When American University professor Robert Johnson decided last fall to teach a course on the death penalty, he was amazed that 75 students signed up--more than he's ever had in a class. A poll found they favored the penalty 49 to 31 percent with the rest undecided.
Johnson saw it as his job--and moral duty--to change that.
"Death should require absolute guilt on the part of the offender and absolute innocence on the part of the society," he said. "Violence is a social product. . . . Today's capital offenders are invariably drawn from the ranks of the underpriviledged and inadequate. . . . Each and every one of these persons can point to some mitigating circumstances that relieve them of some culpability for their crimes and partially implicate society in their actions."
Like Johnson, most academics and the college-educated oppose the penalty, but polls indicate that Americans as a whole strongly support it.
"Liberals generally feel guilty," said Ernest van den Haag, a Fordham University law professor and conservative theorist. "They think that somehow it's their fault that crimes are being committed. . . . Intellectuals belong to a class that is not greatly endangered by murder. . . . They can afford to be terribly humanitarian . . . People who are less educated and have less money are endangered by violent crime."
America's debate on the death penalty encompasses a wide range of moral, legal and political questions of the sort that seem calculated to raise ideological temperatures on both the left and right. Some of the issues, such as whether the penalty deters criminals, have spawned intricate scholarly analyses; others, such as why the poor are executed with disproportionate frequency, raise painful sociological questions. Finally, there is the simple, awesome question of whether it is ever right to take a human life.
Confronted with questions of such magnitude, the nation's political and judicial systems have been unwilling or unable to definitively resolve the nation's capital punishment dilemma. There is little evidence that this will change soon even though six years ago the U.S. Supreme Court declared the death penalty constitutional and 35 state legislatures passed new death statutes based on the high court guidelines.
While the future of the penalty remains in limbo, its pros and cons are argued by legal scholars, philosophers, law enforcement officials and social scientists as well as ordinary citizens. The debate can be cool and intellectual, with complex arguments and empirical research, or highly emotional, drawing on deeply held feelings of right and wrong. For the most part, the debate "has been waged on moral grounds," wrote Supreme Court Justice William J. Brennan Jr. "The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death."
For Henry Schwarzschild, head of the American Civil Liberties Union capital punishment project, the answer is an emphatic no: "Society should not be in the business of killing human beings . . . God knows what murderers deserve. The question is not what they deserve, it is what we are entitled to do to each other . . . We have seen in the 20th century states shed torrents and rivers of blood. We create political institutions to protect and enhance human life, not to kill . . . People learn the lesson from executions that killing somebody is an acceptable answer to some problems . . . No society that believes that can consider itself civilized."
Exactly the opposite, wrote Walter Berns, author of "For Capital Punishment: Crime and the Morality of the Death Penalty." We execute the worst criminals "out of moral necessity . . . We want to punish them to pay them back and by doing so we demonstrate that there are laws that bind men across generations and nations. . . . The criminal law must . . . be made awe-inspiring. . . . It must remind us of the moral order by which alone we can live as human beings. . . . To punish criminals, even to execute them, is to acknowledge their humanity . . . as responsible moral beings."
Perhaps nothing illustrates so sharply the difference between these two as their views of Israel's capture, trial and execution in 1961 of former SS Lieutenant Colonel Adolf Eichmann, who sent millions of European Jews to their deaths. Schwarzschild, a Jew who escaped Nazi Germany at 14, adamantly opposed the execution. Berns said justice demanded it, and it was the passion of Nazi-hunter Simon Wiesenthal who made him realize the moral necessity of retribution.
In many ways, the Eichmann case is the ultimate test for an opponent of the death penalty--like asking, on a larger scale, if that opponent would still oppose the penalty for someone who had brutally raped and murdered his wife and 3-year-old daughter. Eichmann provides the "supreme justification of the death penalty," wrote Hannah Arendt in her book, "Eichmann in Jerusalem: a Report on the Banality of Evil." She argued that the justice of retribution for the crime of mass murder might have been better understood had the judges simply told Eichmann:
". . . We are concerned here only with what you did, and not with the possible noncriminal nature of your inner life and of your motives or with the criminal potentialities of those around you. You told your story in terms of a hard-luck story but there still remains the fact that you have carried out . . . a policy of mass murder . . . And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations--as though you and your superiors had any right to determine who should and who should not inhabit the world--we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang."
