, “Remember, nobody
ever made a living mugging. There’s no minimum wage in
violent crime.” In a sense, he argues, it’s recreational, part of a
life style: “Crime is a routine behavior; it’s a thing people do
when they get used to doing it.” And therein lies its essential
fragility. Crime ends as a result of “cyclical forces operating on
situational and contingent things rather than from finding
deeply motivated essential linkages.” Conservatives don’t like
this view because it shows that being tough doesn’t help;
liberals don’t like it because apparently being nice doesn’t help,
either. Curbing crime does not depend on reversing social
pathologies or alleviating social grievances; it depends on
erecting small, annoying barriers to entry.
One fact stands out. While the rest of the country, over the same
twenty-year period, saw the growth in incarceration that led to
our current astonishing numbers, New York, despite the
Rockefeller drug laws, saw a marked decrease in its number of
inmates. “New York City, in the midst of a dramatic reduction
in crime, is locking up a much smaller number of people, and

particularly of young people, than it was at the height of the
crime wave,” Zimring observes. Whatever happened to make
street crime fall, it had nothing to do with putting more men in
prison. The logic is self-evident if we just transfer it to the
realm of white-collar crime: we easily accept that there is no net
sum of white-collar crime waiting to happen, no inscrutable
generation of super-predators produced by Dewar’s-guzzling
dads and scaly M.B.A. profs; if you stop an embezzlement
scheme here on Third Avenue, another doesn’t naturally start in
the next office building. White-collar crime happens through an
intersection of pathology and opportunity; getting the S.E.C.
busy ending the opportunity is a good way to limit the range of
the pathology.
Social trends deeper and less visible to us may appear as future
historians analyze what went on. Something other than policing
may explain things — just as the coming of cheap credit cards
and state lotteries probably did as much to weaken the Mafia’s
Five Families in New York, who had depended on loan sharking
and numbers running, as the F.B.I. could. It is at least possible,
for instance, that the coming of the mobile phone helped drive
drug dealing indoors, in ways that helped drive down crime. It
may be that the real value of hot spot and stop-and-frisk was
that it provided a single game plan that the police believed in;
as military history reveals, a bad plan is often better than no
plan, especially if the people on the other side think it’s a good
plan. But one thing is sure: social epidemics, of crime or of
punishment, can be cured more quickly than we might hope with
simpler and more superficial mechanisms than we imagine.
Throwing a Band-Aid over a bad wound is actually a decent
strategy, if the Band-Aid helps the wound to heal itself.
Which leads, further, to one piece of radical common sense:
since prison plays at best a small role in stopping even violent
crime, very few people, rich or poor, should be in prison for a
nonviolent crime. Neither the streets nor the society is made
safer by having marijuana users or peddlers locked up, let alone

with the horrific sentences now dispensed so easily. For that
matter, no social good is served by having the embezzler or the
Ponzi schemer locked in a cage for the rest of his life, rather
than having him bankrupt and doing community service in the
South Bronx for the next decade or two. Would we actually
have more fraud and looting of shareholder value if the
perpetrators knew that they would lose their bank accounts and
their reputation, and have to do community service seven days a
week for five years? It seems likely that anyone for whom those
sanctions aren’t sufficient is someone for whom no sanctions
are ever going to be sufficient. Zimring’s research shows
clearly that if crime drops on the street, criminals coming out of
prison stop committing crimes. What matters is the incidence of
crime in the world, and the continuity of a culture of crime, not
some “lesson learned” in prison.
At the same time, the ugly side of stop-and-frisk can be
alleviated. To catch sharks and not dolphins, Zimring’s work
suggests, we need to adjust the size of the holes in the nets —
to make crimes that are the occasion for stop-and-
frisks real crimes, not crimes like marijuana possession. When
the New York City police stopped and frisked kids, the main
goal was not to jail them for having pot but to get their
fingerprints, so that they could be identified if they committed a
more serious crime. But all over America the opposite happens:
marijuana possession becomes the serious crime. The cost is so
enormous, though, in lives ruined and money spent, that the
obvious thing to do is not to enforce the law less but to change
it now. Dr. Johnson said once that manners make law, and that
when manners alter, the law must, too. It’s obvious that
marijuana is now an almost universally accepted drug in
America: it is not only used casually (which has been true for
decades) but also talked about casually on television and in the
movies (which has not). One need only watch any stoner movie
to see that the perceived risks of smoking dope are not that
you’ll get arrested but that you’ll get in trouble with a rival frat
or look like an idiot to women. The decriminalization of

