Killing as Punishment: Reflections on the Death Penalty in America

by Hugo Adam Bedau

Overview

One of the most respected (and ardent) opponents of the death penalty collects his highly acclaimed essays on capital punishment.

Product Details

ISBN-13:	9781555535957
Publisher:	Northeastern University Press
Publication date:	03/11/2004
Edition description:	New Edition
Pages:	256
Product dimensions:	6.00(w) x 9.00(h) x 1.20(d)
Age Range:	18 Years

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KILLING AS PUNISHMENT

REFLECTIONS ON THE DEATH PENALTY IN AMERICA

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By HUGO ADAM BEDAU

NORTHEASTERN UNIVERSITY PRESS

Copyright © 2004 Hugo Adam Bedau
All right reserved.
ISBN: 1-55553-595-X

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Chapter One

THE DEATH PENALTY IN AMERICA, YESTERDAY AND TODAY

Where does our society now stand on the matter of abolishing capital punishment? To answer that question, I propose to contrast our current situation with the recent past, and to take as my baseline the late 1950s, when I first became concerned about the death penalty. To tally the relevant facts, let us start by identifying those developments that have tended to entrench the death penalty in our society.

I

Fifty years ago the American public was almost evenly divided over the death penalty, according to survey research of that day, with perhaps fifteen percent of the public undecided. In the 1980s, public support for the death penalty increased to about three or four to one, with barely 10 percent undecided. It may be, as some have remarked, that current national support for the death penalty is indeed a mile wide, but only an inch deep, and that given an effective alternative punishment, a majority of Americans would be willing to end executions. Yet popular support for the death penalty today is widespread and occasionally reaches strident proportions, as the circus atmosphere surrounding the execution of Ted Bundy in Florida in January 1989 illustrates. This apparently overwhelming public support for the death penalty (even though it has recently declined from around 80 percent to around 70 percent) is no doubt the greatest single obstacle-directly or indirectly-at the present time to total nationwide abolition.

Five decades ago the nation's major political parties ignored the death penalty; the issue played no visible role in electoral politics at the local, state, or federal levels. Today, the national Republican Party has a standing platform plank favoring the death penalty, and five Republican presidents have used the "bully pulpit" of the White House to cultivate public support for executions. Two of them, Richard Nixon and Ronald Reagan, went even further. They openly criticized Supreme Court decisions that introduced some measure of justice into the law on capital punishment. During 1988, the world witnessed an unprecedented spectacle as our presidential election campaigns were polarized around this issue. In 2000 the nation elected a president (George W. Bush) who had presided over dozens of executions in his capacity as the governor of Texas.

Fifty years ago, any prospective juror in a capital case who voiced opposition to the death penalty was summarily dismissed "for cause" by the trial judge. Today, despite the Witherspoon ruling in 1968, little has changed. Every prosecutor in a capital case begins the trial knowing he or she has a death-scrupled jury, and knowing that such juries are more willing to convict on a given body of evidence than a jury chosen at random, a true jury of the defendant's (and the victim's) peers in the community.

In the late 1950s, it was not uncommon for a governor to commute a death sentence, especially if it had been imposed under a mandatory death statute, or on someone other than the "triggerman," or on a juvenile or a woman, or for other reasons of mercy. Today, excepting Governor Ryan's recent extraordinary, mass commutation, commutation of the death sentence has virtually ceased. (See the discussion in Chapter 4.) The reasons for this change are not fully understood, but substantial public support for the death penalty and the unwillingness of governors to commit what they view as political suicide are no doubt the principal factors. The result is a curious and unbalanced struggle: The populist trial court tries to wrestle the offender into the execution chamber; the elitist appellate court is on the lookout for the grosser fouls; and the chief executive stands passively to one side.

Five decades ago the racial impact of the death penalty was a troubling matter, but it was neither carefully studied nor widely lamented-hardly surprising in a day when the white threat to lynch blacks was still quite real and Jim Crow governed the relations between the races. For the past thirty years, we have known that the death penalty for rape was virtually reserved for black males found guilty of raping white females. We also know that among those executed for murder, the race of the victim is still decisive. In eighty percent of the executions during the past decade (1993-2002), the offender's victim was white. Rarely has a white offender been executed for the murder of a nonwhite victim. In 1987, the Supreme Court acknowledged in McCleskey v. Kemp that the racial pattern of capital indictments, sentences, and executions cannot plausibly be explained except by assuming some form of bias against offenders whose victims are white. Even so, the Court could find no constitutional ground for overturning the death sentences that were the product of such systemic bias.