Schwarzschild called the Berns argument in favor of retribution--and by extension the Arendt argument--"deeply dangerous" and "prefascist."
"I really do take offense at that," said Berns. "Does that say the U.S. is a fascist country in its history when it executed criminals? Was Israel fascist when it executed Eichmann? . . . Was Abraham Lincoln, who signed 262 death warrants, fascist?" Berns said his support of the penalty is contingent on its being applied only to the worst criminals without racial discrimination.
"The thought that murderers are to be given as much right to live as their victims oppresses me," wrote van den Haag. "Never to execute a wrongdoer, regardless of how depraved his acts, is to proclaim . . . no human being can be wicked enough to be deprived of life. Who actually can believe that? I find it easier to believe that those who affect such a view suffer from a failure of nerve."
Johnson, the American University professor, said the ultimate penalty should be life in prison because it "leaves open the door for mercy. You can always reconsider if there are dramatic and enduring changes of character . . . or new evidence." And Johnson argues that the conditions on death row itself are so painful as to constitute cruel and unusual punishment.
In its 1976 landmark decision upholding the constitutionality of the death penalty for murder, the U.S. Supreme Court specifically endorsed retribution as "an expression of society's moral outrage." The lead opinion said while this "may be unappealing to many, . . . it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs. . . . The decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death."
While philosophers have struggled with the moral implications, the courts have engaged in a painstaking effort of their own to reach a consensus on capital punishment and when, if ever, it was justified.
In 1636 in New England the death penalty was imposed for idolatry, witchcraft, blasphemy, assault in sudden anger, sodomy, buggery and adultery, among others. By 1850 abolitionist sentiment was strong, and gradually laws making death mandatory for specified crimes were eliminated. Many states dropped the penalty entirely.
By the 1930s, the high point of executions in America, there were 167 executions a year, an average that dwindled to 72 a year in the 1950s. Executions ceased in 1967 as officials waited to see what the Supreme Court would do.
For years the court had avoided the issue entirely. Then in 1972, faced with the increasingly urgent need to provide some guidance, it finally spoke.
In a narrow 5-to-4 decision the court declared the penalty was being administered in an unconstitutional way because juries operating with "untrammeled discretion" were handing it out in an arbitrary, discriminatory, even "freakish" way.
Receiving a death sentence was "cruel and unusual in the same way that being struck by lightning is cruel and unusual," wrote Justice Potter Stewart. Byron R. White added, "There is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." William O. Douglas said the death laws were "pregnant with discrimination" against the black and poor. "One searches our chronicles in vain for the execution of any member of the affluent strata of this society."
One of the court's key concerns in 1972 was possible racial discrimination. The three cases that brought on the decision--a murder and a rape in Georgia and a rape in Texas--all involved black offenders and white victims. The murder, a shooting, had occurred accidentally as the offender fled during a robbery in a state where 298 of the 366 people executed since 1930 were black.
Two justices, William J. Brennan Jr. and Thurgood Marshall, declared the penalty unconstitutional under any circumstances. "The calculated killing of a human being by the state involves, by its very nature, a denial of the executed person's humanity," wrote Brennan. Marshall cited evidence that the penalty doesn't deter and said, "It is morally unacceptable to the people of the United States at this time in their history."
The decision invalidated death laws of 41 states, the District of Columbia and the federal government and took more than 600 off death row.
In response, 35 state legislatures and Congress drafted new death laws. Polls showed increasing concern with crime and support for the penalty.
In its landmark 1976 decision, the court approved, by a 7-to-2 majority, death-for-murder laws in Georgia, Florida and Texas drafted in response to its 1972 decision. The new laws provided for "guided discretion" in capital sentencing. Factors of aggravation and mitigation would be considered in special sentencing hearings and later reviewed by higher courts to safeguard against prejudice.
"It is an extreme sanction, suitable to the most extreme of crimes," said the lead opinion by Justices Stewart, Lewis F. Powell Jr. and John Paul Stevens. ". . . The concerns expressed in the 1972 decision can be met by a carefully drafted statute that focuses the jury's attention on the particularized nature of the crime and . . . individual defendant . . . In this way the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence."
