Against Acting 'humanely' - Michael Goldberg

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 58 No. 3

Against Acting 'Humanely'by Michael Goldberg^*

I.

Who could possibly be against acting 'humanely'?¹

I, for one, am willing to be charged with such an offense, for the charge is too broad. What precisely does it mean to act 'humanely'? Name some cases of exemplary individuals acting 'humanely' to give some kind of context for the charge; furnish some case histories that depict specific human beings who stand as virtual metaphors of 'humanity at its best.' I maintain such narratives as these are indispensable if our talk of acting 'humanely' is to have any real content. They provide the various contexts within which we can see what acting 'humanely' might in practice look like, especially if it means that we should act in a way that shows 'humanity at its best.' As the old 'Ethics 101' example illustrates, even the Golden Rule needs explicit context: just try teaching it to a sadomasochist. That seemingly self-explanatory 'rule for righteousness' becomes a prescription for perversion.

Even so, I suspect that this attempt at defending my position is not likely to prove successful — and not merely because I have yet to set forth a fuller argument. For, on the surface, anyone against acting 'humanely' must ipso facto favor acting cruelly, even bestially, in short, 'inhumanely.' Yet my defense here is but the logical obverse of my prior one. Without some narrative context for speaking meaningfully of 'humanity at its best,' there can be no meaningful discourse of 'humanity at its worst,' that is, of acting 'inhumanely.'

I wager, however, that neither defense proffered will prove strong enough to overcome the objections to the argument I have put forth thus far, for argument is about more than logic alone. It is also about rhetoric, which is to say that argument is also about arguing, which is what lawyers do, after all. Lawyers not only try to win their arguments through the force of logic, but also through the power of words — and not just any words, but artfully persuasive ones. When I served as Special Consultant to the Georgia Supreme Court, my mandate was to respond to various justices' requests for my help in drafting their opinions in terms of logic and rhetoric. Logic required ensuring that one thing followed from another. But rhetoric required making sure the other justices, the Bar, the policymakers, and the public would see the way one thing followed from another as persuasive.

Plainly, talk of acting 'humanely' or, for that matter, of preserving 'human dignity,' figures in all sorts of arguments rhetorically. Usually, though, these ideas are taken as terms with meaning so self-evident that their mere utterance has the rhetorical force of 'Checkmate!' which necessarily means that one's opponent has no choice but to capitulate. Yet tellingly, many of our public policy disputes remain hotly contested² when it comes to issues of acting 'humanely' or of preserving 'human dignity.' Although the meaning of 'Checkmate!' is firmly grounded in the game of chess, with its precise definitions of what it means to play — and win — we have no comparably precise way of defining the meanings of acting 'humanely' or of preserving 'human dignity' because we have no definitive way of stating what it means to act, let alone succeed, 'as a human being.'

Nevertheless, we do possess what George Lak off and Mark Johnson have called "metaphorical thought" or "seeing one kind of thing in terms of another kind of thing."³ Metaphors of being human, I contend, only gain real content within the diverse contexts of the various stories that recount the varied experiences of different human beings. For ultimately, each of us is the author of a story, our own unique life story, as well as the heir to a larger story, our particular community's history.

When I took American history in seventh grade in Cincinnati, I had a teacher named Mr. Moore. One day, Mr. Moore said something that did not seem quite right to me, and so, I raised my hand and asked him a question about it. He glowered at me and said, "I don't need a Philadelphia lawyer in this class!" When I got home, I asked my father what Mr. Moore had meant. Angrily, my father explained that Mr. Moore was implying that I was a high-priced shyster paid to trip up other people with my nitpicking questions. Because of my view of myself at that extremely sensitive time in my own life story, Mr. Moore's 'Philadelphia lawyer' metaphor was very hurtful. But no matter how insensitive, his metaphor only made sense against the backdrop of a wider American communal story, one in which lawyers are often viewed, rightly or wrongly, with suspicion for their ubiquitous role in America's justice system and politics. By the way, I subsequently came to have a metaphorical way of my own for seeing Mr. Moore: dumbass⁴ — a metaphor drawn broadly, I suppose, from the unhappy stories of muleskinners.

