Accepting the death penalty.

Talk Left notes a news report that says 12% of those who receive the death penalty choose not to appeal and suggests this is rational. Interesting. Back when Gary Gilmore refused to appeal his death sentence, people found it very disturbing that a man wouldn't fight to stay alive. There was an effort to bring an appeal for him, in spite of his refusal, with his mother as the party representing him, as if his refusal to appeal was a sign that he needed someone to stand in for him. The Supreme Court said she didn't have standing.

I wrote a law review article back in 1991 about Gilmore and a later case Whitmore, in which another person given the death sentence tried (unsuccessfully) to represent a murderer who declined to appeal. (The article is not linkable, but here's the cite: Althouse, Standing, in Fluffy Slippers, 77 Va. L. Rev. 1177 (1991).) [UPDATE: You can read it here.]

Here's a footnote from that article, on this question of whether it's sane to accept the death penalty:

This preference for death over prison is scarcely bizarre. Gilmore's decision, as reported in The Executioner's Song, seemed entirely sane and rational, given his long experience of the reality of prison life. Popular songs have long portrayed a life sentence as worse than execution. See G. Brooks, "Send Me to the 'Lectric Chair" (Mills Music, Inc. 1927) ("Now I don't want no bondsman here agoin' on my bail,/And I don't wanna spend them nine and ninety years in jail;/So judge, judge, good kind judge,/Send me to the 'lectric chair."); M. Haggard & J. Sanders, "Life in Prison" ("I begged they'd sentence me to die/ But they wanted me to live and I know why -- My life will be a burden every day/If I could die, my pain might go away."). And Patrick Henry said, "give me liberty or give me death!" to the 2d Revolutionary Convention in Virginia, March 23, 1775 (cited in 14 Encyclopedia Americana 108 (1986)), a sentiment the state of New Hampshire compels its drivers to bear on their license plates. See Wooley v. Maynard, 430 U.S. 705 (1977) (Court straining the doctrine of Younger v. Harris, 401 U.S. 37 (1971), to bar prosecution of the nonconformist couple who took offense at the slogan "Live Free or Die" and covered it up with tape); see also Cruzan v. Director, Mo. Dep't of Health, 110 S.Ct. 2841, 2885 (1990) (Stevens, J., dissenting) (citing Patrick Henry's quote in recognizing a "right to die"). For futher discussion of the Cruzan case, see infra note 57.

The most widely venerated refusal to fight the death penalty was that of Jesus: "Pilate questioned him again: 'Have you nothing to say in your defense? You see how many charges they are bringing against you.' But, to Pilate's astonishment, Jesus made no further reply." Mark 15:4-5. Like Gilmore, Jesus withdrew from the process the law afforded him and accepted execution. Why has Jesus' choice inspired reverence and Gilmore's scorn? Gilmore turned his back on a legal system we still support and view as a source of justice; Jesus turned his back on a legal process we consider corrupt and evil. Perhaps it is not that we despise the acceptance of death, but that we judge an expression of contempt of the legal system in accordance with our opinion of that system.

Socrates is also famous for accepting the death penalty. See Plato, Crito, reprinted in Plato, The Last Days of Socrates 53-70 (H. Tredennick trans. 1954). Unlike Gilmore and Jesus, however, Socrates did not refuse any available step in the legal process. He refused the extralegal step of escape and argued against violating the law in a legal system that had wronged him. Thus, he expressed the very antithesis of contempt for the legal system.

The most obvious explanation for the scorn directed at Gilmore is simply that in judging him, we cannot separate his preference for death from the fact that he was a murderer, just as we cannot separate our judgment of Jesus and Socrates from our knowledge that they committed no offense we can remotely understand as punishable by death. Whereas Jesus and Socrates were great men we would never have condemned, Gilmore was a social excrescence whose demise relieves us (judgment takes place in context, not in the abstract). Or perhaps, at least for those who support the death penalty, scorn for Gilmore's choice expresses frustration that he somehow destroyed the state's power to punish. Someone who prefers death will only be killed by execution -- not punished. Gilmore is incomparable with Jesus and Socrates for any number of reasons, but among those reasons is that only Gilmore deprived us of whatever satisfaction attaches to social vengeance.

It was hard to go through with writing a law review footnote like that, and this was an article full of unusual touches. The nice thing is that if you do write something strange and a law journal accepts it, they're not going to try to edit you into the form of the standard law review article. I wrote about that phenomenon in a little article called "Who's to Blame for Law Reviews?" And I maintain a very high opinion of the Virginia Law Review editors who accepted the "Fluffy Slippers" article -- which is full of evidence that I was dying to blog -- and who gave it such a sympathetic edit.

But back to the death penalty, what do you think of those who don't appeal? I assume these are all people who have only the hope of life in prison and who do not have a chance of going free, that is who would only be challenging the sentence not the finding that they were guilty of the crime.

Here in Wisconsin, we don't have the death penalty and haven't for over a century, but we'll be voting on the death penalty this fall. A new poll shows 54% of likely voters favor it, over 39% opposed. Check out the new "No Death Penalty" website, which is working against the Wisconsin referendum.