marijuana would help end the epidemic of imprisonment.
The rate of incarceration in most other rich, free countries,
whatever the differences in their histories, is remarkably steady.
In countries with Napoleonic justice or common law or some
mixture of the two, in countries with adversarial systems and in
those with magisterial ones, whether the country once had
brutal plantation-style penal colonies, as France did, or was
once itself a brutal plantation-style penal colony, like Australia,
the natural rate of incarceration seems to hover right around a
hundred men per hundred thousand people. (That doesn’t mean
it doesn’t get lower in rich, homogeneous countries — just that
it never gets much higher in countries otherwise like our own.)
It seems that one man in every thousand once in a while does a
truly bad thing. All other things being equal, the point of a
justice system should be to identify that thousandth guy, find a
way to keep him from harming other people, and give everyone
else a break.
Epidemics seldom end with miracle cures. Most of the time in
the history of medicine, the best way to end disease was to build
a better sewer and get people to wash their hands. “Merely
chipping away at the problem around the edges” is usually the
very best thing to do with a problem; keep chipping away
patiently and, eventually, you get to its heart. To read the
literature on crime before it dropped is to see the same kind of
dystopian despair we find in the new literature of punishment:
we’d have to end poverty, or eradicate the ghettos, or declare
war on the broken family, or the like, in order to end the crime
wave. The truth is, a series of small actions and events ended up
eliminating a problem that seemed to hang over everything.
There was no miracle cure, just the intercession of a thousand
smaller sanities. Ending sentencing for drug misdemeanors,
decriminalizing marijuana, leaving judges free to use common
sense (and, where possible, getting judges who are judges rather
than politicians) — many small acts are possible that will help
end the epidemic of imprisonment as they helped end the plague
of crime.

“Oh, I have taken too little care of this!” King Lear cries out on
the heath in his moment of vision. “Take physic, pomp; expose
thyself to feel what wretches feel.” “This” changes; in
Shakespeare’s time, it was flat-out peasant poverty that starved
some and drove others as mad as poor Tom. In Dickens’s and
Hugo’s time, it was the industrial revolution that drove kids to
mines. But every society has a poor storm that wretches suffer
in, and the attitude is always the same: either that the wretches,
already dehumanized by their suffering, deserve no pity or that
the oppressed, overwhelmed by injustice, will have to wait for a
better world. At every moment, the injustice seems inseparable
from the community’s life, and in every case the arguments for
keeping the system in place were that you would have to
revolutionize the entire social order to change it — which then
became the argument for revolutionizing the entire social order.
In every case, humanity and common sense made the insoluble
problem just get up and go away. Prisons are our this. We need
take more care.

Death and Justice
Following a stint in the U.S. House of Representatives,
controversial and outspoken Edward I. Koch(1924-) served
as mayor of New York City from 1977 to 1989. He was
elected after campaigning on ananti-crime and anti-
spending platform. Koch, who now presides over a
popular TV courtroom show, haswritten two
autobiographical books, Mayor (1984) and Politics (1985).
He also coauthored the book HisEminence andHizzoner
(1989) with the equally controversial John Cardinal
O’Connor. The followingessay was published in the New
Republic in 1985.Last December [1984] a man named Robert
Lee Willie, who hadbeen convicted of raping and murdering an
18-year-old woman, wasexecuted in the Louisiana state prison.
In a statement issued severalminutes before his death, Mr.
Willie said: “Killing people is wrong...Itmakes no difference
whether it’s citizens, countries, or governments.Killing is
wrong.” Two weeks later in South Carolina, an admittedkiller
named Joseph Carl Shaw was put to death for murdering
twoteenagers. In an appeal to the governor for clemency, Mr.
Shawwrote: “Killing is wrong when I did it. Killing is wrong
when you do it. I hope you have the courage and moralstrength

