In the matter of Gary Mark Gilmore, we note the strange behavior, as so often is the case, of the American Civil Liberties Union, which has entered the case in opposition to Gilmore’s plea to the state of Utah to get on with its capital sentence.
The reasoning of the ACLU is roughly as follows: Capital punishment is evil. Therefore, if you cannot persuade a state to repeal its capital-punishment law, and if you cannot persuade the Supreme Court to declare such a law, if passed by a state, unconstitutional: then use whatever devices you can to stand in the way of the execution of such a law. Never mind that the condemned man asks the state to proceed. All that man is doing is saying that he would rather be shot than live a lifetime in prison. His wish should not prevail, for the simple reason that an individual’s opting for an end the state ought never to have authorized does not have the effect of baptizing that end. If – let us say – a prisoner offered to permit his hands to be amputated, preferring that punishment over a ten-year sentence for theft, the state ought not to comply with the prisoner’s choice. That which is barbaric remains so irrespective of an individual’s preferences.
The logic, so far as it goes, is good. Although it is at odds with the overarching commitment of the ACLU to the notion of sovereignty over one’s own body. Let us examine one or two variations of the argument:
1. Does an individual have the right to submit to sadistic treatment? To judge from the flotsam that silts up in the magazine racks, there is a considerable appetite for this sort of thing. Let us hypothesize an off-Broadway show, featuring an S/M production in which the heroine is flailed-real whips, real woman, real blood-for the delectation of the depraved. One assumes that the ACLU would defend the right of the producers to get on with it, trotting out the argument that no one has the right to interfere with the means by which others take their pleasure. The opposing argument is that the community has the right first to define, then to suppress, depravity. Moreover, the community legitimately concerns itself over the coarsening effect of depravity.
The condemned man is not free to mull over the known means of extinguishing human life, and then express his preference.
2. Does the individual’s right over his own body extend to suicide? Most states have laws against suicide, notwithstanding that of all unenforceable laws, this is probably the most conspicuously unenforceable. Still, the policeman who at great risk to himself succeeds in aborting a suicide by climbing up to the window of the skyscraper in which the woman hovers, and grabbing her before she jumps, more often than not aborts an impulse permanently. The figures show that the inclination to suicide is more often than not permanently choked off, if only the suicide is prevented: Moreover, the theological argument is profoundly relevant. That which is vouchsafed to the human being by providence, he must not dispossess himself of. It is the right to life. Gilmore has greatly confused matters by attempting suicide. Strangely, there are few voices to be heard saying that the prison authorities were wrong in using a stomach pump to revive Gilmore. No doubt the judiciary in Utah would have taken quiet satisfaction if Gilmore, by successfully ending his own life, had relieved the state of the necessity of coping with the difficult questions he has raised.
3. Assuming that there were not capital punishment, what would be the position of the ACLU toward a prisoner who, having been sentenced to life in jail, presented himself before the authorities and asked for drugs sufficient to end his own life? Here the state would not be executing the prisoner, merely making available to the prisoner the means by which the prisoner could legislate an alternative for himself. Or are there people around who believe that the state should be permitted to prescribe the exact nature of the punishment? We saw that impulse at work in Nuremberg when Hermann Goering managed to swallow poison on the eve of his scheduled hanging. (The memorable lead on United Press Radio on that occasion was: “Hermann Goering cheated death today by committing suicide.”) There was general consternation, stomach pumps working overtime, because it was desired that Goering undergo the ritual of execution. The condemned man is not free to mull over the known means of extinguishing human life, and then express his preference.
The arguments are complex, and Gilmore, perhaps inadvertently, has confronted the community with them by his bizarre request. In theatrical terms, after ten years without capital punishment, his request is something of a bridge between total abstinence and systematic resumption of capital punishment. Moreover, he has made it plain for all to see that capital punishment is cruel and unusual insofar as it is eccentrically meted out. The state has the right to take life, when the right to life is forfeited. The torture is the result of indecision.
— William F. Buckley Jr. was the founder and editor of National Review.