If ever a man deserved the death penalty, it's Joseph C. Massino. The 61-year-old restaurant owner and family man -- and what a family it is -- was convicted in July of various crimes, including several murders, all of them connected to his line of work, which is running New York's Bonanno crime organization. For all of that, he faces spending the rest of his life in prison. But Massino is about to go on trial for yet another murder -- his eighth (or so) -- and for this one Attorney General John Ashcroft is demanding the death penalty. For once Ashcroft is right.
In fact, he is better than right. He is performing a public service of the sort that has eluded him in his time in office. By insisting that Massino die if convicted of the eighth murder, allegedly ordered in 1999, the attorney general has inadvertently illustrated what is so rotten and unfair about the death penalty itself. It turns out that Mafia bosses, no matter what they have done, are almost never executed for their crimes. More to the point -- my point, anyway -- Hispanic and African American gang leaders are granted no such immunity. About 130 of them, gang members or leaders, have faced the death penalty since 1988. The figure for Mafia members is a bit different: one.
Now, if life were a movie, Massino would turn to his consigliere and tell him to get to the politicians and journalists on the family's payroll so that they could have capital punishment abolished. That's not about to happen, not just because life is not a movie and the mob ain't what it used to be but because capital punishment has, like religion or the flag, inserted itself into the very core of American political life. Politicians are afraid to say what they really think about capital punishment -- or, worse, they sincerely endorse it, almost never citing the only reason that makes any sense at all: vengeance. All the rest -- closure, proportionality, finality and especially deterrence -- have been disproved, revealed as sloppy thinking or as junk science that cannot withstand examination. We are down to the ineffable -- a feeling -- and it will have to do.
Ashcroft's order to Massino's prosecutors is part of his herculean effort to spruce up the death penalty, to make it presentable by eliminating bias. It can't be done. The ultimate bias is identification -- the extent to which the jury can identify with the defendant. This, essentially, is what happened in the O.J. Simpson case, which is why he walked. It is what happens all the time when juries have to decide to take the lives of people like them. It is a lot easier if the defendant is caricatured as an animal -- fierce, merciless and beyond rehabilitation. That's easier to do with minority gang-bangers than with middle-aged mobsters who sometimes have an avuncular demeanor and a loving immediate family. Mostly, the death penalty is reserved for society's outcasts.
All over the world, the death penalty is on the way out, a vestige of a discredited way of thinking. You may assume I am referring to the biblical eye-for-an-eye injunction, but I am not. Instead, I mean the naive belief in science, in perfection, in a criminal justice system that works so flawlessly that the wrong person is never executed. The electric chair itself was the fruit of such thinking, a device that was supposed to kill painlessly and quickly. It did neither, which is why it is now rarely used. Still, we continue to yearn for assurance that only the guilty die at the hands of the state, recently enlisting DNA testing for that purpose. But DNA is not a factor in many killings -- drive-by shootings, for instance -- so mistakes can still happen. Without a doubt, they do.
In the incessant babble about values, capital punishment is seldom mentioned. But it is one, twice over. The first value is humility, an acknowledgment that mistakes are made and, after execution, cannot be rectified. The second is where history instructs and conservatives and liberals ought to agree: The power to take life is too awesome to be granted to government. This is where Ashcroft should make his farewell stand -- not, as he has, on making something better so that it can be so much worse.