to stop the killing.”It is a curiosity of modern life that we find
ourselves being lectured on morality by cold-blooded
killers.Mr. Willie previously had been convicted of aggravated
rape, aggravated kidnapping, and the murders of aLouisiana
deputy and a man from Missouri. Mr. Shaw committed another
murder a week before the two forwhich he was executed, and
admitted mutilating the body of the 14-year-old girl he killed. I
can’t helpwondering what prompted these murderers to speak
out against killing as they entered the death-house door.Did
their newfound reverence for life stem from the realization that
they were about to lose their own?Life is indeed precious, and I
believe the death penalty helps to affirm this fact. Had the
death penaltybeen a real possibility in the minds of these
murderers, they might well have stayed their hand. They might
haveshown moral awareness before their victims died, and not
after. Consider the tragic death of Rosa Velez, whohappened to
be home when a man named Luis Vera burglarized her
apartment in Brooklyn. “Yeah, I showher,” Vera admitted.
“She knew me, and I knew I wouldn’t go to the chair.”During
my 22 years in public service, I have heard the pros and cons of
capital punishment expressedwith special intensity. As a
district leader, councilman, congressman, and mayor, I have
represented constituenciesgenerally thought of as liberal.
Because I support the death penalty for heinous crimes of
murder, I havesometimes been the subject of emotional and
outraged attacks by voters who find my position reprehensible
orworse. I have listened to their ideas. I have weighed their
objections carefully. I still support the death penalty.The
reasons I maintained my position can be best understood by
examining the arguments most frequentlyheard in opposition.1.
The death penalty is “barbaric.” Sometimes opponents of
capital punishment horrify us withtales of lingering death on the
gallows, of faulty electric chairs, or of agony in the gas
chamber. Partly inresponse to such protests, several states such
as North Carolina and Texas switched to execution by
lethalinjection. The condemned person is put to death

painlessly, without ropes, voltage, bullets, or gas. Did
thisanswer the objections of death penalty opponents? Of
course not. On June 22, 1984, the New York Timespublished an
editorial that sarcastically attacked the new “hygienic” method
of death by injection, and statedthat “execution can never be
made humane through science.” So it’s not the method that
really troublesopponents. It’s the death itself they consider
barbaric.Admittedly, capital punishment is not a pleasant topic.
However, one does not have to like the deathpenalty in order to
support it any more than one must like radical surgery,
radiation, or chemotherapy in orderto find necessary these
attempts at curing cancer. Ultimately we may learn how to cure
cancer with a simplepill. Unfortunately, that day has not yet
arrived. Today we are faced with the choice of letting the
cancerDeath and Justiceby Edward I. Koch12 4356
spread or trying to cure it with the methods available, methods
that one day will almost certainly be consideredbarbaric. But to
give up and do nothing would be far more barbaric and would
certainly delay the discoveryof an eventual cure. The analogy
between cancer and murder is imperfect, because murder is not
the “disease”we are trying to cure. The disease is injustice. We
may not like the death penalty, but it must be available topunish
crimes of cold-blooded murder, cases in which any other form
of punishment would be inadequate and,therefore, unjust. If we
create a society in which injustice is not tolerated, incidents of
murder – the mostflagrant form of injustice – will diminish.2.
No other major democracy uses the death penalty. No other
major democracy – in fact, fewother countries of any
description – are plagued by a murder rate such as that in the
United States. Fewer andfewer Americans can remember the
days when unlocked doors were the norm and murder was a rare
andterrible offense. In American the murder rate climbed 122
percent between 1963 and 1980. During that sameperiod, the
murder rate in New York City increased by almost 400 percent,
and the statistics are even worsein many other cities. A study at
M.I.T. showed that based on 1970 homicide rates a person who

