Over 1,000 state prisoners are on death row in America today. A Justice Department official recently said that many of them are exhausting their appeals and that we may soon "witness executions at a rate approaching the more than three per week that prevailed during the 1930's."
On Capitol Hill, meanwhile, there is an effort to restore the death penalty as a punishment for certain Federal crimes. A bill to accomplish this was approved by the Judiciary Committee in a 13-to-6 vote last year when conservatives lined up for the death penalty and liberals declaimed in vain against it. Yet one need not be a certified liberal in order to oppose the death penalty. Richard Viguerie, premier fundraiser of the New Right, is a firm opponent of capital punishment.
Some of the arguments against the death penalty are essentially conservative, and many others transcend ideology. No one has to agree with all of the arguments in order to reach a decision. As President Reagan has said in another context, doubt should always be resolved on the side of life.
Nor need one be "soft on crime" in order to oppose the death penalty. Albert Camus, an opponent of capital punishment, said: "We know enough to say that this or that major criminal deserves hard labor for life. But we don't know enough to decree that he be shorn of his future—in other words, of the chance we all have of making amends."
But many liberals in our country, by their naive ideas about quick rehabilitation and by their support for judicial discretion in sentencing, have done much to create demand for the death penalty they abhor. People are right to be alarmed when judges give light sentences for murder and other violent crimes. It is reasonable for them to ask: "Suppose some crazy judge lets him out, and members of my family are his next victims?" The inconsistency of the judicial system leads many to support the death penalty.
There are signs that some liberals now understand the problem. Senators Patrick Leahy (D., Vt.) and Edward Kennedy (D., Mass.), in opposing the death-penalty bill approved by the Senate Judiciary Committee, are suggesting as an alternative "a real life sentence" for murder and "heinous crimes." By this they mean a mandatory life sentence without possibility of parole. And if we adopt Chief Justice Warren Burger's proposal about making prisons into "factories with fences," perhaps murderers can pay for their prison room and board and also make financial restitution to families they have deprived of breadwinners.
With these alternatives in mind, let us consider 10 good reasons to oppose the death penalty.
1. There is no way to remedy the occasional mistake. One of the witnesses against the death penalty before the Senate committee last year was Earl Charles, a man who spent over three years on a Georgia death row for murders he did not commit. Another witness remarked that, had Mr. Charles faced a system "where the legal apparatus was speedier and the death penalty had been carried out more expeditiously, we would now be talking about the late Mr. Charles and bemoaning our error."
What happens when the mistake is discovered after a man has been executed for a crime he did not commit? What do we say to his widow and children? Do we erect an apologetic tombstone over his grave?
These are not idle questions. A number of persons executed in the United States were later cleared by confessions of those who had actually committed the crimes. In other cases, while no one else confessed, there was great doubt that the condemned were guilty. Watt Espy, an Alabamian who has done intensive research on American executions, says that he has "every reason to believe" that 10 innocent men were executed in Alabama alone. Mr. Espy cites names, dates and other specifics of the cases. He adds that there are similar cases in virtually every state.
We might consider Charles Peguy's words about the turn-of-the-century French case in which Capt. Alfred Dreyfus was wrongly convicted of treason: "We said that a single injustice, a single crime, a single illegality, particularly if it is officially recorded, confirmed...that a single crime shatters and is sufficient to shatter the whole social pact, the whole social contract, that a single legal crime, a single dishonorable act will bring about the loss of one's honor, the dishonor of a whole people."
2. There is racial and economic discrimination in application of the death penalty. This is an old complaint, but one that many believe has been remedied by court-mandated safeguards. All five of the prisoners executed since 1977—one shot, one gassed and three electrocuted—were white. This looks like a morbid kind of affirmative action plan, making up for past discrimination against blacks. But the five were not representative of the death-row population, except in being male. About 99 percent of the death-row inmates are men.
Of the 1,058 prisoners on death row by Aug. 20,1982, 42 percent were black, whereas about 12 percent of the United States population is black. Those who receive the death penalty still tend to be poor, poorly educated and represented by public defenders or court-appointed lawyers. They are not the wealthy murderers of Perry Mason or Agatha Christie fame.
Discriminatory application of the death penalty, besides being unjust to the condemned, suggests that some victims' lives are worth more than others. A study published in Crime & Delinquency (October 1980) found that, of black persons in Florida who commit murder, "those who kill whites are nearly 40 times more likely to be sentenced to death than those who kill blacks."
Even Walter Berns, an articulate proponent of the death penalty, told the Senate Judiciary Committee last year that capital punishment "has traditionally been imposed in this country in a grossly discriminatory fashion" and said that "it remains to be seen whether this country can impose the death penalty without regard to race or class." If it cannot, he declared, then capital punishment "will have to be invalidated on equal-protection grounds."
It is quite possible to be for the death penalty in theory ("If this were a just world, I'd be for it"), but against it in practice ("It's an unjust, crazy, mixed-up world, so I'm against it").
3. Application of the death penalty tends to be arbitrary and capricious; for similar crimes, some are sentenced to death while others are not. Initially two men were charged with the killing for which John Spenkelink was electrocuted in Florida in 1979. The second man turned state's evidence and was freed; he remarked: "I didn't intend for John to take the rap. It just worked out that way."
Soon after the Spenkelink execution, former San Francisco official Dan White received a prison sentence of seven years and eight months in prison for killing two people—the Mayor of San Francisco and another city official.
Anyone who follows the news can point to similar disparities. Would the outcome be much different if we decided for life or death by rolling dice or spinning a roulette wheel?
