Under Penalty of Death

Indignation over the recent “60 Minutes” program on Dr. Jack Kevorkian betrays our inconsistent national policy, and ambivalent cultural assumptions, about life and death.

There is a remarkable synchronicity between last week's controversial “60 Minutes” program featuring video footage of a euthanasia procedure, and a guy nicknamed “Hurricane.”

Let’s start with the Sunday, November 22, CBS news show, “60 Minutes,” where Dr. Jack Kevorkian administered one of his drug cocktails to a 52 year old man named Thomas Youk, who was paralyzed and in the final stages of Lou Gehrigs disease. Youk reportedly lived in terror that he would literally suffocate to death, unable to breath; he had asked Kevorkian to administer the drugs, and by all accounts this act -- controversial as it might have been -- represented something done with everyone’s informed consent. Youk’s wife expressed relief that his years of pain and suffering were over. Kevorkian, admittedly an impassioned crusader and showman, dared the authorities to prosecute him; a prosecutor in Oakland Park, Michigan (site of the euthanasia) has taken up the challenge, and says that his office will be filing murder charges.

There was considerable outcry and hand-wringing from many quarters both before and after the airing of the 60 Minutes program. In Philadelphia, the Roman Catholic Archdiocese contemplated legal action to try to stop CBS from airing the show. Only after attorneys advised Cardinal Anthony Bevilacqua and his staff that the move had little prospect of success (due to the encumbrances posed by the First Amendment) did the Archdiocese then begin “asking” local affiliates to refrain from showing the Kevorkian segment. Much the same took place in Detroit, where early this month Bishop Anthony Madeira helped to orchestrate a successful campaign against an assisted suicide measure which had been placed on the state ballot. Elsewhere, religious and “pro-life” groups spoke out against CBS mustering a litany of clichés which described 60 Minutes as “irresponsible” and branded Kevorkian as a publicity seeker who endangered the lives of terminally ill people everywhere, and of “crossing the line” between facilitating a suicide and actively euthanizing a person.

There was little attention paid, though, to an event that took place a week before the 60 Minutes program aired. Like the Kevorkian case, it involved issues of life, death and the pressing question “who decides?” It’s a story best told by remembering a fellow named Rubin “Hurricane” Carter. The Hurricane was one of the greats of boxing, in the same league which Muhammad Ali, Joe Frazier, Roberto Duran and Kid Gavalan. Five years after starting a career in the ring, Carter was on the verge of a World Championship bout when he was arrested and charged for a triple murder. He steadfastly maintained his innocence, but was convicted and ended up barely escaping the electric chair.

Eight years later, the state’s two witnesses against Hurricane recanted their testimony. Carter wrote an autobiographical account, aptly titled The 16th Round: From Number 1 Contender to Number 45472. Bob Dylan immortalized his case in the song “Hurricane,” and publicity about Carter’s case finally resulted, in Feb. 1988, with the dismissal of the 22-year old indictment. Hurricane then hit the road as a guest lecturer speaking on the injustice and arbitrary nature of state sanctioned capital punishment. He testified before the US Congress on the need to preserve federal review of state court death penalty convictions; and a different sort of justice was finally given to Rubin Carter when the World Boxing Council, at its 30th annual convention, saw fit to award him -- long over due -- the World Championship Belt.

Carter now lives in Toronto, but returned to the US earlier this month to speak at the National Conference on Wrongful Convictions and the Death Penalty, sponsored by Northwestern University. Twenty nine other people were also there, people who -- like Hurricane Carter -- had been falsely accused, falsely convicted and finally freed after years of imprisonment. Some had escaped execution by just hours.

America’s contemporary love affair with capital punishment dates to 1976, when the Supreme Court reinstated the death penalty. Spurred on by talk about a “wave of senseless murder,” or the need to declare a “war on crime,” states have fired up their electric chairs, refurbished their gas chambers, or opted for the more “humane” solution of creating a surgically sterile environment for lethal injections. Despite the popularity of high profile cases involving serial killers like Ted Bundy or John Gacy, though, Americans remain painfully unaware of the high cost for this social policy and public spectacle. Since 1976, seventy -five people convicted of capital crimes have been freed from death row. The Nation magazine notes in its December 14 issue, “that’s one exoneration for every seven executions, a staggering indicator of the unreliability of the criminal justice process.”