lived in a largeAmerican city ran a greater risk of being
murdered than an American soldier in World War II ran of
being killedin combat. It is not surprising that the laws of each
country differ according to differing conditions and traditions.If
other countries had our murder problem, the cry for capital
punishment would be just as loud as it is here.And I daresay
that any other major democracy where 75 percent of the people
supported the death penaltywould soon enact it into law.3. An
innocent person might be executed by mistake. Consider the
work of Adam Bedau, oneof the most implacable foes of capital
punishment in this country. According to Mr. Bedau, it is
“falsesentimentality to argue that the death penalty should be
abolished because of the abstract possibility that aninnocent
person might be executed.” He cites a study of the 7,000
executions in this country from 1893 to1971, and concludes that
the record fails to show that such cases occur. The main point,
however, is this. Ifgovernment functioned only when the
possibility of error didn’t exist, government wouldn’t function
at all.Human life deserves special protection, and one of the
best ways to guarantee that protection is to assure thatconvicted
murderers do not kill again. Only the death penalty can
accomplish this end. In a recent case inNew Jersey, a man
named Richard Biegenwald was freed from prison after serving
18 years for murder; sincehis release he has been convicted of
committing four murders. A prisoner named Lemuel Smith,
while servingfour life sentences for murder (plus two life
sentences for kidnapping and robbery) in New York’s
GreenHaven Prison, lured a woman corrections officer into the
chaplain’s office and strangled her. He then mutilatedand
dismembered her body. An additional life sentence for Smith is
meaningless. Because New York has nodeath penalty statue,
Smith has effectively been given a license to kill.But the
problem of multiple murder is not confined to the nation’s
penitentiaries. In 1981, 91 policeofficers were killed in the line
of duty in this country. Seven percent of those arrested in the
cases that havebeen solved had a previous arrest for murder. In

New York City in 1976 and 1977, 85 persons arrested
forhomicide had a previous arrest for murder. Six of these
individuals had two previous arrests for murder, andone had
four previous murder arrests. During those two years the New
York police were arresting for murderpersons with a previous
arrest for murder on the average of one every 8.5 days. This is
not surprising when welearn that in 1975, for example, the
median time served in Massachusetts for homicide was less than
two anda half years. In 1976 a study sponsored by the
Twentieth Century Fund found that the average time served
inthe United States for first degree murder is ten years. The
median time served may be considerably lower.4. Capital
punishment cheapens the value of human life. On the contrary,
it can be easilydemonstrated that the death penalty strengthens
the value of human life. If the penalty for rape were
lowered,clearly it would signal a lessened regard for the
victims’ suffering, humiliation, and personal integrity. It
wouldcheapen their horrific experience, and expose them to an
increased danger of recurrence. When we lower thepenalty for
murder, it signals a lessened regard for the value of the victim’s
life. Some critics of capital punishment,78910
such as columnist Jimmy Breslin, have suggested that a life
sentence is actually a harsher penalty for murderthan death.
This is sophistic nonsense. A few killers may decide not to
appeal a death sentence, but theoverwhelming majority make
every effort to stay alive. It is by exacting the highest penalty
for the taking ofhuman life that we affirm the highest value of
human life.5. The death penalty is applied in a discriminatory
manner. This factor no longer seems to bethe problem it once
was. The appeals process for a condemned prisoner is lengthy
and painstaking. Everyeffort is made to see that the verdict and
sentence were fairly arrived at. However, assertions of
discriminationare not an argument for ending the death penalty
but for extending it. It is not justice to exclude everyone
fromthe penalty of the law if a few are found to be so favored.
Justice requires that the law be applied equally to all.6. Thou

