by Richard L. Franklin
6/26/07
As of late, I've only rarely seen the death penalty discussed within the framework of traditional theories of democratic social contract. That topic is a book waiting to be written. After all, theories of social contract were discussed at length by the American founders, and the Bill of Rights was assembled with notions of a social contract hovering in the background. The Enlightenment was in full swing back in those times, and rational social contract theories were in the air. We are therefore long overdue in making use of this concept when it comes to discussing the death penalty in America.
When a state invests itself with the right to kill its own citizens, it has profound implications for any theory of democracy or the usual notions of a social contract underlying the so-called American 'democracy'. Before I get into the coupling of American theories of democracy and social contract, I hasten to say I see the notions of social contract as formed by thinkers such as Hobbes, Hume, Locke, and the more intellectual of the American founders as being heuristic devices or simple metaphors. After all, there never has existed an actual anarchic state of nature in which a war of man against man existed prior to the emergence of the modern state with its written constitutions. Tribes existed as organized societies as soon as humans walked the earth.
Let's just say the idea of anarchic warring humans in a primitive state eventually gathering together to form a social contract is a useful heuristic tool. If it aids our understanding of the American 'democracy' and its meaning, it surely is a tool we should not readily discard.
With that in mind, let's pause to consider what a sane person in a state of nature would agree to in a social contract. Would he agree to surrender to the government a right to take his life if he were to violate the laws that have been created under the umbrella of a social contract?
We need pause for a moment to offer a concrete example, so as to give measure to the full impact of what is involved here. During my lifetime, several states had a death penalty statute for the performance of oral sex or anal sex or sex with animals. These laws came under the umbrella known as sodomy. This meant de facto that an angry spouse could make a complaint against his or her spouse for performing oral sex, and he or she could theoretically end up being literally fried in the electric chair.
Does that sound outlandish? Not really. I have a clear memory of an angry Chicago wife signing a complaint complaint against her husband for violating the state sodomy law. When hauled in for questioning, the man quite readily admitted to having gone down on his wife, since it never occurred to him that his actions were criminal. He was forthwith convicted of a felony by his own words and sent to prison. That's pretty bad, but since Illinois once had a capital punishment law for sodomy, we might say he got off easy. It took the money and power of Hugh Hefner and Playboy Magazine plus years of litigation before this man was finally paroled.
Illinois has a long and colorful history regarding its capital laws and punishments. Quite recently, a bunch of law students proved that a majority of 25 prisoners on the Illinois state death row were innocent, thusly destroying for all time the absurd claim that no innocent person has ever been executed in America. It was only through a bizarre fluke that a bunch of students bared the truth about how capital laws are abused in this country and how innocent people are routinely killed by the state.
Getting back to the social contract, would a person in a state of nature sign onto a social contract that might entail his being executed for making love to his wife with oral sex? Of course not. No rational person in a state of nature would ever agree to giving that kind of power to the state. The fact is it's impossible to visualize a person in a state of nature ever agreeing to give to a proposed state the power to kill him if that state should arbitrarily decide to kill him as punishment for private acts he believed were wholly private and harmless.
The empirical reality is that there will always be new constituencies springing up to campaign for capital punishment laws for acts they especially abhor, often for all sorts of irrational reasons. There still is a huge constituency for executing Jane Fonda for visiting North Vietnam during the 60s. There also will always be politicians capitalizing on the proposal of and creation of new capital crimes. Bill Clinton ran amok signing a host of new capital laws into existence. Using the Oklahoma City false flag operation, he signed so many new federal capital crimes, it raised the number of capital Federal crimes to sixty. One of these laws made executions dependent on just how many ounces of pot or coke a person had in his or her possession, thusly making life or death dependent on the accuracy of a scale or on some kind of arbitrary judgment as to how much was 'too much' by the powers that be.
'Rex non potest peccare.'
Going one step further, would a person in a state of nature agree that the 'king can do no wrong'? It is quite clear that this doctrine was anathema to the American founders. This brings us to a conflict between the doctrines and the later workings of the American system. The great Declaration lists life as an inalienable right. This would seem to militate against any laws giving the state the right to kill its own citizens, i.e. those who have presumably signed onto the American social contract. Common law, on the other hand has always vouchsafed the right of the state to kill its own citizens, but common law has often endorsed obscene punishments for harmless actions.
Based on my own research, I estimate that at least 20% of executions in the US have been wrongful killings of innocent people, with a large percentage of these being poor blacks with incompetent court-appointed lawyers. The argument of pro-death-penalty agitators that this is a cost one has to pay for living in our wonderfully democratic America is sickening. Those who make this claim are unlikely to ever be framed for a murder and then killed by the state, nor is it likely any of their friends or relatives will be unjustly framed and executed. Common wisdom suggests that such folderol is easy for them to spout due to their race, economic class, and so on.
In summary, so long as capital punishment (and therefore the murdering of innocent persons by the state) continues in this country, it will be incorrect to call America a democracy in any deep sense. This sole fact militates against the longtime democratic social contract theory embraced by most democratic thinkers in the Western World. Despite this growing majority among other democracies, efforts to increase the right of the state to kill its own citizens has been a steady drumbeat among those of the American right. With a false flag operation once again being used by the American government to foment a constant state of anxiety among the American people, we are likely to see a will to expand the number of capital crimes.
First came Oklahoma City and Clinton's waiting-in-the-wings huge increase in federal capital crimes. Then came 9/11 and a steady drumbeat to allow torture, disappearing of prisoners, and arbitrary executions. The inability of Americans to realistically appraise the realities of Empire America has led us down a precipitous path toward neofascism, with state executions being only one of the more serious symptoms of that downward slide.
The foundations of America's putative democracy are crumbling at a scary rate. The capital punishment horror story is but one facet of a so-called 'democracy' that is crumbling on nearly every front. There are many causes one might embrace, but the state killing of its own citizens is a horror that has always weighed as heavily on my mind as any of our assorted national catastrophes.
Richard L. Franklin is the author of 'The Mythology of Self-Worth'.
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