(Copyright 1986 by the Harvard Law Review Association)
AGAINST THE AMERICAN SYSTEM OF CAPITAL PUNISHMENT
By Jack Greenberg
Professor of Law, Columbia University. A.B. 1945, LL.B. 1948, LL.D.
1984 Columbia University. I am particularly grateful to my colleague Henry P.
Monagahan for much useful criticism and many helpful suggestions. My
colleagues Peter L. Strauss, Harold Edgar, and Don Verrilli also gave
thoughtful and good advice. The arguments offered here, however, are my own
and I bear full responsibility for them.
Over and over, proponents of the death penalty insist that it is right
and useful. In reply, abolitionists argue that it is morally flawed and cite
studies to demonstrate its failure to deter. Were the subject not so grim and
compelling, the exchanges would, by now, be tiresome.
Yet all too frequently, the debate has been off the mark. Death penalty
proponents have assumed a system of capital punishment that simply does not
exist: a system in which the penalty is inflicted on the most reprehensible
criminals and meted out frequently enough both to deter and to perform the
moral and utilitarian function ascribed to retribution. Explicitly or
implicitly, they assume a system in which certainly the worst criminals,
Charles Manson or a putative killer of one's parent or child, for example, are
executed in an even-handed manner. But this idealized system is not
the American system of capital punishment. Because of the goals that our
criminal justice system must satisfy - deterring crime, punishing the guilty,
acquitting the innocent, avoiding needless cruelty, treating citizens equally,
and prohibiting oppression by the state - America simply does not have the kind
of capital punishment system contemplated by death penalty partisans.
Indeed, the reality of American capital punishment is quite to the contrary.
Since at least 1967, the death penalty has been inflicted only rarely,
erratically, and often upon the least odious killers, while many of the most
heinous criminals have escaped execution. Moreover, it has been employed
almost exclusively in a few formerly slave-holding states, and there it has
been used almost exclusively against killers of whites, not blacks, and never
against white killers of blacks. This is the American system of capital
punishment. It is this system, not some idealized one, that must be defended
in any national debate on the death penalty. I submit that this system is
deeply incompatible with the proclaimed objectives of death penalty
I. THE AMERICAN SYSTEM OF CAPITAL PUNISHMENT
Here is how America's system of capital punishment really works today. Since
1967, the year in which the courts first began to grapple in earnest with death
penalty issues, the death penalty has been frequently imposed but rarely
enforced. Between 1967 and 1980, death sentences or convictions were reversed
for 1899 of the 2402 people on death row, a reversal rate of nearly eighty
percent. (1) These reversals reflected, among other factors, a 1968 Supreme
Court decision dealing with how juries should be chosen in capital cases, (2) a
cause they were imposed arbitrary and "freakishly," (3) and a 1976 decision
holding mandatory death sentences unconstitutional. (4) Many death sentences
were also invalidated on a wide variety of common-place state-law grounds, such
as hearsay rule violations or improper prosecutorial argument.
This judicial tendency to invalidate death penalties proved resistant to
change. After 1972, in response to Supreme Court decisions, many states
adopted new death penalty laws, and judges developed a clearer idea of the
requirements that the Court had begun to enunciate a few years earlier. By
1979, the efforts of state legislatures finally paid off when John Spenkelink
(5) became the first person involuntarily (6) executed since 1967. (7)
Nevertheless, from 1972 to 1980, the death penalty invalidation rate declined
to "only" sixty percent. (8) In contrast, ordinary noncapital convictions and
sentences were almost invariably upheld. (9)
Today, the death row population has grown to more that 1600 convicts. About
300 prisoners per year join this group, while about 100 per year leave death
row, mainly by reason of judicial invalidations but also by execution and by
death from other causes. (10) Following Spenkelink's execution, some states
began to put some of these convicted murderers to death. Five persons were
executed involuntarily in 1983, twenty-one in 1984, and fourteen in 1985. (11)
Nevertheless, the number of actual executions seems to have reached a plateau.