In the late 1970s in Gregg v. Georgia and related cases, the Supreme Court rejected the argument that the death penalty in principle is a "cruel and unusual punishment." The Court had earlier upheld the death penalty in McGautha v. California against the criticism that it was in violation of "equal protection of the laws." Not only has the Court held that the death penalty is not per se unconstitutional, the current Court has apparently brought to a halt most efforts to introduce procedural reforms in capital cases. Such reforms during the 1970s were the product of the belief shared by most members of the Burger Court that "death"-that is, the punishment of death-"is different," and so of course more stringent procedures are required when someone is sentenced to death. Today, however the conservatives on the Rehnquist Court would roll back these reforms. They have been under steady criticism by the Chief Justice himself. Two areas of concern above all others have marked the Court's retrograde practices when measured by the standards of international human rights law. One is the toleration of death sentences for the mentally retarded. The other is allowing persons who were under eighteen at the time of their crime to be sentenced to death. The Court has yet to muster a majority against the latter issue. On the former, however, in 2002 by a vote of six to three in Atkins v. Virginia the Court ruled-in the words of Justice Stevens-that "Death is not a suitable punishment for a mentally retarded individual."

In earlier decades, legislatures would respond to public outcry over "the crime of the hour" by increasing the severity of the punishment from imprisonment to death. In the 1930s, this happened with the crime of kidnapping; in the 1960s the crime was aircraft hijacking; today; the crime is drug-related homicide. During the presidential campaign of 1988, Congress passed by an overwhelming vote the Anti-Drug Abuse Act. One of its provisions treats as a federal crime any homicide that occurs during drug-related activities. The provision also authorizes the trial court to sentence to death anyone so convicted. This law effectively introduces capital punishment into every jurisdiction in the nation, whether abolitionist under its own laws or not; the law in effect threatens for the first time to nationalize the death penalty.

Finally, on this side of the debate, we must look squarely at the worst development of all. In the 1950s, on any given day, there were about 200 prisoners awaiting execution. Rarely did anyone remain on death row for more than a few years. Today, in two dozen American prisons there are over 3,700 condemned convicts, most of whom have been under a death sentence for more than a decade. Apart from the Hitler and Stalin eras in Europe, this is the greatest concentration of prisoners on the altar of Moloch in the modern history of western civilization.

II

Now let us turn to the other side of the debate. The set of developments over the past five decades flavoring abolition are many and diverse. Five decades ago, only six states were completely without the death penalty. Delaware's decision to abolish executions in 1958 was the first in many years where a state legislature voted to end executions. Today, abolition jurisdictions number a baker's dozen.

Fifty years ago persons could be and were sentenced to death and executed not only for murder but also for rape; indeed, ten percent of all executions were for that crime. From time to time executions also occurred for armed robbery, burglary, and kidnapping. The most famous execution of the 1950s-Julius and Ethel Rosenberg in New York-and of the 1960s-Caryl Chessman in California-were for nonhomicidal crimes. Dozens of different offenses were punishable by death; my favorite was the death penalty, in Georgia for kicking over a tombstone ("desecrating a grave," in the sober language of the statute). Today, using the death penalty to punish crime has survived Supreme Court scrutiny only when the crime is some form of homicide.

In the 1950s, death was the mandatory punishment for at least one crime in many capital jurisdictions. Today, the death penalty is not a mandatory punishment for any crime.

Fifty years ago, the trial courts that did have sentencing discretion in capital cases were free to exercise that discretion unfettered by any pretense of fairness. The law did not even attempt to curb arbitrariness or discrimination in the choice of sentence for a capital crime. Today, judges and jurors must at least profess to have well-grounded reasons for a death sentence rather than a prison sentence, based on evidence presented during the post-conviction, pre-sentencing phase of the trial. Furthermore, the trial jury is entitled to hear anything of a mitigating nature that might serve as a reasonable ground for a prison sentence rather than a death sentence, and defense counsel is free to present a complete personality profile on the defendant to the sentencing court.

Five decades ago persons were sentenced to death and executed without assurance of review by the highest state appellate court, much less review in the federal courts, of constitutional issues. Today, review of every death sentence by the relevant state court is required by law in most jurisdictions and further review in the federal courts is a virtual certainty. These reviews are significant if one judges by their effects. The research by Professor James Liebman and his associates at Columbia University. Law School has shown in their report, A Broken System (2000, 2002), that two-thirds of all death sentences in recent years meted out by trial courts have been reversed on appeal in state or federal courts.

