Early last Tuesday morning, Maryland executed John Thanos. Sixteen years after we enacted our current death penalty law. More than 7,000 reported Maryland homicides later. After more than 135 state death penalty sentencing hearings, resulting in more than 57 death penalties. Thirty-three years after we executed Nathanial Lipscomb, the last person before Thanos.
This experience confirms the wisdom of leaving life-and-death decisions to an immortal and infallible decision-maker. Our death penalty pleases neither its advocates, who are frustrated by a seemingly endless appeals process, or its foes, who believe that process produces random, racially biased and arbitrary results.
It is apparent why we executed John Thanos. He committed atrocious crimes. He brutally stole the lives of three innocent teen-agers and sentenced their surviving families to lifetimes of heart-breaking memories. No secular system of justice can commute these dreadful sentences. And he taunted the supporters of capital punishment and frustrated its opponents by volunteering to be executed.
It would seem to be an open-and-shut case. But let's look at the costs of our homicide -- much more troubling costs than the estimated $400,000 it costs, from trial through final appeal, to execute a person.
By executing murderers, we make them celebrities. Our unintended message for those like Thanos who are mentally unbalanced is that homicide is a pathway to recognition. Thanos seemed perversely attracted, not repelled, by the death penalty.
We could have sentenced Thanos to civil death. A natural lifetime in harsh and secure isolation. A lifetime of anonymity. Just another prisoner doing hard time. For Thanos, that would have been the ultimate punishment.
In killing him, we reaffirmed that state-sponsored death denies the humanity of the executioner, as well as the executed. Throughout the macabre process, Thanos was the deranged principal. The state was his agent, a sleazy cartoon version of Dr. Jack Kevorkian.
Thanos had wanted to die for a long time. Upon arrest for the homicide for which he was executed, he expressed that hope. While awaiting trial, he swallowed 14 sharpened pencils, 15 spoons, his eyeglasses and a plastic toothbrush, sharpened at both ends. He had tried to commit suicide, or at least to hurt himself severely, on more than a dozen documented occasions before that. He tried to waive all appeals. He finally found a submissive agent to do what he could not successfully do himself.
Worse yet, to kill Thanos we first had to imitate him. To be legal, governmental killings must be carefully planned and carried out. So we wrote an execution manual and carefully followed it, illustrating precisely why our government, "the omnipresent teacher," should not kill. "For good or for ill," Justice Louis Brandeis wrote, "government teaches the whole people." When the state's best lawyers, judges and correctional officials kill by the book, in the most premeditated and deliberate way imaginable, it teaches us all the wrong lessons.
Which lessons? That "medical support staff," with a "syringe," an "angiocath," "IV bags," "needle locks," a "stethoscope" and other medical equipment, should assist the "Execution Commander" in the "Lethal Injection Chamber." That the "Officer in Charge or his designee," at the direction of the "Execution Commander," should "insert the angiocath into the vein[s] of the inmate's right and left arms" so that one member of the "Injection Team" can "administer the lethal dose" of drugs. That, after injection, a "medical doctor" should examine the person to pronounce him dead, before another official "remove [s] all clothing," "photograph[s] the body" and "turn[s] it over to the Death Watch Team, who shall place it in a body bag and handle disposition." That the "Assistant Commissioner for Treatment" -- the official ultimately responsible for providing humane care and treatment to Maryland's prisoners -- should give "pre-execution inoculation training to the Execution Team." This cookbook prescription for killing drains the moral content from capital punishment.
The state's ultimate lesson is particularly troubling when it executes those who are mentally ill. Despite his intelligence and destructively sardonic wit, Thanos was typical of death row inmates in this respect. His sentencing judge found that his "capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, a mental disorder or emotional disturbance."
Thanos' father had a history of mental illness and, according to evidence in his son's cases, regularly abused his son both physically and emotionally and raped his daughter in front of him. At age 15, Thanos was sent to an adult prison where he was raped and made a "prison girl." He was diagnosed as schizophrenic by age 17. His medical records contain references to "paranoid," "schizoid" and "mixed personalty" disorders, among others. On numerous occasions, doctors prescribed antipsychotic medications for him.
In other ways, Thanos was atypical of death row inmates. He was white. In Maryland, blacks who kill whites are sentenced disproportionately to death. Eleven of the 13 remaining death-row prisoners are black. Nine of the 11 killed whites. These data strongly suggest that race -- of both defendant and victim -- is a factor in determining who lives and dies.
It is undeniable that the unreviewable personal philosophies of prosecutors are a second arbitrary factor. Nine of Maryland's 13 death-row prisoners were convicted of homicides that occurred in Baltimore County. Seven of these nine are blacks who killed whites. What masquerades as a statewide law really is a series of local death penalty ordinances, a few of which are enforced, many of which are not.
These facts contradict our bedrock assumption that the uniformly applied rule of law, not personal bias or philosophy, governs in death cases.
The company we now keep is disquieting. With the execution of Thanos, we have aligned ourselves with the Southern states, in which 84 percent of the executions have occurred since the reinstatement of the death penalty in 1976. We have not learned from the Southern experience that executions, even repeated executions, do not deter others from committing homicide. We should not expect that our episodic, ritualistic killings will have a different result.
Yes, I probably would want the killer of a relative of mine executed. No, I probably would not care whether he was executed painlessly. But, although the views of victims are relevant, the whole community must decide what punishment should be imposed in its name. We do not rape rapists, steal from thieves or torture torturers, even though some victims might like us to do so.
The biggest casualty of the death penalty is public safety. We have a short attention span and limited criminal justice resources. The death penalty monopolizes both, making it much more difficult to prevent and remediate the violence against children, lack of education, substance abuse, unemployment and resulting despair that incubate homicide. These conditions produced most of this nation's death row inmates. They produced John Thanos. They will produce many, many more like him unless, with the same intensity that we reserve for the divisive debate on capital punishment, we undertake the much more difficult task of protecting children who are at risk of being killed or of learning to become killers.
Imagine with me that the state had taken a fraction of the apparently unlimited resources that it used to kill Thanos -- its best lawyers working overtime, judges in several courts, a psychiatrist, a psychologist, the leadership of its correctional system, chaplains and medical experts -- and used them to protect a little boy named John. Would it have needed an "Execution Commander" four decades later? Might three young adults be alive and with their families?
We are so angry that we could kill. We forget that is when we are most undefended. The execution of John Thanos is a fitting occasion to say that one execution over 33 years is one more than we can afford if we are serious about preventing homicide rather than pandering to public fear.
Michael Millemann is professor of law at the University of Maryland.