The average number of executions in the United States hovers at about twenty
per year; as of March 1, only one person has been executed in 1986. (12) Yet
even if this number doubled, or increased fivefold, executions would not be
numerous either in proportion to the nation's homicides (approximately 19,000
per year) (13) or to its death row population (over 1600). (14)
One reason for the small number of executions is that the courts continue to
upset capital convictions at an extraordinarily high rate, albeit not so high
as earlier. Between January 1, 1982 and October 1, 1985, state supreme courts
invalidated thirty-five percent of all capital judgments. State post-appellate
process undid a few more. The federal district and appeals courts overturned
another ten percent, and last Term the Supreme Court reversed three of the four
capital sentences it reviewed. Altogether, about forty-five percent of capital
judgments which were reviewed during this period were set aside by one court or
another. (15) One index of the vitality of litigation to reverse executions is
that while legal attacks on capital punishment began as a coordinated effort by
civil rights lawyers, they now come from a variety of segments of the bar.
States not only execute convicted killers rarely, but they do so erratically.
Spenkelink's execution, the nation's first involuntary execution since 1967,
did not argur well for new systems of guided discretion designed to produce
evenhanded capital justice in which only the worst murderers would be executed.
Spenkelink was a drifter who killed a traveling companion who had sexually
abused him. The Assistant Attorney General of Florida in charge of capital
cases described him as "probably the least obnoxious individual on death row in
terms of the crime he committed." (17)
The current round of invalidations highlights the erratic imposition of the
death penalty. These invalidations have been based largely on grounds
unrelated to the heinousness of the crime or the reprehensibility of the
criminal. (18) Thus, the most abhorrent perpetrators of the most execrable
crimes have escaped the penalty on grounds wholly unrelated to moral desert -
for example, because defense counsel, the prosecutor, or the judge acted
ineffectively or improperly on some matter of evidence. By contrast, criminals
far less detestable by any rational moral standard - like Spenkelink, "the
least obnoxious individual on death row" - have gone to their deaths because
their trials "went well." (19) Of course, when errors occur in securing a
death penalty, the sentence should be invalidated, particularly because "there
is a significant constitutional difference between the death penalty and lesser
punishments." (20) The corollary of this imperative is that the current system
of capital punishment violates a central tenet of capital justice -that the
most reprehensible criminals deserve execution and others deserve lesser
It is troubling as well that the current level of executions has been attained
only by using expedited procedures that undermine confidence in the fairness of
the death penalty process. Recent executions have occurred during a period in
which some federal judges, frustrated with the slow pace of capital justice,
have taken extraordinary measures to expedite capital cases in federal courts.
For example, the Fifth Circuit has quickened habeas corpus appeals in capital
cases by accelerating the dates of arguments and greatly compressing the time
for briefing cases. (21) Increasingly, the Supreme Court has encourage this
hurry-up justice. The Court has not only denied stay applications, (22) but it
has also vacated stays entered by lower courts (23) in cases in which stays
would have been routine in earlier times. (24) In sum, the recent invalidation
rate seems unlikely to change significantly, thereby perpetuating the current
system of erratic and haphazard executions.
Of course, one major difference exists between the period 1982 to 1985 and
earlier years: increasingly, the death penalty has been concentrated
geographically, not applied evenly across the United States. In the most
recent period, there were forty-three involuntary executions. Quite
strikingly, all occurred in the states of the Old Confederacy. Thirty-four of
the forty-three states, and more that a quarter were in a single state,
Florida, with thirteen. (26) In all but four cases, the defendants killed
white persons. (27) In no case was a white executed for killing a black
Why are there so few executions? Convictions and sentences are reversed,
cases move slowly, and states devote relatively meager resources to pursuing
actual executions. Even Florida, which above all other states has
shown that it can execute almost any death row inmate it wants to, has killed
only 13 of 221 inmates since 1979, 12 since 1982. (It now has 233 convicts on
death row.) (29) Outside the former slave-holding states, more than half the
states are now abolitionist either de jure (fourteen states) or de facto (five
state have no one on death row). (30) Moreover, past experience suggests that
the execution level will not go very high. Before the 1967-76 moratorium, the
number of executions exceeded fifty only once after 1957 - fifty-six in 1960.
