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‘Guerrilla warfare,’ civil society and the death penalty

At Bloomberg View, Noah Feldman looks at Justice Samuel Alito’s complaint in this week’s lethal injection case that death penalty opponents have engaged in “guerrilla warfare” by persuading pharmaceutical companies to withhold sales of their drugs to states that will use them in executions.

According to his view, it’s fair to challenge the death penalty both in legislatures and in courts. What’s unjustified is to attack capital punishment obliquely, by going at the technicalities of its administration — what Justice Harry Blackmun at the end of his career famously called “the machinery of death.”
What makes that technique unfair? The guerrilla metaphor is instructive. Real armies, goes the theory, attack frontally on the battlefield. Calling the death penalty morally wrong and unconstitutional would count as a frontal assault. Guerrillas don’t fight that way. They frustrate conventional opponents by sneaking around. Sometimes they don’t wear uniforms. Sometimes they hide among civilians. In these ways they may violate the international laws of war — which are, of course, written by states that have conventional armies, not by guerrilla fighters.
According to Alito, what’s wrong with guerrilla attacks on the death penalty is that they frustrate the constitutional and political process, which should involve direct arguments. By implication, the legal and political debate should be meaningful and not obfuscated in a miasma of tactics.
Generally speaking, I think Alito is probably right about this. We do better constitutional law and politics when we actually debate our values and our preferences. We have a lot to gain from talking about controversial issues, and little to gain from dancing around them.

Feldman goes on to look at how the anti-abortion and gay rights movements have fought legal battles on the periphery, trying to chip away at the big question rather than persuade the court to come to their side in one fell swoop.

But I’m not sure these analogies hold. If you accept Alito’s guerrilla warfare comparison (and I think it’s way overwrought), the anti-abortion and gay rights examples — at least in the examples Feldman provides — are engaging in what you might call legal guerrilla warfare. Anti-abortion advocates are trying to make abortion de facto illegal by imposing so many restrictions that it becomes nearly impossible to obtain one, even though the procedure is still technically legal. It’s the same with Feldman’s characterization of the gay rights movement, although I’m not sure that’s still the case. The gay marriage cases we’re seeing today are pretty straightforward and big-picture.

What anti-death penalty forces did, however, was different. And it seems to me that what they did was actually more legitimate than entrusting such a profound decision about whether the state should be permitted to take lives to nine legal academics. They took the issue to the parties who have a direct stake in the issue. If a pharmaceutical company can be persuaded that its products shouldn’t be used in executions, they have every right to refuse to sell to states that will use the drugs for that purpose. That isn’t guerrilla warfare, it’s free-market democracy.

In fact, you could argue that this is a much healthier way of addressing contentious moral issues. Let’s go back to abortion rights, for example. I support abortion rights. And I’d much rather see anti-abortion groups try to minimize the number of abortions by promoting adoption, or organizing financial and emotional support for vulnerable pregnant women, than by going to the courts to demand blanket prohibitions. (In the real world, of course, they do both.) I also support gay marriage and gay rights, but I’m far more comfortable with publicly shaming a business like the New Mexico cake decorators who refuse to service gay weddings than forcing them to do so under the color of law. Civil society solutions aren’t perfect, but they’re usually (but not always) preferable to edicts.

Of course, capital punishment is about state killing. So at some point, a direct court ruling on its legitimacy would be inevitable. But I don’t see anything illegitimate or “guerrilla” about taking the moral case against the death penalty to the people and organizations who have a direct stake in how it will be carried out. The Supreme Court can rule that the death penalty is constitutional. Legislatures can vote to keep the death penalty legal. But neither can compel private actors to participate if their consciences dictate otherwise.

If drug companies decide that they don’t want their drug used in executions, that doesn’t mean states then get to resort to unconstitutional methods of execution. The Constitution isn’t conditioned on the good intentions of one faction or another. If the states can’t come up with an alternative that passes muster, they’ll have to stop executing people until they do.