In the late 1950s, the Supreme Court had expressed no views on the constitutionality of the death penalty. Since that time, the Court has rejected on constitutional grounds mandatory death sentences and death sentences for nonhomicidal crimes such as rape and kidnapping.

Five decades ago, two or three executions were carried out each week in any of three dozen states across the nation. During the 1990s, very, few executions occurred each month, and they were confined to a dozen jurisdictions. The only places where death sentence prisoners have been regularly executed are in the deep South.

In the 1950s, executions were carried out by hanging, shooting, electrocuting, or asphyxiating the prisoner. These methods are still in use, but in the latest phase of the continuing search for the ideal form of execution, legislatures have increasingly favored death by lethal injection. This procedure is relatively painless, clean, reliable, and quick, at least when compared with neck-breaking, high-voltage frying, choking by gas, or the trauma of multiple bullet wounds. Nevertheless, lethal injection illustrates Schwarzschild's Paradox, named after the late Henry Schwarzschild, who first formulated it: Some methods of carrying out the death penalty are worse than others, but none is better than any (for a fuller discussion, see Chapter 5.)

In the late 1950s, social scientists, lawyers, and humanists in this country rarely studied the death penalty, and even more rarely published the results of their investigations and reflections. Ignorance about the actual status, effects, and functions of the death penalty in the United States was widespread. Today, two or three articles on one or another aspect of the death penalty, appear in professional journals every month, and books on the subject are published every year. With a whole library of current materials to consult (see the Epilogue), there is no excuse for anyone not to be fully informed about our lawful lethal practices.

Five decades ago, pioneering research had just been published that cast doubt on the special deterrent effect of the death penalty. Now, after three decades of increasingly sophisticated inquiry, the results are reasonably clear. Either we can infer nothing from the data on the question because the statistical methods are too crude given the infrequency of executions and the importance of unquantifiable variables, or we can conclude that the two penalties-death vs. long-term imprisonment-are about equally (in)effective as deterrents.

Finally, in 1959, only one flail voice was raised against the death penalty nationwide; it issued from the American League to Abolish Capital Punishment, founded in the 1920s. But by the mid-1960s, the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund had joined the cause. In the 1970s, Amnesty International focused the efforts of its worldwide organization to attack the problem. Today, the National Coalition to Abolish the Death Penalty supports a fully staffed office in Washington, D.C., national and regional conferences, and the participation of more than one hundred multi-issue organizations concerned with civil liberties, human rights, and legal aid. Foremost among these organizations is the Death Penalty Information Center, founded in 1990 and located in the nation's capital. Its regular reports on all the major empirical and legal issues surrounding the death penalty offer assistance to journalists and others who wish to keep informed.

In the 1950s, no one thought that a nationwide moratorium on executions was desirable or possible. Today, thanks to the leadership of the American Bar Association, such a moratorium is openly advocated in many quarters and as of this writing has found favor in two states, Illinois and Maryland.

In the 1950s, many Protestant and Jewish denominations opposed the death penalty on religious grounds. In recent years they have been joined by the powerful voices of the American Catholic Bishops and the Vatican. If the Catholic laity were to join the clergy, the end of the death penalty would be within reach.

III

It is apparent that awareness of and opposition to the death penalty is growing. But rather than dwelling on that point, I want to offer a few cautionary observations suggested by the foregoing survey.

Continues...

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Table of Contents

	Introduction	ix
1	The Death Penalty in America, Yesterday and Today	3
2	American Populism: Witnesses to an Execution	16
3	Convicting and Executing the Innocent	34
4	Executive Clemency in Capital Cases	55
5	The Choice between Imprisonment and Death	74
6	A Moral Reading of the Eighth Amendment	89
7	Human Dignity and the Eighth Amendment	110
8	Using Moral Principles to Argue about the Death Penalty	143
9	Abolishing the Death Penalty Even for the Worst
	Murderers	158
	Epilogue	179
	Notes	200
	Acknowledgments	233
	Index	235

Editorial Reviews

"As with any of Hugo Adam Bedau's works, Killing as Punishment is extremely well written and thought provoking."

—Criminal Justice Review

"Hugo Bedau . . . has written widely on the death penalty. The first five chapters of his book "explore in detail a variety of factual issues raised by the death penalty," . . . The last four chapters are concerned with constitutional and ethical issues. Here the author argues that the Supreme Court's arguments are not conclusive; many moral arguments used by opponents of the death penalty are less conclusive than their users believe; and there are reasons favoring the abolition of the death penalty even for the worst murders."—Theology Digest

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