(31) At the time there were fewer abolitionist states and more capital crimes.
This experience suggests that executions will not deplete the death row
The limited number of actual executions seems to me to reflect the very deep
ambivalence that Americans feel about capital punishment. We are the only
nation of the Western democratic world that has not abolished capital
punishment. (32) By contrast, countries with whose dominant value systems were
ordinarily disagree, like the Soviet Union, China, Iran, and South Africa,
execute prisoners in great numbers. (33)
II. THE FAILURES OF CAPITAL PUNISHMENT
We have a system of capital punishment that results in infrequent, random, and
erratic executions, one that is structured to inflict death neither on those
who have committed the worst offenses nor on defendants of the worst character.
This is the "system" - if that is the right descriptive term - of capital
punishment that must be defended by death penalty proponents. This
system may not be justified by positing a particularly gregarious killer like
Charles Manson. Or commitment to the rule of law means that we need an
acceptable general system of capital justice if we are to have one at
all. However, the real American system of capital punishment clearly fails
when measured against the most common justifications for the infliction of
punishment, deterrence, and retribution.
If capital punishment can be a deterrent greater than life imprisonment at
all, the American system is at best a feeble one. Studies by Thorsten Sellin
(34) showed no demonstrable deterrent effect of capital punishment even during
its heyday. Today's death penalty, which is far less frequently used,
geographically localized, and biased according to the race of the victim,
cannot possibly upset that conclusion. The forty-three persons who were
involuntarily executed from 1982 to 1985 were among a death row population of
more that 1600 condemned to execution out of about 20,000 who committed
non-negligent homicides per year. While forty-three percent of the victims
were black, (35) the death penalty is so administered that it overwhelmingly
condemns and executes those who have killed whites.
Very little reason exists to believe that the present capital punishment
system deters the conduct of others any more effectively than live
imprisonment. (36) Potential killers who rationally weight the odds of being
killed themselves must conclude that the danger is nonexistent in most parts of
the country and that in the South the danger is slight, particularly if the
proposed victim is black. Moreover, the paradigm of this kind of murderer, the
contract killer, is almost by definition a person who take his chances like
the soldier of fortune he is. (37)
But most killers do not engage in anything like a cost-benefit analysis. They
are impulsive, and they kill impulsively. If capital punishment is to deter
them, it can do so only indirectly: by impression on potential killers a
standard of right and wrong, a moral authority, and influence on their
superegos that, notwithstanding mental disorder, would inhibit homicide. This
conception of general deterrence seems deeply flawed because it rests upon a
quite implausible conception of how this killer population internalizes social
norms Although no mentally disturbed enough to sustain insanity as a defense,
they are often highly disturbed, of low intelligence, and addicted to drugs or
alcohol. In any even, the message, if any, that the real American system of
capital punishment sends to the psyches of would-be-killers is quite limited:
you may in a rare case be executed if you murder in the deepest South and kill
a white person. (38)
The consequences of the real American system of capital justice are no more
favorable as far as retribution is concerned. Retributive theories of criminal
punishment draw support from several different moral theories that cannot be
adequately elaborated here. While some of the grounds of retribution argument
resemble the conscience-building argument underlying general deterrence theory,
(39) all retribution theories insist that seeking retribution constitutes a
morally permissible use of governmental power. To retribution theorists, the
death penalty makes a moral point: it holds up as an example worthy of the
most sever condemnation one who has committed the most opprobrious crime.
As with may controversies over moral issues, these purely moral arguments may
appear to end any real possibility for further discussion. For those who
believe in them, they persuade, just as the moral counter-arguments persuade
abolitionists. But discussion should not end at this point. Those who claim a
moral justification for capital punishment must reconcile that belief with
other moral considerations. To my mind, the moral force of any retribution
argument is racially undercut by the hard facts of the actual American system
of capital punishment. This system violates fundamental norms because it is
haphazard, and because it is regionally and racially biased. To these moral
flaws, I would add another: the minuscule number of executions nowadays cannot
achieve the grand moral aims that are presupposed by a serious societal
commitment to retribution.
