The Death Penalty: Cruel and Unusual?

By Jos

THE enormity of killing one's fellow man with premeditation is the principal reason for the existence of the death penalty; it is also the principal argument for abolishing it. The dilemma of deciding which aspect of that paradox should prevail has occupied the minds and emotions of civilized men for centuries. This week it will be the concern of the U.S. Supreme Court as it hears oral arguments on the contention that the death penalty constitutes "cruel and unusual punishment" in violation of the Constitution's Eighth Amendment. The opposing lawyers are again marshaling the extensive arguments that have developed over many years of debate. The main question, however, is this: Has the U.S. reached the point at which the death penalty affronts the basic standards of decency of contemporary society?

For 4 1/2 years there has not been an execution in the U.S. This unofficial moratorium, which currently affects 696 prisoners, is the result of an intricately planned campaign that used every possible legal tactic or argument. Even before that, however, the number of executions had been decreasing markedly. From a 1935 high of 199, the annual total shrank to 76 in 1955, 56 in 1960 and two in 1967, when the moratorium began. Meanwhile, Great Britain has joined a worldwide trend toward abolition, and Canada has followed suit (except for killers of on-duty policemen and prison guards) as a five-year experiment.

The death penalty has been abolished before in Anglo-Saxon law. William the Conqueror banished it during his reign (1066-87), though he did not object to criminals being mutilated. But a few years later, Henry I (1100-35) permitted the ax and rope to return, and by the 16th century, offenders were also being drowned, drawn and quartered and boiled to death for crimes that ranged from cutting down a tree to stealing property worth more than a shilling. Traitors were hanged, then cut down while still alive, disemboweled so that their innards could be burned before their eyes, then decapitated, and finally quartered. The high mark of judicial bloodiness came with Henry VIII, of whose subjects 72,000 were executed.

Beginning in the late 19th century, a trend against capital punishment has continued, if not always steadily, in both Britain and America. In 1846 Michigan, then a territory, became the first English-speaking jurisdiction in the world to do away with the death penalty for all practical purposes (treason excepted). Various states have since tried complete abolition--with some, like Delaware in 1961, later returning to the death penalty. By now, 14 states have outlawed executions completely (or with narrow exceptions, notably for killing an on-duty policeman). Still, American juries continue to impose death penalties at a rate that has remained relatively constant for a decade: 100 per year. Moreover, while a 1966 Gallup poll showed that a narrow plurality of 47% opposed capital punishment for murder, the most recent survey found that, with growing fears about crime, 51% of Americans now favor the death penalty.

That is hardly a mandate for a new round of executions, but neither does it support the argument that capital punishment is an affront to contemporary standards. The Constitution places no specific restrictions on the death penalty, and its defenders--including the state's attorneys for California, Georgia and Texas, who are arguing the case before the Supreme Court--maintain that the ban on cruel and unusual punishment is meant simply to govern excessive or inherently cruel penalties. To these men, the death penalty is neither--at least for murder or rape, the main offenses for which it is now invoked.

In response, Stanford Law Professor Anthony Amsterdam, the principal architect of the abolition campaign, has developed an intricate argument. He finds that execution is now generally reserved for a few socially unacceptable, personally ugly and invariably poor defendants; a disproportionate number are from minority groups. "If a penalty is generally, fairly and uniformly enforced," says Amsterdam, "then it will be thrown off the statute books as soon as the public can no longer accept it. But when the penalty is enforced for a discriminatorily selected few, then all the pressures which normally exist to strike an indecent penalty off the books no longer exist. The short of the matter is that when a penalty is so barbaric that it can gain public acceptance only by being rarely, arbitrarily and discriminatorily enforced, it plainly affronts the general standards of decency of the society."

Whether this argument will persuade a majority of the Justices remains to be seen, but virtually every other argument for and against the death penalty has also been put before them. One main question is whether the death penalty deters criminals. Abolitionists point to studies showing that a halt in executions leads to no increase in capital crimes, and that murder rates are quite similar in neighboring states with and without the death penalty. Supporters of the death penalty argue that such studies include all murders, 80% of which result from disputes between persons who know each other, and that this 80% probably cannot be deterred by penalties of any kind. They insist, though, that holdup murders and similar crimes can be reduced by the fear of death, particularly if that death is imposed swiftly rather than after years of legal delays.

To support their statistical arguments, both sides call on the personal impressions of professional experts. Police consistently encounter criminals who say that they used no gun during a robbery because they feared the electric chair. Prison authorities, who tend to oppose the death penalty, report that these same criminals, once in jail, say that they simply did not want to kill anyone and that they told the cops whatever they thought the cops wanted to hear.

