Kevin Cooper

The situation evokes passion on all sides and raises once again a necessary consideration of the justification of the death penalty. It clear to everyone who has come to oppose the death penalty that the mass of available evidence indicates that matters of class and race play a predominant role in corrupting any potential judgment of guilt or innocence. The introduction of DNA testing in recent years has produced a plethora of instances in which it is made overwhelmingly evident that innocent human beings have been sentenced to severe penalty up to an including death. These arguments seem to me entirely valid and are sufficient reason for the opposing the death penalty as a valid punishment to be issued and enforced by the State.

However, the issue needs to be examined at a deeper level, for the logic on which such decisions are made is fundamentally deficient and corrupt and precludes any valid decision supporting the death penalty regardless of the extent of the evidence. The fundamental injustice of the death penalty within a legal system rests on the failure of the basic equation that justifies the penalty.

All life involves equations of one sort or another; when we are children we exchange valued possessions, one baseball card for another, one lunch we have grown weary of for something more appealing. As we grow older we decide to forgo one school for another, one major for another, one friend, one lover, one wife or family for other possibilities. Life is made of such estimates and exchanges: if I take this job and move to this place with its particular possibilities I have forsaken other life opportunities. In all these myriad acts we assume that such an equation rests on a logic of some sort; that we can estimate one place or person or opportunity as equivalent or superior to another. We apply some measure and take it that by that application we can determine which of the possibilities is more or less valuable. We certainly do not depend on mathematics or the functional curves of welfare economics. The procedure is more mysterious than we recognize, but we employ it nevertheless.

In the case of assigning capital punishment some people assume that such an equation must also prevail. For the murder of one or more people, the murder of the perpetrator is required to "balance" the "scales of Justice," and bring the equation of life and death back to some point of human equilibrium. It is admittedly an odd equation since for the original death we do not offer the reversal of this fact, the return to life, but another death, which might seem only to add to the horror we are concerned to mitigate. But the advocates of murder for the punishment of murder see the issue differently. For them, the second act, if it cannot reverse the first, can at least so affect the perpetrator that he or she is brought to the same condition as the victim and in that fact of death receive something appropriate by the equation of "justice" which brings the wound of the world closer to healing.

However one understands the justification of taking one life for another, there is a further aspect of the equation that must be included in any final appraisal of the death penalty. And that, simply put, is the fact that any judgment of guilt in which the harm done to a victim is equated with some penalty imposed on the accused, must be mediated through the claim of evidence. It must be brought to the attention of some individual or group of individuals, to some "jury" charged with the assessment of guilt and penalty, to evaluate the evidence that justifies or fails to justify the assessment of the penalty to be imposed. In most cases we accept this practice without much thought and pride ourselves on the condition by which a modern, civilized jury can assess the evidence and carefully, thoughtfully determine the guilt or innocence of the accused and assess an appropriate penalty in the circumstances.

In the case of capital punishment, when we choose to murder the accused, everything is different. For the fact of death exists on a fundamentally different plane from that on which the assessment of evidence prevails. For all evidence, no matter how thorough and carefully obtained, is finally contingent. It is an argument made of many strands of fact, implication, inference, appeals to feelings conscious and unconscious, provided by representative of the state or the accused with their various degrees of competence, boredom, ambition and principle. The conclusion of all these factors can never be final; it is always conceivable that some new fact or consideration will alter the original determination. And this is most obvious when one considers that the result in a capital case depends not only on the apparent fact of murder, for example, but on the intention of the accused, a consideration regarding which there can never be certainty in the realm of human existence.

The execution of the accused however is never contingent: it is absolutely final, certain, unalterable, permanent. If evidence is contingent, logically open to reconsideration, fissured, pliable, and humanly malleable, the consequence of the death penalty is the very opposite. If the one is plastic, the other is opaque, one subject to revision, the other fixed forever in its determination. Therefore, no evidence can ever equal in the logic of its claim, the finality of the loss of human existence which it is designed to serve. The two planes of human existence are absolutely heterogeneous. The murder of the accused, the imposition of the death penalty, is absolutely sui generis.

We will never know, in the strict sense of that term, whether Kevin Cooper was guilty of murder or not. The preponderance of evidence can swing form one pole to another, seeming overwhelming or empty at one moment or another. But Kevin Cooper put to death is absolute finality at the furthest limit of human understanding. He is, as dead, wholly beyond the nature of any conceivable reason, judgment, evidence or argument that can be provided in his regard.

It must finally be noted that the ultimate crime in such cases is that of the system that imposes this mismeasure of death by contingency, of permanent extinction by the limited use of human reason and passion; we must look finally to the court system that imposes the penalty, the citizenry that supports such manifestations of its vengeful will, the figures in high office that refuse even a hearing on the most recent evidence for the sake of corrupt pandering. All of these agents manifest an embrace of death, a violation of the meaning of human existence in its permanent possibility of transformation. It is absolutely true that the victim is permanently extinguished; but the attempt to reverse this fact by an additional act of State authorized dehumanization in which the living presence is turned into sheer facticity, can only reveal at its root, a love of death more powerful than any claim to life, reason or justice.

Richard Lichtman

http://www.zmag.org/content/showarticle.cfm?SectionID=43&ItemID=4973