Some retribution proponents argue that is the pronouncement of several hundred
death sentences followed by lengthy life imprisonment, not the actual
imposition of a few executions, that satisfies, the public's demand for
retribution. Of course, the public has not said that it wants the death
penalty as it exists - widely applicable but not infrequently used. Nor, to
the best of my knowledge, is there any solid empirical basis for such a claim.
Like other statues, death penalty laws are of general applicability, to be
employed according to their terms. (40) Nothing in their language or
legislative history authorizes the erratic, occasional, racially biased use of
these laws. But my objections to this argument go much deeper. I find morally
objectionable a system of may pronounced death sentences but few actual
executions, a system in which race and region are the only significant variable
in determining who actually dies. My objection is not grounded in a theory
that posits any special moral rights for the death row populations. The
decisive point is my understanding of the basic moral aspirations of American
civilization, particularly its deep commitment to the rule of law. I cannot
reconcile an erratic, racially and regionally biased system of executions with
my understanding of the core values of our legal order.
Death penalty proponents may respond to the argument by saying that if there
is not enough capital punishment, there should be more. If only killers of
whites are being executed, then killers of blacks should be killed too; and if
many sentences are being reversed, standards of review should be relaxed. (41)
In the meantime, they might urge, the death penalty should go on. But this
argument is unavailing, because it seeks to change the terms to the debate in a
fundamental way. It seeks to substitute an imaginary system for the real
American system of capital punishment. If there were a different kind of
system of death penalty administration in this country, or even a reasonable
possibility that one might emerge, we could debate its implications. But any
current debate over the death penalty cannot ignore the deep moral deficiencies
of the present system. (42)
III. THE CONSTITUTION AND THE DEATH PENALTY
This debate about whether we should have a death penalty is a matter on which
the Supreme Court is unlikely to have the last say now or in the near future.
Yet, the Court's decisions have some relevance. The grounds that the Court has
employed in striking down various forms of the death penalty resemble the
arguments I have made. Freakishness was a ground for invalidating the death
penalty as it was administered throughout the country in 1972. (43) Rarity of
use contributed to invalidation of the death penalty for rape (44) and felony
murder, (45) and to invalidation of the mandatory death penalty. (46) That
constitutional law reflects moral concerns should not be strange: concepts of
cruel and unusual punishment, due process, and equal protection express
contemporary standards of decency.
Moreover, the whole development of the fourteenth amendment points to the
existence of certain basic standards of decency and fairness from which no
state or region can claim exemption. One such value is, of course, the
racially neutral administration of justice. No one disputes that one of the
fourteenth amendment's central designs was to secure the evenhanded
administration of justice in the southern state courts and that the persistent
failure to achieve that goal has been one of America's greatest tragedies. We
cannot be blind to the fact that actual executions have taken place primarily
in the South and in a least a racially suspect manner. In light of our
constitutional history, the race-specific aspects of the death penalty in the
South are profoundly unsettling.
Given the situation as I have described it, and as I believe it will continue
so long as we have capital punishment, on could argue that the death penalty
should be declared unconstitutional in all its forms. But the Court is
unlikely to take that step soon. Only ten years have passed since the type of
death statue now in use was upheld, and some states have had such laws for an
even shorter period. Thirty-seven states have passed laws showing they want
some sort of death penalty. Public opinion polls show that most Americans want
capital punishment in some form. Having only recently invalidated on
application of the death penalty in Furman v. Georgia in 1972, the
Court is unlikely soon to deal with the concept wholesale again. But, if the
way capital punishment works does not change materially. I think that at some
point the court will declare the overall system to be cruel and unusual. If
this prediction is correct - and it is at least arguably so - an additional
moral factor enters the debate. Is it right to kill death row inmates during
this period of experimentation? There is, of course, an element of
bootstrapping to my argument: exercising further restraint in killing
death-sentenced convicts reinforces arguments of freakishness and rarity of
application. But unless one can assure a full and steady stream of executions,
sufficient to do the jobs the death penalty proponents claim that it can do,
there is further reason to kill no one at all.