Concurring, Justices White and William H. Rehnquist and Chief Justice Warren E. Burger scolded opponents of the penalty for arguing "that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law." The penalty is necessary, they said, even though "mistakes will be made and discriminations will occur."
At the same time, the court declared mandatory death laws unconstitutional because they treat "all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass."
States like Virginia that had passed mandatory statutes after 1972 quickly redrafted them along "guided discretion" lines. Virginia's new law, patterned after the new Georgia law approved by the Supreme Court in 1976, went into effect in 1977, Maryland's in 1978. The District never drafted a new statute and in 1980 killed the old one. The last execution in a local jurisdiction was in Virginia in 1962.
After the 1976 decision the "capital punishment bar," as the small but devoted band of lawyer-opponents to the penalty is known, switched to delaying tactics and began filing every possible appeal in every death case. Four executions have taken place, but a de facto moratorium on executions in America now exists and the United States in effect has joined most Western nations in either dropping the penalty or letting it fall into disuse.
No one knows how long this may last. American juries continue to send 150 murderers a year to death row, where there are already 1,009 residents, according to the NAACP Legal Defense and Educational Fund Inc.
"My own armchair reading is the public feels comfortable in having the death penalty on the books," said Washington attorney David E. Kendall, who has handled death cases, "but there is an enormous inertia and resistance to actually executing people."
Scholars who search for the reasons behind the strong public support for the penalty believe that people are concerned by crime and that they hope the penalty will deter criminals. "I think crime in the streets and law and order have become a genuine concern to a lot of people," said Tufts University philosophy professor Hugo Adam Bedau, editor of "The Death Penalty in America."
Does the death penalty deter criminals?
Ever since the 18th century man of letters Dr. Samuel Johnson observed pickpockets at work in a crowd watching a pickpocket hang, researchers have faced the problem that it is clear when the penalty fails to deter but not when it succeeds.
Early studies by Thorsten Sellin, professor of sociology emeritus at the University of Pennsylvania, found states with the penalty had as many murders and murderous assaults on police as states without it. Murder didn't decrease when states instituted the penalty or increase when they abolished it.
Executions may even encourage murder, said William J. Bowers and Glenn L. Pierce of Northeastern University's Center for Applied Social Research. Studying a 56-year period in New York, they found two additional murders after each execution and decided executions send messages of "lethal vengeance."
But a 1975 analysis by Isaac Ehrlich found each execution in America may have saved eight lives by deterring potential murderers. While Bowers and Pierce said the study has been called into question by other research, the Supreme Court concluded death "undoubtedly is a significant deterrent" for "many" potential murderers.
"No other punishment deters men so effectually from committing crimes," said an early expert quoted by the Supreme Court. "This is one of those propositions which it is difficult to prove. . . . It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction."
State legislators depend on such experience in passing death laws, and Justice White wrote that their actions should not be viewed "as some form of vestigial savagery or as purely retributive but as solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons."
Van den Haag thinks that the burden of proof should be on opponents of the penalty. "It seems morally indefensible to let convicted murderers survive at the probable--even at the merely possible--expense of the lives of innocent victims who might have been spared had the murderers been executed," he wrote.
Supporters argue death is the only possible deterrent for someone already serving a life term, and that death as a penalty for murder during a felony is needed to protect witnesses.
But Justice Brennan concluded death fails to deter because the penalty is not applied invariably or quickly. "The risk of death is remote and improbable; in contrast, the risk of long-term imprisonment is near and great."
"If it could be shown castration was an effective way to deter rape, if maiming and blinding people were an effective way to stop overparking and embezzlement, I would be appalled at the thought," said Bedau. "The great problem from the moral point of view for deterrence is that you're leaning on a principle that will swallow you up."
Race has been a prominent factor in the imposition of the death penalty in America's history, but scholars now debate whether that is still the case. Some studies show that white murderers today are more likely to be sentenced to death than black murderers.
Forty-two percent of those on death row today are black. Of the 3,863 people executed in America since 1930, 53.5 percent were black. Of the 3,338 murderers executed, 49 percent were black; of the 455 rapists, 89 percent.
