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 idealised 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 proponents.
* 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 offences 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 showed no demonstrable deterrent effect of capital punishment even during its heyday. Today's death penalty, which is far less frequently used, geographically localised, 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 than 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, 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 life imprisonment. Potential killers who rationally weigh 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 takes his chances like the soldier of fortune he is.
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 internalises social norms.
Although not mentally disturbed enough to sustain insanity as a defence, 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.
The consequences of the real American system of capital justice are no more favourable 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, 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 severe condemnation one who has committed the most opprobrious crime.
As with many 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 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. 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 many 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 civilisation, 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. 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.
* 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. Rarity of use contributed to invalidation of the death penalty for rape and felony murder, and to invalidation of the mandatory death penalty. 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 atleast 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, one 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.
Jack Greenberg is a Professor of Law, Columbia University. A.B. 1945, LL.B. 1948, LL.D. 1984 Columbia University. This paper was written in 1986 but most of the arguments, if not all, remain valid to this day.