4. The death penalty gives some of the worst offenders publicity that they do not deserve. Gary Gilmore and Steven Judy received reams of publicity as they neared their dates with the grim reaper. They had a chance to expound before a national audience their ideas about crime and punishment, God and country, and anything else that happened to cross their minds. It is hard to imagine two men less deserving of a wide audience. It can be argued, of course, that if executions become as widespread and frequent as proponents of the death penalty hope, the publicity for each murderer will decline. That may be so, but each may still be a media celebrity on a statewide basis.
While the death penalty undoubtedly deters some would-be murderers, there is evidence that it encourages others— especially the unstable who are attracted to media immortality like moths to a flame. If instead of facing heady weeks before television cameras, they faced a lifetime of obscurity in prison, the path of violence might seem less glamorous to them.
5. The death penalty involves medical doctors, who are sworn to preserve life, in the act of killing. This issue has been much discussed in recent years because several states have provided for execution by lethal injection. In 1980 the American Medical Association, responding to this innovation, declared that a doctor should not participate in an execution. But it added that a doctor may determine or certify death in any situation.
The A.M.A. evaded a major part of the ethical problem. When doctors use their stethoscopes to indicate whether the electric chair has done its job, they are assisting the executioner.
6. Executions have a corrupting effect on the public. Thomas Macaulay said of the Puritans that they "hated bear-baiting, not because it gave pain to the bear, but because it gave pleasure to the spectators." While wrong on the first point, they were right on the second. There is something indecent in the rituals that surround executions and the excitement—even the entertainment—that they provide to the public. There is the cat-and-mouse ritual of the appeals process, with prisoners sometimes led right up to the execution chamber and then given a stay of execution. There are the last visits from family, the last dinner, the last walk, the last words. Television cameras, which have fought their way into courtrooms and nearly everywhere else, may some day push their way right up to the execution chamber and give us all, in living color, the very last moments.
7. The death penalty cannot be limited to the worst cases. Many people who oppose capital punishment have second thoughts whenever a particularly brutal murder occurs. When a Richard Speck or Charles Manson or Steven Judy emerges, there is a tendency to say, "That one really deserves to die." Disgust, anger and genuine fear support the second thoughts.
But it is impossible to write a death penalty law in such a way that it will apply only to the Specks and Mansons and Judys of this world. And, given the ingenuity of the best lawyers money can buy, there is probably no way to apply it to the worst murderers who happen to be wealthy.
The death penalty, like every other form of violence, is extremely difficult to limit once the "hard cases" persuade society to let down the bars in order to solve a few specific problems. A sentence intended for Charles Manson is passed instead on J.D. Gleaton, a semiliterate on South Carolina's death row who had difficulty understanding his trial. Later he said: "I don't know anything about the law that much and when they are up there speaking those big words, I don't even know what they are saying." Or Thomas Hays, under sentence of death in Oklahoma and described by a fellow inmate as "nutty as a fruit cake." Before his crime, Mr. Hays was committed to mental hospitals several times; afterwards, he was diagnosed as a paranoid schizophrenic.
8. The death penalty is an expression of the absolute power of the state; abolition of that penalty is a much- needed limit on government power. What makes the state so pure that it has the right to take life? Look at the record of governments throughout history—so often operating with deception, cruelty and greed, so often becoming masters of the citizens they are supposed to serve. "Forbidding a man's execution," Camus said, "would amount to proclaiming publicly that society and the state are not absolute values." It would amount to saying that there are some things even the state may not do.
There is also the problem of the state's involving innocent people in a premeditated killing. "I'm personally opposed to killing and violence," said the prison warden who had to arrange Gary Gilmore's execution, "and having to do that is a difficult responsibility." Too often, in killing and violence, the state compels people to act against their consciences.
And there is the point that government should not give bad example—especially not to children. Earl Charles, a veteran of several years on death row for crimes he did not commit, tried to explain this last year: "Well, it is difficult for me to sit down and talk to my son about 'thou shalt not kill,' when the state itself...is saying, 'Well, yes, we can kill, under certain circumstances.' " With great understatement, Mr. Charles added, "That is difficult. I mean, that is confusing to him."
9. There are strong religious reasons for many to oppose the death penalty. Some find compelling the thought that Cain, the first murderer, was not executed but was marked with a special sign and made a wanderer upon the face of the earth. Richard Viguerie developed his position on capital punishment by asking what Christ would say and do about it. "I believe that a strong case can be made," Mr. Viguerie wrote in a recent book, "that Christ would oppose the killing of a human being as punishment for a crime." This view is supported by the New Testament story about the woman who faced execution by stoning (John 8:7, "He that is without sin among you, let him cast the first stone").
Former Senator Harold Hughes (D., Iowa), arguing against the death penalty in 1974, declared: "'Thou shalt not kill' is the shortest of the Ten Commandments, uncomplicated by qualification or exception....It is as clear and awesomely commanding as the powerful thrust of chain lightning out of a dark summer sky."
10. Even the guilty have a right to life. Leszek Syski is a Maryland antiabortion activist who says that he "became convinced that the question of whether or not murderers deserve to die is the wrong one. The real question is whether other humans have a right to kill them." He concluded that they do not after conversations with an opponent of capital punishment who asked, "Why don't we torture prisoners? Torturing them is less than killing them." Mr. Syski believes that "torture is dehumanizing, but capital punishment is the essence of dehumanization."
Richard Viguerie reached his positions on abortion and capital punishment independently, but does see a connection between the two issues: "To me, life is sacred," Mr. Viguerie says. "And I don't believe I have a right to terminate someone else's life either way—by abortion or capital punishment." Many others in the prolife movement have come to the same conclusion. They don't think they have a right to play God, and they don't believe that the state encourages respect for life when it engages in premediated killing.
Camus was right: We know enough to say that some crimes require severe punishment. We do not know enough to say when anyone should die.