shalt not kill. The Bible is our greatest source of moral
inspiration. Opponents of thedeath penalty frequently cite the
sixth of the Ten Commandments in an attempt to prove that
capital punishmentis divinely proscribed. In the original
Hebrew, however, the Sixth Commandment reads, “Thou Shalt
NotCommit Murder,” and the Torah specifies capital
punishment for a variety of offenses. The biblical viewpointhas
been upheld by philosophers throughout history. The greatest
thinkers of the nineteenth century – Kant,Locke, Hobbes,
Rousseau, Montesquieu, and Mill – agreed that natural law
properly authorizes the sovereignto take life in order to
vindicate justice. Only Jeremy Bentham was ambivalent.
Washington, Jefferson, andFranklin endorsed it. Abraham
Lincoln authorized executions for deserters in wartime. Alexis
de Tocqueville,who expressed profound respect for American
institutions, believed that the death penalty was indispensableto
the support of social order. The United States Constitution,
widely admired as one of the seminal achievementsin the
history of humanity, condemns cruel and inhuman punishment,
but does not condemn capital punishment.7. The death penalty
is state-sanctioned murder. This is the defense with which
Messrs. Willieand Shaw hoped to soften the resolve of those
who sentenced them to death. By saying in effect, “You’re
nobetter than I am,” the murderer seeks to bring his accusers
down to his own level. It is also a popular argumentamong
opponents of capital punishment, but a transparently false one.
Simply put, the state has rights that theprivate individual does
not. In a democracy, those rights are given to the state by the
electorate. The executionof a lawfully condemned killer is no
more an act of murder than is legal imprisonment an act of
kidnapping. Ifan individual forces a neighbor to pay him money
under threat of punishment, it’s called extortion. If the
statedoes it, it’s called taxation. Rights and responsibilities
surrendered by the individual are what give the state itspower to
govern. This contract is the foundation of civilization
itself.Everyone wants his or her rights, and will defend them

jealously. Not everyone, however, wantsresponsibilities,
especially the painful responsibilities that come with law
enforcement. Twenty-one years agoa woman named Kitty
Genovese was assaulted and murdered on a street in New York.
Dozens of neighborsheard her cries for help but did nothing to
assist her. They didn’t even call the police. In such a climate
thecriminal understandably grows bolder. In the presence of
moral cowardice, he lectures us on our supposedfailings and
tries to equate his crimes with our quest for justice.The death of
anyone – even a convicted killer – diminishes us all. But we
are diminished even more bya justice system that fails to
function. It is an illusion to let ourselves believe that doing
away with capitalpunishment removes the murderer’s deed from
our conscience. The rights of society are paramount. Whenwe
protect guilty lives, we give up innocent lives in exchange.
When opponents of capital punishment say tothe state: “I will
not let you kill in my name,” they are also saying to murderers:
“You can kill in your own nameas long as I have an excuse for
not getting involved.”It is hard to imagine anything worse than
being murdered while neighbors do nothing. But
somethingworse exists. When those same neighbors shrink back
from justly punishing the murderer, the victim diestwice.

The Death Penalty
lecturer and consultant on the death penalty, attorney
David Bruck (1949-) has represented numerousdeath row
clients. He has published articles in the Washington Post
and the New York Times and hasdiscussed capital
punishment on a variety of national television programs.
Writing in response to EdKoch’s argument in favor of the
death penalty, Bruck prepared the following piece, which
first appearedin the New Republic in 1985.Mayor Ed Koch
contends that the death penalty “affirms life.” By failing
toexecute murderers, he says, we “signal a lessened regard for
the value ofthe victim’s life.” Koch suggests that people who
oppose the death penaltyare like Kitty Genovese’s neighbors,
who heard her cries for help but didnothing while an attacker
stabbed her to death.This is the standard “moral” defense of
death as punishment: even ifexecutions don’t deter violent
crime any more effectively than imprisonment,they are still
required as the only means we have of doing justice in
responseto the worst of crimes.Until recently, this “moral”
argument had to be considered in the abstract, since no one was
being executed inthe United States. But the death penalty is
back now, aat least in the southern states, where every one of
themore than 30 executions carried out over the last two years
has taken place. Those of us who live in thosestates are getting
to see the difference between the death penalty in theory, and
what happens when youactually try to use it.South Carolina

