One of the most acute
comments about the death penalty was made by a fictional character: the wizard
Gandalf in J.R.R. Tolkien's The Lord of the Rings. Gandalf reproves Frodo, the
book's hero, when Frodo expresses regret that the murderous Gollum has not been
killed: "What a pity Bilbo did not stab the vile creature when he had the
chance!"
"Pity?" replies Gandalf. "It was pity that stayed his hand. Pity, and mercy: Not to strike without need." Frodo answers that he does not feel any pity for Gollum: "He deserves death." "Deserves death!" Gandalf responds. "I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then be not too eager to deal out death in the name of justice, fearing for your own safety. Even the wise cannot see all ends."
As an opponent of the death penalty I'm of two minds about former Illinois Gov. George Ryan's decision to commute the death sentences of all 171 inmates on the state's death row. On the one hand, Illinois' horrific record of sentencing innocent men to death (since the reinstatement of the death penalty more residents of the state's death row have been exonerated of the crimes for which they were wrongly convicted than have actually been executed) is as good an argument as one could hope for in favor of abolishing capital punishment.
On the other hand, Ryan's actions, while legal in the narrowest technical sense, represented a betrayal of his oath of office, which included the promise to enforce the laws of his state fully and fairly, even if that promise should require him to oversee legal outcomes to which he was personally opposed.
It's one thing for an anti-death penalty governor to use the pardoning power - a legal anachronism from the days of the divine right of kings - to spare convicts in regard to whom serious questions about guilt have been raised, or who, even if clearly guilty, appear to have been sentenced to death for arbitrary or malevolent reasons.
It's quite another for a state's chief executive to overturn a central aspect of his state's legal system wholesale, because he is morally opposed to that practice. In dozens of the cases in which Ryan granted commutations there was no question of guilt, or that the convicted individuals deserved death as a matter of law. In such cases Ryan's only excuse for his actions was that the death penalty offended his conscience, and that henceforth he would "sleep well knowing I made the right decision."
This comment represents what might be called the "Oprah-ization" of our politics. The degree of self-absorption we tolerate in public life is such that no one even bothers to point out that political leaders shouldn't be making decisions on the basis of whether those decisions will give them a good night's sleep. Governors aren't elected to make decisions that make them feel good about themselves. They are elected to, among other things, enforce the law, no matter how personally distasteful or even revolting they might find that duty sometimes is.
One of the best reasons for opposing the death penalty is, as Gandalf suggests, that we are not wise enough to know when it is truly warranted. George Ryan twisted that insight into the conclusion that he was wise enough to know that it was never warranted, even if the people who elected him disagreed. In doing so, he perpetrated an injustice that is almost as grotesque as those that placed so many innocent men on his state's death row.
Paul Campos is a professor of law at the University of Colorado. He can be reached at paul.campos@colorado.edu.