Religious authority, in so far as it influences mores, is no less equivocal. Most Protestant churches stand opposed to executions. Popes have long conceded the state's right to execute, but Paul VI regularly calls for clemency in individual cases. Jews are generally against the death penalty, and Israel has no capital punishment except for genocide and war crimes, which covered Eichmann. As for the Bible, it instructs, "Thou shall not kill," and then, in the next chapter of Exodus, provides, "He that smiteth a man, so that he die, shall be surely put to death."

Both supporters and opponents of the death penalty can cite ample horrors to justify their positions. Even the cleanest execution--and an appalling number are not--is so revolting to see that witnesses commonly vomit and faint. Electrocution is relatively swift, though the victim's flesh sometimes burns while his eyes strain out of their sockets. With cyanide and the rope, it sometimes takes five minutes for the dying man to fall totally unconscious, and usually 15 minutes before he is pronounced dead.

The principal case now before the Supreme Court chillingly demonstrates another kind of horror. By all the evidence, Ernest James Aikens Jr. is a brutal and remorseless killer of at least three people. He beat, raped and stabbed to death two women, one of them a neighbor in her 60s, the other five months pregnant. He also shot a homosexual who had picked him up on the road. Psychiatrists have unanimously pronounced him fearfully sane and unlikely ever to be rehabilitated.

Advocates of the death penalty argue that an Aikens --or a Manson or a Speck or an Eichmann--must be cut out of society. If these people are usually poor, friendless or from a minority group, it is because that is the sort of person who commits such crimes. Whatever the reasons for the crime, say those who favor the penalty, it is irresponsible ever to give a mass murderer a chance to go free. Abolitionists point out that life sentences could be imposed without possibility of parole, or that parole need never be granted if the prisoner is not rehabilitated.

Maintaining a man in prison for the rest of his life is doubtless costly--consuming tax dollars that might much better be spent on schools or hospitals--but it may cost the state even more to execute a man because of the extra care that courts take in capital cases. When Arkansas Governor Winthrop Rockefeller commuted the sentences of all 15 men on the state's death row before leaving office two years ago, he saved the state an estimated $1,500,000, considering the cost of fighting probable appeals.

So the arguments spin on and on, and the more each side insists on the rationality of its argument (what can be more rational than a discussion of the costs?), the more one is drawn to agree with Clarence Darrow, who observed a half-century ago that "questions of this sort are not settled by reason; they are settled by prejudices and sentiments or by emotion." Perhaps that is true of any great issue, but it is particularly so here. Underlying the debate over capital punishment is a central conflict within every man--the conflict between a desire for vengeance and a wish to honor life. It is no answer to say, as some do, that man can sanctify life by killing those who kill. Nor is there any real answer in the elegant argument of Jacques Barzun, who claims that prison existence so debases and brutalizes life that the death penalty is more humane. Even if that were true, the choice of death ought to be made by the prisoner, not by the state.

Too few opponents of capital punishment are willing to concede the full weight of the emotion of vengeance. Before reaching the high court, Oliver Wendell Holmes wrote: "The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would [go so far as to] gratify the passion of revenge outside the law, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution." Capital punishment is still very much based on that need for retribution, though just how strong that need is remains unclear. Even though a majority of Americans nominally endorse capital punishment, that endorsement is probably not so strong as to lead to lynchings in the streets if the death penalty were abolished. All change causes difficulties and dislocation, but this is not necessarily a reason to deter otherwise desirable progress. If it is conceded that man is not totally limited by his animal origins, that he can grow gentler and more humane, then it follows that death will some day join torture as a prohibited form of punishment.

The educated guessers predict that the Supreme Court is not likely now to decree the arrival of that day--at least for murder --though death for rape may fall.

If the death penalty survives at all, its determined opponents will doubtless turn first to Governors to seek commutations and then to state legislatures, which may provide the best forum for settling the question. One can reasonably hope that the legislators will endorse abolition, exercising leadership for the electorate. Such leadership is, after all, more properly the role of the legislature than of the courts. Shifting perceptions have already made most of the world's past executions, for political, religious or simply trivial offenses, seem barbaric. The mere suspicion of such future condemnations of our own times should make even the most righteous judge hesitate before continuing so fallible, so irreversible, so perilously godlike a practice as the imposition of death by decree.

Lord Chancellor Gardiner put the matter well during the debate that preceded the end of the death penalty for murder in Britain. Speaking of earlier decisions to abandon the grotesque hanging, disemboweling and quartering of traitors, he said: "We did not abolish that punishment because we sympathized with traitors, but because we took the view that it was a punishment no longer consistent with our self-respect." It would be welcome, in a time of diminished self-respect, to take this particular step toward reasserting it.

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