Let me be clear. None of us is inextricably trapped in his or her own story. Just as we can each consciously act to change our life, we can each do so with our communal story. In religious terms, this is called 'conversion'; in secular terms, 'changing citizenship.' But in any case, without reference to some specific narrative context, there can be no real content to our talk of acting humanely,' or of preserving human dignity,' or of acting in accordance with 'humanity at its best.'

And yet, that is exactly how we tend to talk as we mechanically invoke these notions when it comes to such public policy issues as putting our condemned to death and putting our loved ones out of their misery. Lacking any narrative contexts and the metaphors they engender, our public policy disputes and legal arguments around these issues will be little more than mere cover talk,' at times intentionally meant to cover our deeds from others' sight, while at other times, unintentionally covering them even from our own, thus perniciously blinding us from seeing that we may not be acting in accordance with humanity at its best,' but at its worst.

II.

In February 2006, in Morales v. Hickman,⁵ United States District Court Judge Jeremy Fogel stayed the lethal injection execution of condemned California inmate, Michael Morales, requiring the presence of anesthesiologists to ensure that Morales's death be free of "excessive" pain, lest it violate the Eighth Amendment's ban on "cruel and unusual punishment."⁶ Nowhere perhaps is our cover talk meant to show us at our most humane more revealed for what it is than here: before we give somebody a lethal injection, let us make them as comfortable as possible, and, while we are at it, let us not forget to swab their arm with alcohol before we insert the needle so as to prevent infection.⁷

Virtually atop the precedents Judge Fogel cited for his first-of-a-kind ruling stood Gregg v. Georgia,⁸ which prohibits executions that "involve the unnecessary and wanton infliction of pain."⁹ Gregg, of course, represents only one in a long line of United States Supreme Court decisions interpreting the Eighth Amendment's Cruel and Unusual Punishment Clause'¹⁰ to mean that in the imposition of the death penalty, "the basic concept of human dignity" must be observed.¹¹ That principle, as Justice Brennan had opined earlier in Furman v. Geor-gia,¹² requires that any punishment the State imposes "must not be so severe as to be degrading to the dignity of human beings."¹³ The true significance of punishments that violate this principle, wrote the Justice, "is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity."¹⁴ As such, we must not treat humans — even vicious, mad-dog' murderers — as nonhumans. Because we and they are humans, we cannot — whether we like it or not — treat them brutally, that is, brutishly, despite the 'monstrosities' of their crimes. Our own humanity hinges on our acting 'humanely' toward them — even when we execute them.

Since the Enlightenment, in fact, the State has striven to develop ever more 'humane' ways of executing criminals. Revolutionary France implemented the guillotine¹⁵ as an execution device more humane' than that of the ancien regime, under whose penal system capital punishment by decapitation sometimes required several blows.¹⁶ Later, in 1890, electrocution gained favor over the then-prevalent mode of capital punishment, hanging, as a more humane' execution method.¹⁷

But in the 1980s, after several electric chair executions had gone awry, most infamously in Florida's notorious "Old Sparky," which repeatedly served up 'condemned flambe,' many states crowned execution by lethal injection as the new Miss Humanity.' Reports nevertheless persisted of the condemned experiencing suffering tantamount to torture. As a result, in June 2006, the United States Supreme Court in Hill v. McDonough¹⁸ ruled unanimously that death-row inmates could contest their lethal-injection death sentences.¹⁹ The Court's ruling opened the door for potential challenges by thousands of condemned prisoners, and consequently, executions have been stayed in California, Florida, Maryland, and Missouri while lower courts consider whether death by lethal injection causes excessive pain.²⁰ In sum, paradox persists: how do we act 'humanely' when we end another human life?

And yet, both prosecutors and death-penalty defense attorneys know how to solve the paradox, namely, by seeing it as no paradox at all, but as something else entirely. For both sides view the call to act humanely' not in the context of some storied account of humanity at its best' acting humanely' as it puts someone to death, but exclusively within the narrow framework of an argument opposing capital punishment altogether.²¹ Within that limited frame of reference, the call to act humanely' becomes nothing more than a rhetorical throwaway.

But, for...