Blacks constituted only 10 percent of the population during this period, but the murder rate in the black community was four to seven times that for whites. More than 90 percent of murders involve offenders and victims of the same race.
In the past a death sentence for rape was clearly racist in a vast majority of cases. Gary Kleck, writing in the American Sociological Review, found "huge racial differentials" in death sentences handed out to blacks and whites for rape because the penalty was used to punish blacks who raped whites in the South. There have been no executions for rape outside the South or border states since 1930, and today death for rape has virtually disappeared. Only two persons are now on death row for rape, and their victims were children. In 1978 the Supreme Court outlawed the penalty for rape of an adult woman.
Studying the racial characteristics of those who received the death penalty since 1930, Kleck found that in 25 of 38 years examined, white murderers were more likely to receive death sentences than black murderers. For the period as a whole, he put the chance of a black convicted murderer receiving a death sentence at .972 percent versus 1.043 percent for a white murderer.
In the South, however, he found blacks more likely to receive death sentences for murder--but only prior to 1950; after that, the rate was the same for both black and white murderers.
Outside the South after 1950, however, white murderers had a higher chance of being sentenced to death than black murderers.
"Every single study consistently indicating discrimination toward blacks was based on older data from southern states," he wrote. ". . . The evidence considered as a whole indicates no racial discrimination in use of the death penalty for murder outside the south prior to 1950 ."
Bowers and Pierce, the Northeastern University social scientists, studied death sentences imposed between 1972 and 1977 and found another kind of discrimination: Blacks who killed whites were far more likely to receive death sentences than killers in any other racial combination.
Writing in the journal Crime & Delinquency, they reported that in Georgia they found a black 33 times as likely to get death for murdering a white as for murdering another black. The same black murderer was also substantially more likely to get death than a white murderer, regardless of whether the white murdered a black or white.
On the other hand, a black who murdered someone of his own race was substantially less likely to get death than a white murderer regardless of the race of his victim.
Bowers and Pierce attributed their findings to the "racist tenet: that white lives are worth more than black lives," although this would not appear to explain why a white was substantially more likely than a black to get death for murdering a black.
Kleck, who also noted that blacks were "devalued" as crime victims, added that "white paternalism," or the view that blacks are "child-like creatures who were not as responsible for their actions as whites," may help explain why a white murderer would be held more accountable than a black murderer in the case where the victim was a "devalued" black.
Like Kleck's, the Bowers-Pierce overall data, if not broken down by race of victim, actually shows white murderers in Georgia taken as a whole twice as likely to be sentenced to death as black murderers.
That is because there were in Georgia almost twice as many black-on-black murders--the combination that got by far the lowest death-sentence rate--as all other murder combinations taken together.
Bowers and Pierce think the court needs to consider their research because "either discrimination by race of offender or disparities of treatment by race of victim of the magnitudes we have seen here are a direct challenge to the constitutionality of the new capital statutes."
Nobody knows for sure whether or not there will be executions on a wide scale in America again. While clearly there is a certain momentum favoring it, the possible points of appeal seem limitless. "Once the door was opened to capital punishment in 1976 , so many things need to be answered that those who want capital punishment must expect some time to iron out the wrinkles," said Richard J. Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia, who, in cooperation with another attorney, represents on appeal Joseph Michael Giarratano, described in the first part of this series.
As things stand, the great American debate on the death penalty is likely to continue for years without clear resolution unless, of course, there is some unexpected development like the execution of a man later found to be innocent--an incident that mobilized public opinion against the penalty in England. So far there has been no such error in this country, and with the death statutes now as strict as they are there is unlikely to be one.
Legally, most states quickly reformed their death laws to meet the guidelines of the U.S. Supreme Court, yet opponents of the penalty say this reform isn't good enough, that no legal reforms can ever make up for problems inherent in the administration of the penalty. Even under the new, reformed state laws, said Schwarzschild, the penalty continues to be administered in an "arbitrary and discriminatory" way. He said that when this is finally proved to the satisfaction of the Supreme Court, the penalty will be abolished entirely as unfeasible.
At American University, Robert Johnson, the professor whose death penalty class students started out favoring the penalty by 49-31 percent, thinks he won his case. When the class was over this spring, another anonymous poll showed that 71 percent of his students said they had come to be opposed to the death penalty.