The authors of these Commentaries have not seen drafts of each other's pieces.
The commentary format is not meant to be a debate, but rather is meant to
present different perspectives on current issues of public importance.
1 These statistics and the pre-1981 experience with the death penalty are
reviewed more extensively in Greenberg, Capital Punishment as a System,
91 Yale L.J. 908, 917-18 (1982).
2 See Witherspoon v. Illinois, 391 U.S. 510 (1968). On the erosion
of Witherspoon, see Wainwright v. Witt, 105 S. Ct. 844 (1985), and the
perceptive comment in The Supreme Court, 1984 Term, 99 Harv. L. Rev.
3 Furman v. Georgia, 408 U. S. 238, 293 (1972) (Brennan, J. concurring).
4 See Woodson v. North Carolina, 428 U.S. 280 (1976).
5. See Spinkellink v. State, 313 So. 2d 666 (Fla. 1975) cert.
denied, 428 U.S. 911 (1976). Spenkelink's name was misspelled by many of
he courts that considered his case. See Spinkellink v. Wainwright, 578
F. 2d 582, 582 n.1 (5th Cir. 1978); Greenberg, supra note 1, at 913 n.
6 I call execution "involuntary" if the defendant has contested actual
implementations of the death penalty. Conversely, a "voluntary" execution is
one in which the defendant at some point has voluntarily ceased efforts to
7 This statistic was derived from NAACP Legal Defense and Education Fund,
Death Row, U.S.A. 4 (1986) and Greenberg, note 1 above, at 913. Other
statistics set forth in this article, including the number and location of
death-sentenced prisoner, where they have been executed, and their race and the
race of their victims have been obtained for the Death Row U.S.A. data bank (on
file at the NAACP Legal Defense and Educational Fund in New York), which was
computerized in 1984-1985. Death Row U.S.A is frequently used as an
authoritative source by courts, see, e.g., Godfrey v. Georgia, 446 U.S.
420, 439 nn. 7 & 8 (1980); the media, see e.g., U.S. News &
World Rep., May 11, 1981, at 72; and scholars, see e.g., Gillers,
Deciding Who Dies, 129 U. PA. L. Rev. I, 2 n,2 (1980).
8 See Greenberg, supra note 1 at 918.
9 For example, in the federal court system during the year ending June 30,
1980, 28598 defendants were convicted while only 4405 convicted defendants
filed appeals. Of these appeals, only 6.5% prevailed. Thus, while not all
defendants appealing were convicted during the year surveyed, one can estimate
that about 1% of all criminal convictions handed down during that year (290 out
of 28,598) were upset on appeal. See Administrative Office of the U.S.
Courts, 1980 Annual Report of the Director 2 (table 2), 51 (table 10), 97.
State court experience is similar. See Greenberg, supra note
1, at 918 & n.65.
10 See NAACP Legal Defense and Education Fund, supra note 7,
at 1; Death Row U.S.A. data bank, supra note 7.
11 See NAACP Legal Defense and Educational Fund, supra note 7,
at 4. Between January 17,1977 and March 1, 1986, there were eight voluntary
executions. Five were in states outside the South. At least seven were of
killers of whites; in the eighth case, the race of the victim was unknown.
12 See id.
13 See Federal Bureau of Investigation, U.S.. Dept. of Justice,
Uniform Crime Reports, Crime in the United States 1984, at 6 (1985) (18,692
murders in 1984).
14 See NAACP Legal Defense and Educational Fund, supra note
7, at 1.
15 These statistics on reversal have been derived from the Death Row U.S. A.
data bank, note 7 above. While 45% of judgments reviewed during this period
were reversed, the cases involved sentences which in some instances have been
imposed prior to January 1, 1982.
