The Everyday Death Penalty

Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. – Stephen Carter, Yale Law School

In recent decades, Western countries have evolved toward the idea that execution is barbaric and has no place in civilized society. Not that none of us ever nurses the desire to see someone hateful put to death, but as a formal political matter we generally no longer wish the government to liquidate criminals on our behalf. Most states in the American Northeast and Midwest have abandoned executions, and most of the rest have moratoria that block lethal punishment.

Thus the harshest penalty we would likely tolerate is life imprisonment. Yet even if every state banned capital punishment, there would still be sanctioned killings, in public, of citizens, performed by government officials. These killings would take place without recourse to the courts, and they would happen suddenly and “on the fly”, and they would be perfectly legal.

Such slayings occur all the time, but few of us even think twice about it. What’s more, these are deaths none of us would approve were they proposed in court as penalties.

Let’s say some guy likes to inhale a drug that’s been ruled illegal, and the cops get a complaint and show up at his doorstep to investigate, and they look through the front window and see the guy in his living room smoking the drug, so they pound on the door and shout, “Police! Open up!” and he yells, “No way, pigs!” so they break down the door and try to tackle him, but he fights back, wrestles with an officer for his gun, and they shoot him to death.

Well of course they did, because he grabbed one of their weapons, so the killing was in self-defense. The problem is that he died because he was doing privately something for which no one would ever want to execute him.

An old prospector lives quietly out in the boonies, but an official rules that his crumbling cabin is not up to code, so a sheriff’s deputy drives out to deliver an eviction notice, whereupon the prospector steps out onto the porch with a shotgun and points it at the officer, who pulls his own weapon and fires. Nice quick-draw! Justifiable homicide. RIP prospector.

You may object, “But no sane person would resist the police! This isn’t a problem except for crazies.” Exactly. It rarely happens precisely because we know the cops can shoot us if we resist. The penalty is there all the time; that it’s rarely used speaks to its sheer power to enforce behavior.

We recoil, of course, at abuses of this law enforcement prerogative, as with the asthmatic man who sold single cigarettes in contravention of a New York City law and ended up dead on the sidewalk from a police choke hold. Or the elderly lady in Atlanta who, fearful of violent drug gangs in her neighborhood, was quick to fire on a group who invaded her house, but who turned out to be local police breaking down the wrong door. (She lost the gun battle and is no longer with us. After realizing their error, the police tried to frame her with planted drugs, but that story soon fell apart.)

We can look at examples all day, but the point is that, no matter what law we pass, automatically we attach to it a potential death penalty for anyone who resists enforcement. This can arise with any statute that empowers police to detain suspects. And virtually every law contains that power. Public intoxication. Loud parties. Cigarette in a restaurant. Illegal left turn.

This isn’t the fault of the constabulary. What else are they going to do in these situations? It’s the nature of the beast. But we put the police in the uncomfortable position of having to use force, or its threat, not just to capture hardened criminals but to deal with every little petty lifestyle aberration we’ve seen fit to criminalize. 

The next time you’re deeply offended by someone’s behavior, and you urge support of a law against that behavior, remember that you are also sanctioning the immediate killing of violators, should they vigorously resist detention. We are fools to pretend that our pet ordinances against, say, plastic bags or topless bathing do not contain a real threat of death. 

With that in mind, we ought only to pass codes that forbid conduct so dangerous that the rest of us feel peril for our own lives. This rules out laws against things that merely bother or irritate us. And that’s most laws. 

So, yes, there’s still a death penalty on the books. And it will never go away. We should use it sparingly.

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UPDATE: Dispense a plastic straw, go to jail

UPDATE: “…Every law is violent. We try not to think about this, but we should. On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.” — Stephen Carter, Yale Law School [login required]

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Tagged: Eric Garner, Ferguson MO, LAPD Skid Row shooting, libertarian, threat of violence, use of force

Posted in: Politics