The quote comes from Dylan Thomas, from “A Refusal to Mourn the Death, by Fire, of a Child in London,” in Under Milkwood. The subject comes up with the death penalty, that canker sore of American jurisprudence that generates endless litigation and appalling decisions.
A few days ago, the Supreme Court ruled in Baze v. Rees that death by lethal injection is not “cruel and unusual punishment” that violates the Eighth Amendment to the Constitution. Although the decision prompts many thoughts, I mostly find myself struggling with the minute attention paid to the technology of taking life. It seems such a sad abdication of the central moral issues presented.
As the Supreme Court wrote in Woodson v. North Carolina, “Death is different.” After the first one, there is no other. So for an organized society to strip a person of life, there must be perfect knowledge that the accused did it, that what he did is unforgivable and incomprehensible, and that the society requires that this life be taken in order to serve some huge social good.
I first really thought about the death penalty when I clerked for Judge Skelly Wright at the U.S. Court of Appeals for the District of Columbia Circuit. A Louisiana liberal — a rarity in all eras — Judge Wright spoke occasionally of the only case he argued in the Supreme Court, the Willie Francis case. A new book, The Execution of Willie Francis, tells the story. Francis was to be executed in a small town. They brought the electric chair in on a flatbed truck and hooked it up to a long extension cord run out from the parish courthouse. They strapped Francis in and threw the switch. Nothing. They kept trying, but the thing wouldn’t work. Finally, they gave up and sent Willie back to jail.

A long legal battle was fought to stop the state from trying to kill Francis again. The Supreme Court ruled, 5-4, that his first pseudo-execution was no barrier to a second one, more competently managed. And so he was executed.
I thought as a young man that I opposed the death penalty completely. I knew that the judicial system gets cases wrong. Innocent people are convicted. The DNA acquittals we have seen in recent years makes that undeniable. That means that innocent people have been and will be executed.
But then I read the decision in State v. McCorquodale, 211 S.E.2d 577 (Ga. 1974). It involved a multi-day torture murder, for no discernible purpose other than the sheer thrill of it. I was upset for days. What does society do with people like that? People like Jeffrey Dahmer? Do we have to keep them around? Don’t we have the duty as a civilized society to say that this person is so hateful, and his conduct so hateful, that we must pass judgment that he is not fit to share the earth with us?
I still oppose the death penalty the way we do it, the imperfect way human beings will always do it. By preserving the right to remove McCorquodale and Dahmer from society, we necessarily create the opportunity — nay, the certainty — that innocents also will be executed. What a rotten business.