Of Execution and Slaughter

by Sherry F. Colb

In my Verdict column for this week, I discuss the parallels between the concepts, respectively, of "humane execution" and "humane slaughter," in the wake of the botched execution of Clayton Lockett in Oklahoma last month.  In the column, I take up the question whether there is anything inherently paradoxical about the idea of "humane" killing and, if not, whether there is nonetheless tension inherent in executing a prisoner or slaughtering an animal in a purportedly "humane" way.  In this post, I want to discuss an important difference between the execution of prisoners and the slaughter of animals, a difference that has less to do with humaneness than with the underlying meaning of each practice and what meaning can teach us about the two practices.

Let me begin with a story.  When I was a law clerk for Justice Blackmun in the 1990's, I recall a debate that broke out over e-mail between a number of law clerks from the different chambers.  As I recall, the Justices were considering an application for a stay of execution from a petitioner who was challenging the particular method by which he was to be executed as cruel and unusual punishment under the Eighth Amendment.  I do not believe that the challenge went anywhere at the time, but one of Justice O'Connor's clerks emailed all of us, marveling at the fact that we humanely kill dogs and cats at shelters all the time but seem unwilling or unable to extend the same mercy to an actual human being.

I was not a vegan yet at the time.  Indeed, other than loving dogs in general and my dog Scooter in particular, I had not remotely awakened to the contribution that my own daily consumption habits to the infliction of suffering and death on animals.  Yet I was nonetheless offended by what this law clerk had written about the purportedly "humane" killing of mere "animals" in shelters.  I should add here, before I say what my response to the email was, that I did not (and do not) support the death penalty.  Still, this is what I said (paraphrased, from memory):

"I agree that it is wrong to inflict pain on the condemned during an execution.  I am, however, offended by your suggestion that the condemned is necessarily entitled to a more humane death than the cats and dogs who die at animal shelters.  The condemned prisoner has been convicted beyond a reasonable doubt of murdering another human being and of doing so in a particularly cruel and sadistic fashion, a fashion which -- by the way (I was snarky back then) -- was far more lacking in humane considerations than anything that the State of Texas has planned for the petitioner.  By contrast, the dogs and cats who live in cages at animal shelters waiting to be killed have done nothing wrong and are utterly innocent creatures.  They deserve neither punishment nor death; they are dying only because no one wants to adopt them. I accordingly do not appreciate the implication in your email that there could no less deserving recipient of mercy than a mere "animal" in a shelter.

If I were to converse with the 26-year-old author of this email now, I would ask her why, given the position she takes on the killing of animals, she continues to consume the flesh and secretions of the sentient beings who are as innocent as dogs and cats and who die in far more gruesome ways at slaughterhouses, not because they are guilty of any wrongdoing, but because well-meaning people like [me at age 26] are largely oblivious of how their own demand for such products keeps the farms and slaughterhouses running.  I would encourage her to put her money where her mouth is and become vegan (and I would offer to support her in that process, as I have done for others in her shoes).

As a separate point, I think the exchange between the younger me and the other law clerk inadvertently highlights an important difference between execution and animal slaughter:  execution assumes about humans what animal slaughter denies about animals.  Executing someone for murder, in one sense, shows a profound respect for the human who is executed (and for humans more generally).  This may seem counter-intuitive, but we visit the death penalty upon a prisoner in recognition of the fact that he autonomously chose to act in a manner that made him deserving of death.  Indeed, some retributivists have argued that when an autonomous person kills another (without justification or excuse), then we owe it to that person to take his life.  To do otherwise would be to deny him the just consequences of his own choice.

One need not favor the death penalty, moreover, to understand that just punishment inherently recognizes the capacities of the person being punished to have done otherwise, to have chosen to do what is right.  By choosing to do what is wrong instead, this person selected his path, and that path rightly includes a reckoning, whether through capital punishment, imprisonment, shaming, or some other modality of penalty.

We see the truth of this observation in Supreme Court decisions that prohibit the execution of some classes of human individuals, in recognition of those individuals' lack of capacity.  People who are intellectually disabled, for example, may not be executed for their crimes, under Atkins v. Virginia,  because the Court regards them as categorically incapable of the sort of culpability that characterizes someone who can be deserving of the death penalty.  Similarly, a person who has become incompetent to be executed, in virtue of an inability to understand that he is being killed or why he is being killed, may not be executed either, as a matter of constitutional law, under Ford v. Wainwright.  Someone with these diminished capacities is not "qualified" for a penalty such as death, which requires a moral agent with a baseline level of cognitive functioning.  We do not, moreover, look at humans as a group to determine who may be executed for his crimes; we look very specifically at the individual who is to be killed and ask whether he in particular had (at the time of his crime) and has (now) what it takes.

