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License to Kill

For Capital Punishment: Crime and the Morality of the Death Penalty

by Walter Berns
Basic Books, 214 pp., $10.95

The last execution in the United States was in Utah in January 1977, when Gary Gilmore played his part in the death pageant contrived to bring about his suicide. Before Gilmore there had been no execution since 1967, when Luis J. Monge was put to death in Colorado. But these wild western scenes may soon be reenacted in the South and other regions, for the Supreme Court has opened wide the door to capital punishment. John Spenkelink, whose death warrant has been signed by the Governor of Florida, faces the electric chair at this writing—May 24—and perhaps forty murderers, who have substantially exhausted possibilities of legal relief, may be executed this year.

Walter Berns’s book arguing for the death penalty is, if nothing else, timely. Today nearly 500 prisoners wait for death in more than twenty states, with over 300 of them concentrated in Florida, Georgia, and Texas. Thirty-five states have some kind of death penalty law, and Mr. Berns will be joined by many in his hopes that these laws will from time to time be applied.

This situation was hard to foresee in 1972 when the Supreme Court in Furman v. Georgia1 struck down a capital statute in a way that arguably invalidated every capital punishment law in the United States. While there was no clear line of majority reasoning in Furman, the case at least held that unchecked discretion to impose the death penalty results in arbitrary and capricious sentences that violate the “cruel and unusual punishments” clause of the Eighth Amendment. To some observers it seemed reasonable to believe that executions might be a thing of the past.

Instead, legislative devotees of death promptly began to draft bills that might meet the constitutional objections of Furman. These revised laws contained specifications of especially vile murders or outrageous circumstances surrounding a murder that would justify the death sentence. Murder during the rape of a child is a typical example of such specifications. Statutes of this kind from five southern states were scrutinized by the Supreme Court in a group of appeals in 1976. North Carolina and Louisiana, the Court ruled, had been overly enthusiastic in their draconic response to Furman. To cure the vice of unguided discretion these states had provided for mandatory capital punishment for a range of first-degree murders, perhaps on the theory that executing everybody would demonstrate a certain impartiality. But the Court struck down these statutes, holding that mandatory death sentences are intolerably harsh in the light of the evolved conception of cruel and unusual punishments.

Georgia, Florida, and Texas, whose new laws permit mercy where there are mitigating circumstances, had better luck in winning approval for their statutes. In cases from these states the Court rejected arguments that the death penalty was in all circumstances unconstitutional. While the Court agreed that the understanding of what is cruel and unusual changes with a refining of moral sensibility, it found that recent public expressions of moral feeling do not clearly condemn capital punishment. And, even conceding, as many have urged, that popular perceptions of decency and human dignity should not be conclusive, the Court still held that inflicting the death penalty is not without rational penological justification. As a response to some outrageous murders the killing of the murderer is not necessarily disproportionate and, in such cases, it expresses a felt need to exact retribution which is “neither a forbidden objective nor one inconsistent with our respect for the dignity of men.”2

So, to pass the constitutional test, a legislature must specify the kinds of murder to which the penalty may attach, and it must also provide that the death sentence need not be imposed even in such cases. When death is a possible outcome the judge or jury must inquire into mitigating circumstances. Some of these circumstances may be set out in the statute, but the sentencing authority cannot be restricted to considering particular categories of mitigation but must listen to any evidence the defendant may proffer to urge that the death sentence not be imposed.

Through this line of cases the rejection of unrestricted sentencing discretion with which we began in Furman has been transformed a few years later. Now the law rejects any restriction of the sentencing judge’s or jury’s discretion when he comes to consider mitigating circumstances. If these judicial gyrations can hardly be seen as an edifying or orderly development of principle, it is true that since 1972 many executions have been avoided by the striking down of particular statutes. But now that legislatures are learning how to cut laws precisely to the Court’s formula for constitutional killing, we must expect successful attacks on statutes to be rare. The legal battles of the next decade will be fought over the circumstances of particular cases rather than over the larger issues of principle.

Walter Berns’s book is an encomium to the Supreme Court’s nodding recognition of retribution as a justification for capital punishment. The tale, as Berns tells it, is a simple one. The nineteenth century saw the development of “enlightened” approaches to penal sanctions, which came to be viewed as justifiable only if they contributed to rehabilitation and deterrence. This has turned out badly. Hardly anyone is rehabilitated by prison and dangerous crime is increasing. The chief reason for this, Berns believes, is that the new approaches have lost sight of the importance of concepts of wrongdoing and responsibility. Decline of the churches, erosion of the family structure, and the disappearance from the classroom of such excellent works as McGuffey’s Reader have joined with the law’s materialistic weighing of deterrence and social protection to dim the moral judgments that should illuminate a criminal justice system.