16 The NAACP Legal Defense and Educational Fund, of which I was Director
Counsel until 1984 and which commenced the attacks on capital punishment, has
participated in virtually none of the state cases that invalidated death
penalties and in very few of the recent federal cases. The American Bar
Association Board of Governors, however, approved an effort to obtain %150,000
for a post-conviction death penalty representation project in December 1983,
and the Florida legislature enacted a law to furnish counsel on post-conviction
death penalty proceedings, see Fla. Stat. Ann. (section symbol
needed) 27.7001 (West Supp. 1986).
17 Adler, Florida's Zealous Prosecutors: Death Specialists, Am.
Law., Sept. 1981, at 36.
18 See Death Row U.S.A. data bank, supra note 7 (reporting
grounds of reversal). Because most invalidations occur in sate courts,
proposed legislation that would make federal habeas corpus more difficult for
prisoners see e.g., S. 238, 99th Cong., 1st Sess., 131 Cong. Rec.
S481-82 (daily ed. Jan. 22, 1985), would only have a marginal effect.
19 Because of the invalidations rest on a wide variety of grounds, not single
doctrinal shift, or even a small number of shifts, is likely to result in a
lower reversal rate.
20 Beck v. Alabama, 337 U.S. 625, 637 (1980).
21 See Barefoot v. Estelle, 463 U.S. 880, 886-92 (1983).
22 See Dobbert v. Wainwright, 105 S. Ct. 34 (1984) (6-3 decision)
23 See Wainwright v. Adams, 104 S. Ct. 2138 (1984) (5-4 decision)
Woodard v. Hutchins, 464 U.S. 377 (1984) (5-4 decision) (per curiam).
24 Cf. Marshall, Remarks on the Death Penalty Made at the Judicial
Conference of the Second Circuit, 86 Colum. L. Rev. I, 6-7 (1986)
(observing that expedited procedures deny defendants the ability to present
their claims property); Marshall Assails Death Penalty Plea Process,
N.Y. Times, Sept. 7, 1985, at A24, col. 1.
25 See NAACP Legal Defense and Educational Fund, supra note
7, at 4.
26 See id. There were eight in Texas, 7 in Louisiana, and 6 in
Georgia. The remainder were in Virginia, 3; North Carolina and South Carolina,
2; and Alabama and Mississippi, 1. See id.
27 See id.
28 See id. The race-of-victim factor is examined in detail in Gross,
Race and Death: The Judicial Evaluation of Evidence of Discrimination in
Capital Sentencing, 18 U.C.D. L. Rev. 1275 (1985). Killers of whites are
clearly sentenced to death more frequently than killers of blacks. See
id. at 1318-19. The legal significance of the discrepancy is, however,
under consideration by the Supreme Court and therefore not settled. See
McCleskey v. Kemp, 753 F. 2d 877 (11th Cir. 1985) (en banc), petition for
cert. filed, (U.S. May 28, 1985) (No. 84-6811). The principal issues are
whether it is necessary to demonstrate that the discrepancy is a consequence of
a pattern of intentional discrimination, whether it is necessary to demonstrate
an intent to discriminate in the particular case, and how large a discrepancy
must be shown to constitute a violation of equal protection and cruel and
unusual punishment clauses.
29 See NAACP Legal Defense and Educational Fund, supra note
7, at 8.
30 West Virginia is the only southern state that is abolitionist. See
id. at 1.
31 See Bedau, Background and Developments, in the Death
Penalty in America 3, 25 (H. Bedau 3d ed. 1982). There were 21 executions in
1962 and one in 1966. See id.
32 See Greenberg, supra note 1, at 925. The European
Convention of Human Rights has been amended to prohibit the death penalty in
peace-time. See Protocol No. 6 to the Convention for the Protection of
Human Rights and Fundamental Freedoms Concerning the Abolition of the Death
Penalty, Apr. 28, 1983, Council of Europe, 22 I.L.M. 539. The consequence of
the amendment is that parties to the treaty who ratify may not reinstate the
death penalty without repudiating the entire treaty, a move that would have
undesirable political consequences.
33 See Greenberg, supra note 1, at 925; When Peking Fights
Crime, News Is on the Wall, N.Y. Times, Jan. 28, 1986 at A2, col. 3.
