Monday, December 5

Took, Took, Tookie Goodbye

There has been so much bloviating on both sides of the Stanley "Tookie" Williams affair that the one certain virtue in his death will be the end of the talk show circus of celebrity self-righteousness and the competing howls for blood.

For what it's worth, I don't think that this is a particularly difficult case.

But let me back up. (You didn't think that I'd let you off that easily, did you?)

I strongly support the institution of executive clemency--what conservative could gainsay such a venerable tradition? It has a particularly useful role as a safety-valve in cases where the appropriate response to an act is strict condemnation, but extenuating circumstances diminish the actor's moral culpability. In other words, the possibility of executive clemency frees a jury to enforce the law consistently, without having to engage in a sophisticated, and often distracting, moral calculus. An example may clarify my point.

Few taboos are as universal and enduring as cannibalism. Sawney Bean, Sweeney Todd, Hannibal Lecter: these are the embodiments of sub-human evil in our culture. In The Brothers Karamazov, Dostoevsky offered cannibalism as the exemplar of the most profound depravity when he argued that "[i]f you were to destroy in mankind the belief in immortality . . . nothing then would be immoral, everything would be permissible, even cannibalism." To the Victorian mind, no figure embodied the moral chasm dividing the civilized world from the unplumbed barbarism of the earth's dark corners so vividly as the cannibal. Against this background, the facts of the case of Regina v. Dudley, 14 Q.B.D. 273 (1885), provoked in Victorian Englishmen an admixture of horror and sympathy, and posed a sticky moral problem for the wretched defendant's jury. Keith Buckley, reference librarian at the Indiana University School of Law, takes up the story:

"In the summer of 1884, Tom Dudley, a sailor of very limited experience, undertook to sail the yacht, Mignonette, from England to Australia, taking with him a crew of two other sailors and a cabin boy, Richard Parker. While in the South Atlantic, the yacht foundered and sank on July 3rd, and the four hapless voyagers took refuge in the yacht's meager dinghy. The four men quickly exhausted what few rations were aboard the dinghy, and on or about July 24th, Dudley and his crew entered legal history by engaging in one of the darker practices of 'the natural law of survival at sea' and decided to eat the [almost unconscious] cabin boy. Soon after the foul deed was perpetrated, the three remaining men on the dinghy were rescued by a passing ship and were eventually returned to England. Once word got out about how the men had dined on the hapless cabin boy, the three sailors were arrested and later tried for murder.

"It is at this point, of course, that contemporary practices of the sea and the laws of land came into conflict. . . . [A.W. Brian Simpson, in his book Cannibalism and the Common Law (Univ. Chicago Press 1984)] makes it quite clear that cannibalism in the name of survival was a well-established, though rarely-discussed, maritime practice. While not every tale of shipwrecked sailors ends with an organized lottery to see who will be diner and dined-upon (in fact, several of the stories end with vicious feeding-frenzies that would rival modern horror films), [Simpson] builds a strong case for the fact that both the public and veterans of sea-travel were aware of the painful necessities should food stores run out. . . . [A]lthough found guilty of murder and sentenced to hang, Dudley et al quickly received a pardon from the Queen, amidst a great outpouring of public sympathy."

As Simpson explains the significance of the legal decision: "The sentence of death was a formality to emphasize condemnation of the 'custom of the sea': there was no question of it ever being put into effect." This is an important point. There are some acts so heinous that our society would endanger the proverbially thin veneer of our civilization if it were to permit the legal process to excuse them. To be a civilized society, we must be prepared to condemn cannibalism unequivocally, even if we whisper "there but for the grace of god . . ." as we do so. Executive clemency allows us to walk this moral tightrope; we can uphold our necessary taboos while still offering a Tom Dudley the mercy we would hope to receive in his place. No doubt many will attack this view as hopelessly hypocritical. I agree. I disagree, however, with the implicit judgment that hypocrisy is everywhere and at all times to be avoided. On the contrary, societies, no less than personal relationships, usually depend on it.

So what does any of this have to do with Mr. Williams, still languishing on death row? Well, not much. Mr. Williams earned his death sentence fair and square. He has had almost twenty-five years of appeals, during which literally dozens of judges--many of them liberal Californians--have considered and rejected his arguments that he is innocent, that the evidence at his trial was defective. and that he was denied an impartial jury. There can be no sympathy attaching to the circumstances of Mr. Wiliams's (literally) gangland-style execution of four innocent victims, for a gross take of about $30 per victim. Any appeal for clemency must, therefore, rest on other grounds.

Other than actual innocence, or sympathetic circumstances (as in Tom Dudley's case), the most obvious basis for clemency is redemption. A person who truly repents his crime and resolves to lead a productive life is a reasonable candidate to have his death sentence commuted to life in prison. This is a difficult judgment to make of any murderer, but there are compelling examples--perhaps most notably that of Alessandro Serenelli. But, again, Mr. Williams is not a candidate of this sort. Despite the strong evidence for his general change of heart, his outspoken criticism of the vicious gang lifestyle he helped popularize, and his much-publicized children's books (has anybody actually read one? are they any good? I'm actually curious), he has never admitted killing Albert Owens, Thsai-Shai Yang, Yen-I Yang, and Yee Chen Lin.

That, for me, is the decisive factor here, and the reason I began this post by noting that this is not a particularly difficult case. If you won't admit guilt, let alone apologize to your victims' families and to your society, then you are not a candidate for clemency. End of story. If we pardon a man who doesn't admit to doing wrong, then what are we pardoning him for? Aren't we tacitly accepting his argument that he is innocent and never belonged on death row? But if he is actually innocent, then that is a matter for the courts to resolve in the first instance, and for the executive to address only if, after all appeals have failed, compelling new evidence comes to light. That rare case, however, is not this case. Mr. Williams's final appeal was rejected by the California Supreme Court just last week and there have been no evidentiary revelations since then. Any appeal for clemency must, therefore, be based on repentance and forgiveness, but Mr. Williams has foreclosed that route by refusing to admit his crime. Appeals for mercy are thus misplaced.

Barring a pardon from Governor Schwarzenegger, Mr. Williams will die on December 13, 2005. May God have mercy on his soul.

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