Since private institutions no longer inculcate morality the state must get back into that business. By punishing the guilty the law implicitly praises those who are law abiding and satisfies their righteous anger at the commission of crime. This, Berns says, is a “demand that springs from some aspect of [our] souls.” To direct our moral anger at the criminal in this way is not to strip him of humanity and treat him as an object. Rather it is an ennobling recognition of his human responsibility. But anger at the worst kinds of murder can only be appeased by inflicting death. So capital punishment is needed “to remind us of the majesty of the moral order that is embodied in our law.”

Only a relatively few executions, Berns tolerantly concedes, are needed “to enhance the dignity of the criminal law.” These should be imposed for outrageously or wantonly vile killings. But they should be public, at least in the sense that a substantial audience of legislators and other public representatives should be present—required to be present, one hopes. Such public executions would “calm or moderate anger and impress upon the population the awesomeness of the moral order and the awful consequences of its breach.” However, Berns does not think that executions should be televised, since network impresarios tend to turn serious matters into vulgar spectacles. (But why not? Couldn’t Public Broadcasting cover electrocutions with imported BBC commentators? A close-up of the squirting blood and popping eyeballs could be omitted for the sake of the faint-hearted.)

Berns seems to have got hold of a few modern ideas about punishment in a muddled way and to have drawn absurd conclusions. The hopes of those who sought rehabilitation have, indeed, been dashed. Deterrence works imperfectly and unpredictably, though it has never been doubted that maintaining the criminal law and a system of punishment has an indispensable deterrent effect. There is, too, a renewed interest in justifying punishment by a concept of fairness that might be called retributivist in a very special sense of that term. But if there has been some clouding of the vision of the nineteenth-century reformers, it has nothing whatsoever to do with capital punishment. Berns’s notion that a better understanding of the aims of punishment ought to include a revival of the death penalty is rather like going back to rubbing two sticks together because we are unhappy about nuclear power.

Broadly speaking, we need to identify two mutually supportive kinds of justifications for punishment. One set is needed to justify a system of punishments at all; another for imposing particular punishments on particular individuals, which is not the same thing. The first set is utilitarian and contends that through punishments some offenders may be deterred from repeating crimes, that for a time the public will be protected from some dangerous people, and that those who have not yet committed crimes will be encouraged not to. But this will not serve as a complete theory for it runs into a difficulty in the case of the offender who can with reasonable confidence be predicted not to be likely to repeat a crime, as is true of many murderers. We do not need to lock him up to protect people or to deter him in the future and if we say we shall do it to encourage others not to commit crimes then we are open to the charge of using a person as an object for the benefit of others.

At this point it is possible to invoke a moral justification for punishing an individual that might be called retributive. Being a citizen imposes obligations in return for the benefits of social living. Assuming the system to be minimally just, one of these obligations is to comply with the criminal law. Failure to do so is taking an unfair advantage by allowing ourselves a license that membership in a community assumes we cannot allow to others. Punishment redresses the unfair advantage and, for this reason, the act of committing a crime is a sufficient justification for punishment even if the offender is in no need of rehabilitation.

This modest understanding of retribution helps to justify punishing offenders in general but not any particular degree of punishment. We might add that retribution or fairness includes a principle of proportionality so that, broadly speaking, more serious crimes should receive more serious punishments. Again, no particular punishment is validated by such a proposition, nor is the underlying theory more than remotely connected with the presence of anger. Righteous anger is certainly a recognizable and healthy emotion. But anger alone is never a good reason for doing anything bad to another person. There must be moral reasons to justify inflicting harm on people and the anger that we feel driving us to do this. Anger is not a justifier but itself needs justification. And if plain anger cannot justify any punishment then passionate anger cannot justify capital punishment. Berns’s call for equivalence or even correspondence between the frightfulness of the punishment and the intensity of our anger is rooted in the rawness of the unfiltered psyche rather than in any moral theory of retribution.

  1. 1

    408 US 238 (1972).

  2. 2

    Gregg v. Georgia, 428 US 153, 183 (1976).

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