resumed executing prisoners in January with the electrocution
of Joseph Carl Shaw.Shaw was condemned to death for helping
to murder two teenagers while he was serving as a military
policemanat Fort Jackson, South Carolina. His crime, propelled
by mental illness and PCP, was one of terrible brutality.It is
Shaw’s last words (“Killing was wrong when I did it. It is
wrong when you do it...”) that so outragedMayor Koch: he finds
it “a curiosity of modern life that we are being lectured on
morality by cold-bloodedkillers.” And so it is.But is was not
“modern life” that brought this curiosity into being. It was
capital punishment. Theelectric chair was J.C. Shaw’s
platform. (The mayor mistakenly writes that Shaw’s statement
came in the formof a plea to the governor for clemency: actually
Shaw made it only seconds before his death, as he
waited,shaved and strapped into the chair, for the switch to be
thrown.) It was the chair that provided Shaw withcelebrity and
an opportunity to lecture us on right and wrong. What made
this weird moral reversal evenworse is that J.C. Shaw faced his
own death with undeniable dignity and courage. And while
Shaw died, theTV crews recorded another “curiosity” of the
death penalty – the crowd gathered outside the death-house
tocheer on the executioner. Whoops of elation greeted the
announcement of Shaw’s death. Waiting at thepenitentiary
gates for the appearance of the hearse bearing Shaw’s remains,
one demonstrator started yelling,“Where’s the beef?”For those
who had to see the execution of J.C. Shaw, it wasn’t easy to
keep in mind that he purposeof the whole spectacle was to
affirm life. It will be harder still when Florida executes a cop-
killer named AlvinFord. Ford has lost his mind during his years
of death-row confinement, and now spends his days
trembling,rocking back and forth, and muttering unintelligible
prayers. This has led to litigation over whether Ford meetsa
centuries-old legal standard for mental competency. Since the
Middle Ages, the Anglo-American legalsystem has generally
prohibited the execution of anyone who is too mentally ill to
understand what is about tobe done to him and why. If Florida

wins its case, it will have earned the right to electrocute Ford in
his presentcondition. It is loses, he will not be executed until
the state has first nursed him back to some semblance ofmental
health.*_______________________* On June 26, 1986, the
Supreme Court prohibited the execution of convicted murderers
who are so insane they do not understand theywill be executed.
However, if Ford regains his sanity, Florida may execute
him.The DeathPenaltyby David Bruck123456
We can at least be thankful that this demoralizing spectacle
involves a prisoner who is actually guilty ofmurder. But this
may not always been so. The ordeal of Lenell Jeter – the young
black engineer who recentlyserved more than a year of a life
sentence for a Texas armed robbery that he didn’t commit –
should remind usthat the system is quite capable of making the
very worst sort of mistake. That Jeter was eventually cleared
isa fluke. If the robbery had occurred at 7 p.m. rather than 3
p.m., he’d have had no alibi, and would still be inprison today.
And if someone had been killed in that robbery, Jeter probably
would have been sentenced todeath. We’d have seen the usual
execution-day interviews with state officials and the victim’s
relatives, allcomplaining that Jeter’s appeals took too long.
And Jeter’s last words from the gurney would have taken
theirplace among the growing literature of death-house oration
that so irritates the mayor.Koch quotes Hugo Adam Bedau, a
prominent abolitionist, to the effect that the record fails to
establishthat innocent defendants have been executed in the
past. But this doesn’t mean, as Koch implies, that it
hasn’thappened. All Bedau was saying was that doubt
concerning executed prisoners’ guilt are almost never
resolved.Bedau is at work now on an effort to determine how
many wrongful death sentences may have been imposed:his list
of murder convictions since 1900 in which the state eventually
admitted error is some 400 cases long.Of course, very few of
these cases involved actual executions: the mistakes that Bedau
documents wereuncovered precisely because the prisoner was
alive and able to fight for his vindication. The cases

