Beyond the 'Humanly Tolerable'.

For a long time, it has seemed that conservatives are as mindlessly enamored of the hangman as liberals are of the abortionist. Given recent developments, however, we may now see a break in at least the former affinity. It would be salutary if George W. Bush, the champion of "compassionate conservatism" and the official in charge of the busiest assembly line of executions in the nation, were embarrassed by the sordid details that have come out of Texas. Perhaps he might even be induced to add a modest disclaimer to his bland assertion of confidence that no innocent person has ever been executed on his watch.

The evidence is rapidly mounting of the likelihood that innocent people have indeed been executed all along. And, as Carl M. Cannon said in the recent National Review, conservatives should not be surprised by this, since the judicial system, after all, is a branch of government: Con servatives have a supremely validated suspicion about government in all of its branches. It is almost an instinct of conservatives to distrust the wisdom of government, and therefore to limit its powers; surely this distrust should extend to this ultimate power over life and death.

To limit the power of government to take life should be a conservative principle-and never mind if Jesse Jackson happens to agree with it. Cannon might have added that a large body of evidence suggests that the death penalty fails to deter, giving this particular exercise of governmental power a distinctively gratuitous character.

Opposition to the death penalty, in the United States as elsewhere, does in fact correlate with other liberal positions. One need have no sympathy with these other positions to agree on the death penalty, and one also need not agree with all the reasons given by liberals for their opposition. Clarence Darrow was an admirable character, but his famous defense of Leopold and Loeb was a masterpiece of mushy thinking: What he essentially said was that we are all animals determined by the laws of evolution-and therefore these two murderers should not be executed. The evolutionary maxim concerning the survival of the fittest in the struggle for existence seems to have escaped him (I would actually argue that Darrow was moved by compassion despite his rather silly philosophy). It is especially important to state that opposition to the death penalty is not necessarily linked to other "soft" attitudes toward crime (such as the notion that criminals are victims of society or that the judicial system should be a therapeutic institution). Opposition to the death penalty, I contend, should be based on much deeper grounds: on the perception that there are acts of cruelty that put in question our very humanity.

It is fair to assume that the overwhelming majority of Americans today are opposed to torture as a form of punishment. Why? It was, after all, a routine practice for much of history and, alas, is still routine in many countries today. One can imagine a social-scientific study showing that the prospect of torture would serve as an effective deterrent. One could also imagine certain judicial procedures to safeguard the innocent. I think (or, perhaps, as a pessimistic conservative, I should say that I hope) that the majority would still oppose torture, for the simple but crucial reason that this is a practice that offends our basic understanding of what is humanly tolerable. Of course, there are extreme cases that would put this understanding under pressure, as in the case of a captured terrorist who knows where an atomic bomb has been placed to go off. But here is another sound conservative principle-that good law must not be based on extreme cases.

And here is the critical insight relevant to this debate: The death penalty is an exercise of torture, superficially sanitized by the quasi-medical method of execution now prevalent in this country. It is an act of unutterable cruelty to hold an individual in prison and to inform him that he will be put to death on a specified date. To perceive the death penalty in this light is not the result of a philosophical or empirical argument. Rather, it is a primordial perception of the limits of what is humanly permissible. This perception, historically rooted in the Jewish and Christian view of the human condition, took a long time to mature and to be disseminated among significant numbers of people. An analogous case is the slow maturation of the perception that slavery is humanly intolerable. Slavery, torture, and the death penalty share this quality of an act that demeans those who inflict it as it degrades and torments those subjected to it. No civilized society should institutionalize such acts.

In the matter of the death penalty, the United States today stands virtually alone among democracies, in the company of a repulsive collection of tyrannies. It is no wonder that American preachments about human rights are treated with derision by many, especially in Europe and Latin America, who share American democratic values. Perhaps-and I say so with minimal optimism-the current debate over the death penalty will lead to a situation that will allow Americans to find other areas in which to affirm their exceptionalism.