But what does all of this have to do with Kevorkian, and the question of physician assisted suicide or active euthanasia? Not even the prosecutors dispute the facts as they unfolded on 60 Minutes, that Thomas Youk was existing in a state of prolonged pain and suffering, and wished to terminate his life. What Kevorkian did, in administering a lethal cocktail of drugs, lacked even the legal complexities which critics of euthanasia often point to, such as a patient in a vegetative state with little or no reasonable chance of recovery. It was cut and dried. Medical science offered no immediate prospect for a cure, or even stabilization of his condition. We have every reason to believe that Youk, in possession of his mental faculties, wished to end his life or have it ended for him.

Many of the Americans who find this horrifying or distasteful, or echo the cant that Kevorkian “crossed the line” -- an assertion based on the flimsy technicality that he, rather than the patient, facilitated the injection of drugs -- seem to be oblivious, or perhaps even supportive of this country’s romance with capital punishment. (Youk was paralyzed, unable to activate any mechanism -- a symptom of the progressed stages of Lou Gehrigs disease.) Texas and Florida lead the nation in government executions. These events are sometimes the venue for morbid gatherings of death penalty advocates who, after several hours of tailgate camaraderie, drinking and bar-be-queing, cheer at the news that a death row inmate has been executed. Florida’s electric chair was affectionately referred to as “old sparky” due to its habit of burning the inmate’s flesh. Even the execution of a “born again” Christian, Karla Faye Tucker, resulted in cheers and whoops of enthusiasm outside the Huntsville unit of the Texas prison system -- surely a shock to many of Tucker’s supporters.

We would not buy cars, or television sets, or fly on planes which malfunctioned on one of every seven occasions, would we?

Arguably, some of those who have been convicted and executed were indeed guilty of the crimes they stood accused of. If the statistics patiently and exactingly compiled at the National Conference on Wrongful Convictions and the Death Penalty are any indication, though, many were not. The figure of one out of every seven may even be low; many convicted death row inmates, for instance, are black, and simply did not have the benefit of the “dream team” legal defense some white, or blacks like O.J. Simpson could afford.

Unfortunately, there is not a prime-time show which takes the other side of the criminal justice issue, perhaps a balance to the lurid programming of “America’s Most Wanted” or other media pabulum that uncritically sensationalizes violent crime and urges citizens to “fight back.” There is no program, for instance, that has a sophisticated reenactment of the case of the Ford Heights Four, young men who were falsely convicted of a pair of 1978 murders. Two drew life sentences, the other two were condemned to death row. Their cases happened to catch the attention of a Northwest University journalism professor named David Protess who decided to investigate, and made the Ford Heights Four a class project. It is also doubtful that network moguls would care to launch, say, “America’s Falsely Accused,” and discuss for prime time viewers the case of Willie Enoch, an Illinois man convicted in a 1983 stabbing death and sentenced to die for the crime. A day before he was scheduled to be executed by lethal injection, he won a temporary stay and an order for an independent DNA examination on a crucial piece of evidence. Prosecutors in Enoch’s case had run their own test, but refused to permit review by outside experts. Enoch, in the shadow of the death house, was exonerated and freed.

So, there is a paradox here. Polls suggest that a majority of Americans support the termination of life when it is part of an unreliable criminal justice system which critics charge discriminates against the poor and people of color. We would not buy cars, or television sets, or fly on planes which malfunctioned on one of every seven occasions, would we? Bill Gates would not be the world’s richest person if Windows failed miserably 14% of the time a personal computer booted up. We nevertheless accept this benchmark, this standard, in giving the state the awesome, ultimate power to terminate life against the will of the victim. Were the figure reduced to, say, 5% or even 1%, or even managed somehow to operate infallibly, the moral questions concerning capital punishment remain, of course. Who decides the question of life and death? Should even the government enjoy such a fiat?