34 Sellins' studies of deterrence are reviewed in Kelin, Frost &
Filatove, The Deterrent Effect of Capital Punishment: An Assessment of the
Evidence, in The Death Penalty in America, supra note 31, at 138,
139-40. The work of Isaac Ehrlich, who arrive at contrary conclusions, is
reviewed in the same essay. See id. at 140-44. The authors concluded
that Ehrlich's findings are seriously flawed and not persuasive. See id.
35 See Bedau, Volume and Rate of Murder, in the Death Penalty
in America, supra note 31, at 39, 43.
36 In the sense of specific deterrence or incapacitation, of course, the
forty-three who were put to death indeed have been deterred. But those serving
life sentences or terms of years, of course, occasionally kill. That fact
would not be accepted as grounds for having sentenced them to death in lieu of
the original prison term. Recidivism by convicted murders and killings by
prisoners generally are discussed in Bedau, Recidivism, Parole, and
Deterrence in The Death Penalty in America, supra note 31, at
173, and Wolfson, The Deterrent Effect of the Death Penalty Upon Prison
Murder, in The Death Penalty in America, supra note 31 at 159,
respectively. Wolfson concludes: "Given that the deterrent effect of the death
penalty for prison homicide is to be seriously doubted, it is clear that
management and physical changes in prison would do more than any legislated
legal sanction to reduce the number of prison murders." Id. at 172.
37 It might be argued that even the rare execution is dramatic and unduly
publicized and consequently has great effect. Ironically, the slight increase
in the number of executions in the past few years have robbed them of much
38 As to an asserted salutary influence on the healthy mind, tending to cause
it to shun lethal violence, one can only respond that no evidence has been
offered. Religious, social and noncapital legal requirements all teach us not
to murder. If the death penalty were needed as an incremental influence to
persuade noncrimnals to abjure killing, there would be elevated murder rates in
abolitionist states and nations; these have not been demonstrated.
39 The reply to this argument is the same as to the arguments that the death
penalty deters by teaching not to kill. Retribution is also said to have
another utilitarian by-product distinct from a Kantian eye-for-an-eye
justification: it satisfies demands for vengeance, preventing retaliatory
killing. Yet, during the period of no executions (1967-1977) and in the
overwhelming number of states that have abolished the death penalty, have not
sentenced anyone to death, or have not carried out executions, it is difficult
to find an instance of vengeance killing, although during this time there have
been perhaps 360,000 murders (about (20,000 per year for 18 years).
It is also argued that particularly for those who have been close to the
victims, who are members of his or her family, or who are fellow police
officers, or for those members of the public who somehow feel and
identification with the deceased, the death penalty provides personal
satisfaction, repaying in some measure the loss they felt in the death of the
victim. This hardly justifies the present system.
40 A few death penalty proponents say that the death penalty is the only way
of "assuring" life imprisonment for the works criminals. Recognizing that most
death sentences have turned into interminable prison sentences, they say this
is preferable to sentences of life imprisonment from which convicts may be
released on parole. But human ingenuity can fashion a sentence of life without
parole. The death sentence following extensive litigation, amounting to life
sentence for most while executing only a few, is an inefficient way of
achieving the purpose of live imprisonment. And again, this sort of life
sentencing process is not what the death penalty law contemplate.
41 This argument can be made by those who would defend the death penalty on
deterrence grounds, as well as by those who rely upon retribution concepts.
42 Some death penalty proponents argue that the erratic quality of the
capital sentencing system and its racial bias are characteristic of the
criminal justice system generally. But while such a condition may or may not
be tolerable when it results in imprisonment, it hardly justifies killing
43 See Furman v. Georgia, 408 U.S. 238, 293 (1972) (Brennan, J.
44 See Coker v. Georgia, 433 U.S. 584, 594-97 (1977).
45 See Enmund v. Florida, 458 U.S. 782, 792-96 (1982).
46 See Woodson v. North Carolina, 428 U.S. 280, 292-303 (1976),
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