Animal slaughter is very different.  The animals who are trucked to slaughterhouses to have their throats cut to satisfy the demand for flesh and other animal products are indisputably innocent of any wrongdoing.  They are innocent as individuals and as a group.  Indeed, their innocence is part of what people argue makes them appropriate for slaughter as "mere animals."  We do not look at the particular individuals (who number in the tens of billions) facing terror, pain, and death, and ask questions about what he or she is thinking or feeling relative to his or her fate.  On the contrary, we dismiss the individuality of animals and refer, as though to an undifferentiated substance, to "chicken," "beef," "pork," and "fish," rather than to chickens, cows, pigs, and fishes.  We do so in part because, we argue, these creatures purportedly lack some allegedly significant cognitive ability that would qualify them to be free of the indiscriminate violence they face at human hands. Unlike individual humans on trial for their lives, animals are classified by species DNA (as "not human") and accordingly dispatched instrumentally, for human consumption.

To say this differently, we circumscribe the death penalty -- in the United States -- and limit it to those individuals who are, among other things, (1) guilty of a heinous crime, (2) capable of understanding what is happening to them and why, and (3) capable, as a chronological and developmental matter, of intellectual performance that exceeds that of the population of humans who are intellectually disabled.  Thus, despite the moral difficulties that many of us (including me) have with the death penalty, it does make an effort to attend to a person's individuality and capacity in a way that shows respect for autonomy, life, and the abilities that typify "normal" humans who make the choice to do the wrong thing.  By contrast, we allow ourselves the "liberty" to slaughter all manner of living beings who think, who suffer, and bond with one another, and who experience fear just as we do, precisely because they lack the sorts of abilities that are a prerequisite to eligibility for the death penalty among humans.

This difference tells us something about an inconsistency in our thinking about "capacities."  When it comes to humans, a diminished capacity leads us to grant mercy and care, as a matter of law and -- for many of us -- as a matter of how we interact with people in the world.  We rightly regard as bullies those people who mock or otherwise inflict suffering on those humans among us who are intellectually disabled or otherwise lack some of the capacities that supposedly "raise" our species above all others in the world.  But when asked why we permit ourselves to cause great suffering and harm to animals, we say it is because "they" lack some special trait that distinguishes "us" from "them," a trait that is typically identified with our ability to use language (which many humans lack), our ability to make a life plan (which many humans lack), or some similar (and similarly irrelevant) capacity that those lucky among us have (for at least part of our lives).  Our mercy seems, in other words, to go in precisely opposite directions, depending on whether we are dealing with homo sapiens (where incapacity and vulnerability trigger mercy) or with our earthling relatives of other species (where incapacity and vulnerability trigger contempt, exploitation, and moral demotion)..

I believe we can learn something important from the moral growth that we have undergone when it comes to our thinking about the death penalty.  We correctly understand that rather than justifying cruelty and bullying, a human's lack of capacities rightly entitles that human to care and compassion and to freedom from violence and bullying.  We must come to understand that the same is true for the other animals.  I do not believe that other animals are "dumb," but to the extent that they lack some the abilities that have given humans power to decide their (and our own) fate, this vulnerability should lead us to grant them mercy and freedom from the extreme violence that is so pervasive in the form of cheeseburgers, fish patties, egg omelettes, and dairy yogurt.

Another point I would make on the issue of executions is that a major component of why many people have come to oppose the death penalty is the fact that people who are sentenced to death and executed are generally not, in fact, blessed with the same capacities and privileges that the rest of the population enjoys. Typically, such people have grown up with severe disadvantages, have often been abused themselves in violent environments, and are vulnerable in a variety of other ways.  In other words, the sort of autonomy that grounds our willingness to execute a person for his crime may often be lacking in the people who find themselves on death row, not because they are necessarily intellectually disabled (although quite a few are, and fights abound about who gets to "qualify" as intellectually disabled under Atkins) but because they may suffer from mental disorders (as a disproportionate number of prisoners generally do, relative to the rest of the population) short of insanity and of incapacity to be executed and may, on the whole, fall short of the image of the person who has freely chosen to commit a vicious crime on which a just system of punishment is based.

Some opponents of the death penalty have also documented and cited the racial disparities in sentencing that infect the death penalty and suggest that rather than showing respect for autonomous decisions-making, the death penalty may instantiate the sort of violence that once typified slavery and the post-civil-war era of lynchings:  violence against vulnerable and defenseless individuals who never really had a chance.  Whether one accepts this characterization of the criminal justice system or the death penalty, though, it is clear that what drives many objections to executions has a lot to do with the vulnerability of the death row population and the consequent unfairness of targeting such individuals for violence.  This objection can be made as effectively against the wholesale captivity, breeding, and slaughter that service consumer demand for animal products taken from innocent, vulnerable, and doomed domesticated animals.