At the opposite end of this spectrum, though, are people like Thomas Youk. Church and state, which often have claimed the sole authority in defining when persons must, or may die, choose again to impose their set of ideological assumptions. The death penalty advocates insist that life and death is ultimately a decision for government; the church turns this responsibility over to god. In neither case is “a person’s life” really the property of that person, to do with as he or she judges best.

Why should this be an important issue for Atheists?

Unlike the religious, we have no belief that upon death anything of our “selves” survives, or lives on in heaven, hell, purgatory or some other version of the “hereafter.” Based on the evidence, we have one, and only one, lifetime. When a person dies, or is executed, or falls to misfortune, that is it, an existential end, a metaphysical terminus. Our lives are bracketed by temporal oblivion. There is no opportunity for “redemption,” no chance to square a circle of injustices in another “great beyond.” There is no god to “sort out” saints and sinners. This is “it.”

So, in the case of Thomas Youk, or Hurricane Carter, or any of us, the question is quite basic: who decides? Governments and religions have, throughout history, usually evoked brute force in playing the role of arbiter in such matters. It is a decision which might result in the wholesale slaughter of organized warfare; even Stalin observed that the loss of one life is a tragedy, the loss of thousands a mere statistic. Or, it can be some theory of retributive justice, where the state, often sanctified by religious doctrine, claims to dole out executions as if balancing scales in a corner meat market. In both cases the control of one’s life defaults to others.

This renders some of the criticism leveled against Jack Kevorkian, and CBS for its decision to air the controversial 60 Minutes, just so much rhetorical bluster. The Boston Globe editorialized that the program was “a disgrace” and “act of barbarism.” The paper declared that Kevorkian had “wrested written permission from the victim and then killed him with a quick series of injections.” Really? Americans had been watching a televised build up for several weeks in the Middle East of a more organized and widespread “act of barbarism” which, without the benefit of a “quick series of injections,” was designed to carry out a high-tech war over Iraq which could have killed thousands. We tolerate acts of “barbarism” every day, reduce them to a video game of smart bombs, “intelligent weapons,” and faceless enemies. There may be something for the assertion that in sterilizing war, and erecting distance and other barriers between the combatants, we have made systematic killing on a large scale more palpable.

Jack Kevorkian has challenged that premise. If the decision about life or death does not belong to Thomas Youk, who does decide? Whose life is it, anyway? Michigan prosecutor David Gorcya, in filing charges against Kevorkian earlier this week, declared, “Not withstanding Mr. Youk’s consent, consent is not a viable defense in taking the life of another, even under the most controlled environment.” Listen and read carefully. If consent is at least not part of this equation, then surely, how can we take the lives of those who choose not to be executed?

To our credit, though, there is evidence that Americans may harbor an astonishing amount of support for Jack Kevorkian, and sympathy for those terminally ill who are in suffering, and wish to end their lives. The latest CBS poll shows that 19% of respondents said Kevorkian should be prosecuted for murder, 27% opted for lesser charges, and 39% insisted that he should receive no punishment. Sentiments like this may account for why Kevorkian, who has assisted in 130 suicides since 1990, has been acquitted in three trials involving five deaths. A fourth trial ended in a mistrial. Even the most zealous prosecutors, including Mr. Gorcya, know that finding a “hanging” jury to convict Kevorkian may be nearly impossible.

Kevorkian has raised an issue which is long overdue for serious discussion. This is about more than the ability of modern medical technology to prolong life. It is also about the failure of that newest and frailest of the sciences to postpone the inevitable, at least as we know it today. Our average lifespan has increased remarkably over the past century, due to a mix of factors including nutrition, vaccination, “miracle” drugs such as antibiotics and surgery. This carries us only so far along the timeline, though; sooner or later, some will confront the same dilemma that Thomas Youk did, the task of measuring the quality of one’s existence with the sheer temporal prolonging of that life. Kevorkian rightly sees this as a matter not for him, or the government, or the theologians to decide. “If you don’t have liberty and self-determination,” he said, “you have nothing.”

So, who should decide?

If we ever have to face that question, let’s hope that the answer is -- “you do.”

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