wheresomeone is executed are the very cases in which we’re
least likely to learn that we got the wrong man.I don’t claim
that executions of entirely innocent people will occur very
often. But they will occur. Andother sorts of mistakes already
have. Roosevelt Green was executed in Georgia two days
before J.C. Shaw.Green and an accomplice kidnapped a young
woman. Green swore that his companion shot her to death
afterGreen had left, and that he knew nothing about the murder.
Green’s claim was supported by a statement thathis accomplice
made to a witness after the crime. The jury never resolved
whether Green was telling the truth,and when he tried to take a
polygraph examination a few days before his scheduled
execution, the state ofGeorgia refused to allow the examiner
into the prison. As the pressure for symbolic retribution
mounts, thecourts, like the public, are losing patience with such
details. Green was electrocuted on January 9, whilemembers of
the Ku Klux Klan rallied outside the prison.The there is another
sort of arbitrariness that happens all the time. Last October,
Louisiana executeda man named Ernest Knighton. Knighton
had killed a gas station owner during a robbery. Like any
murder,this was a terrible crime. But it was not premeditated,
and is the sort of crime that very rarely results in a
deathsentence. Why was Knighton electrocuted when almost
everyone else who committed the same offense wasnot? Was it
because he was black? Was it because his victim and all 12
members of the jury that sentencedhim were white? Was it
because Knighton’s court-appointed lawyer presented no
evidence on his behalf at hissentencing hearing? Or maybe
there’s no reason except bad luck. One thing is clear: Ernest
Knighton waspicked out to die the way a fisherman takes a
cricket out of a bait jar. No one cares which cricket gets
impaledon the hook.Not every prisoner executed recently was
chosen that randomly. But many were. And having
selectedthese men so casually, so blindly, the death penalty
system asks us to accept that the purpose of killing each ofthem
is to affirm the sanctity of human life.The death penalty states

are also learning that the death penalty is easier to advocate
than it is toadminister. In Florida, where executions have
become almost routine, the governor reports that nearly a
thirdof his time is spent reviewing the clemency requests of
condemned prisoners. The Florida Supreme Court ishopelessly
backlogged with death cases. Some have taken five years to
decide, and the reset of the Court’swork waits in line behind the
death appeals. Florida’s death row currently holds more than
230 prisoners.State officials are reportedly considering building
a special “death prison” devoted entirely to the isolation
andelectrocution of the condemned. The state is also
considering the creation of a special public defender until
thatwill do nothing else but handle death penalty appeals. The
death penalty, in short, is spawning death agencies.789101112
And what is Florida getting for all of this? The state went
through almost all of 1983 without executinganyone: its rate of
intentional homicide declined by 17 percent. Last year Florida
executed eight people – themost of any state, and the sixth
highest total for any year since Florida started electrocuting
people back in1924. Elsewhere in the U.S. last year, the
homicide rate continued to decline. But in Florida, it actually
roseby 5.1 percent.But these are just the tiresome facts. The
electric chair has been a centerpiece of each of Koch’srecent
political campaigns, and he knows better than anyone who little
the facts have to do with the public’ssupport for capital
punishment. What really fuels the death penalty is the
justifiable frustration and rage ofpeople who see that the
government is not coping with violent crime. So what if the
death penalty doesn’twork? At least it gives us the satisfaction
of knowing that we got one or two of the sons of
bitches.Perhaps we want retribution on the flesh and bone of a
handful of convicted murders so badly thatwe’re willing to
close our eyes to all of the demoralization and dangers that
come with it. A lot of politiciansthink so, and they may be
right. But if they are, then let’s at least look honestly at what
we’re doing. Thislottery of death both comes from and

encourages an attitude toward human life that is not reverent,
butreckless.And that is why the mayor is dead wrong when he
confuses such fury with justice. He suggests that wetrivialize
murder unless we kill murderers. By that logic, we also
trivialize rape unless we sodomize rapists.The sin of Kitty
Genovese’s neighbors wasn’t that they failed to stab her
attacker to death. Justice doesdemand that murders be
punished. And common sense demands that society be
protected from them. Butneither justice nor self-preservation
demands that we kill men whom we have already
imprisoned.The electric chair in which J. C. Shaw died earlier
this year was built in 1912 at the suggestion of SouthCarolina’s
governor at the time, Cole Blease. Governor Blease’s other
criminal justice initiative was animpassioned crusade in favor
of lynch law. Any lesser response, the governor insisted,
trivialized the loathsomecrimes of interracial rape and murder.
In 1912 a lot of people agreed with Governor Blease that a
properregard for justice required both lynching and the electric
chair. Eventually we are going to learn that justicerequires
neither.

ZACHARY SHEMTOB AND DAVID LATZachary Shemtob, formerly editor in.docx

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