On a recent Friday evening, I went down to the IFC to see Werner Herzog’s new film, Into the Abyss. It’s a genre film—the death penalty documentary—and its cloying subtitled, A Tale of Death, A Tale of Life, suggests it might fall into the easy cliches of that genre. It does in some ways, but those—one victim’s brother, a criminal himself, crying at a picnic table his dead sibling smiles from the living-room portraits he brought to show the camera; the subplot of the pregnant prison-fetishist wife—might be inescapable. The facts of death row, of life sentences, produce consistent outcomes—a lifetime in prison aside, longer or shorter depending on what number the prosecutorial roulette wheel settles on.
In short, the cliches can be forgiven, and all the more so because Herzog makes what might be the most persuasive case against the death penalty the genre’s yet produced. Into the Abyss details a triple homicide committed to facilitate the theft, by two teenagers, of a car from a gated community in rural Texas. The thieves-turned-murderers are Michael Perry and Jason Burkett. Each alleges the other was the trigger man. The facts of the murders are important. I’ll leave them to be told by the movie, which is worth seeing, because ultimately—and unlike most examples of the genre—they aren’t what carry the argument in Into the Abyss.
If we lived in a world where moral arguments carried much weight, it would be simple enough to say that the government of a civilized country ought not to take lives intentionally outside the context of war. In that world, the prudential arguments death-penalty proponents push would fall on deaf ears. Like torture, murder is simply something the American government shouldn’t be involved in. It’s beside the point how effective murder is. It degrades who we are as a people, and it shouldn’t, under any circumstances, be a tool available to the government. We do not live in such a world. So, if we want the right outcome, we have to turn to other arguments.
One argument is that we live in a world of error. Everybody makes mistakes. Prosecutors make mistakes. Defense attorneys make mistakes. Police and forensic scientists make mistakes. Judges and juries make mistakes. Another is that we live in a world of imperfect information. DNA evidence didn’t exist until fairly recently. A lot of outdated pseudo-science and voodoo still goes into the official evaluation of certain kinds of evidence. (The execution of Cameron Todd Willingham—the subject of an excellent piece by David Grann in the New Yorker and of a documentary I’m told is excellent, Incendiary: The Willingham Case—is one particularly stark example.)
Both are good arguments. But the answer, from the perspective of the death-penalty proponent, is simple. Be more careful. Let more time pass between conviction and execution to let new evidence come to light, to let new technologies develop.
The argument Herzog’s film makes is less open to riposte. Herzog’s subjects are not innocent. Herzog doesn’t believe they’re innocent—he tells Perry, through jailhouse plexiglass, something to the effect of, “I don’t have to like you. But I think it’s wrong of the government to put you to death”—and the viewer doesn’t come to believe they’re innocent. Herzog addresses the problem head on. These are men who, a decade ago, committed brutal murders. It’s not clear who pulled the trigger. That doesn’t matter. They’re both guilty of the same crime regardless. Their culpability is the same and not in question. These are not men the viewer feels have been wrongly convicted or wrongly imprisoned. They are not men the viewer feels sympathy for, except in some abstract sociological way or some raw emotional way. They are terrible men, men who are where they belong.
They are not men set to meet the same fate. One—Michael Perry—is, as we meet him at the start of the film, scheduled to be strapped to a crucifix-like gurney and poisoned intravenously. The other—Jason Burkett—will die, too, but only in the sense that we all will die. In the sentencing phase of his trial, Burkett’s deadbeat, lifelong prisoner of a father pleaded with the jury, through tears and sobs, not to recommend the killing of his son. Perry was not so lucky. Here are two men convicted of exactly the same crime. One will be put to death, and the other will not.
There lies the key argument against the death penalty. Two people, convicted of the same crime, face diametrically opposed outcomes. It’s a fact of the jury system. Irrelevant factors like the presence or absence a crying father can push fate one way or the other. In other cases, prosecutors do. A prosecutor decides to let one defendant cut a deal—testify and the prosecutor will only seek a life sentence. The other doesn’t cut his deal quickly enough. He dies. Two people guilty of the same crime in two adjoining counties. The District Attorney in one is up for re-election, not so in the other. That might be the determining factor. It’s contrary to the fundamental purpose of a criminal justice system to leave life or death up to the fickleness we have to accept if we want a jury system—and we do or we would have amended the Constitution—and if we want to let states elect their prosecutors, which we do or we would have prohibited it. It’s probably also contrary to the Eighth Amendment. But that’s a different argument. That irrevocable punishment can be grounded in caprice cannot be consistent with the aims of any legal system—consistency (primarily an economic concern) and fairness (primarily a human concern). We have a legal system for prosecuting crimes so we don’t have to rely on vigilantism. What we’ve created is institutionalized vigilantism.
Herzog found the perfect subjects to make this argument. Two people, clearly guilty of the same crime, come out the other end looking at opposite fates. By making his death penalty documentary about two clearly guilty, reprehensible men—avoiding the ostensibly remediable wrongful conviction and bad evidence issues—Herzog has cut to the heart of the matter. That’s not to say that Herzog’s film portrays Perry and Burkett as means to a rhetorical end. He’s too Kantian to look at his subjects that way. He lets them speak. He lets their acquaintances, friends, and relatives speak. He lets the victims’ families speak. He lets a death row guard and a death house chaplain speak. It’s a sensitive portrayal of these two men, of what they did and, to a certain extent, of the place they did it. Again, the facts matter. What’s remarkable about it is precisely that. In Into the Abyss, Herzog has made a rare thing—a forceful conceptual argument that replaces rhetoric with human fact.