License to Kill

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.

Certainly there is a popular feeling that the worst killers deserve to die. Sons of Sam, terrorists, or rapists of children who kill their victims excite our indignation and call up a passion for revenge. But, while such indignation is not only natural but necessary to sustain a system of punishments, the impulse to inflict equivalent pain or worse must, as with all emotions, be subjected to utilitarian and moral tests before it can be received as a principle to guide institutions. To say that a murderer deserves to die may be acceptable in the sense that we might not feel very grieved if he dropped dead. But to impose capital punishment is a moral judgment made in the name of an institution and crucially different from the mere absence of sorrow over a murderer’s death.

Society already expresses abhorrence of murder by the process of accusation, trial, conviction, and lengthy if not permanent imprisonment. Why this is not enough for Berns and the many who think, or rather feel, as he does is unclear. In part he seems to rest on a utilitarian prediction (though he tries to pass it off as retributivist) that anything short of the death penalty does not sufficiently appease anger. When squeezed, this rhetoric yields little juice. Is he afraid that the victim’s relatives will take the law into their own hands? Does he anticipate some communal psychic disorder stemming from frustration at seeing murderers left alive? No social experience verifies these fears. Berns also talks of insufficiently vindicating the majesty of the moral order. But, if this is not an argument about specially effective deterrence (and Berns is clear that it is not), what can it mean? Will the moral order go and sulk in a corner if we do not sufficiently vindicate its majesty?

At other times Berns appears to argue that some disharmony in the universe created by murder cries out for restoring the balance by the killer’s death. This invocation of a mystical sense of blood is certainly impossible to refute. It is equally impossible to make any sense of it, except as a psychic phenomenon. Berns relies heavily on Shakespeare, whose poetic vision, he claims, particularly as expressed in Macbeth, validates the need for death to be answered by death. He finds this grander than what he characterizes as the base materialism of that opponent of capital punishment, Camus. That Shakespeare is a greater writer than Camus is then offered with some seriousness by Berns as a clinching argument for capital punishment.

This is absurd, but if literary champions must be put into the list we can point out that Macbeth is much more a reflection on guilt than a homily on the death penalty and that the only play Shakespeare wrote that is centrally concerned with capital punishment, Measure for Measure, is a study in insecurity, lust, and cruelty dressed in the robes of justice. Indeed, the psychopathology of rage and the vendetta was a dominant theme of the Elizabethan and Jacobean dramatists. Reading Shakespeare, Turner, Middleton, Webster, and Ford can offer only uncomfortable instruction for the advocates of execution. But Professor Berns seems to have been as sparing or unperceptive in his literary reading as with his philosophical studies.

Whether the death penalty is an additional deterrent is a question on which econometricians and sociologists are locked in deadly combat and it seems unlikely that any convincing answer will ever emerge. But Berns, like Kant and many millions of Americans, just thinks eyes and teeth should be exactly exchanged and cares little about deterrence. There are of course those who would oppose the death penalty even if it could be clearly shown to be a substantial additional deterrent because they think it is morally indefensible for the state to kill people. It is not necessary, however, to take so absolute a position in order to condemn the imposition of death sentences in America as immoral and unconstitutional.

Since we are talking about killing people we may properly place the burden of proof on the advocates of the death penalty to furnish some convincing justification. As to general deterrence Berns concedes that they cannot. This leaves the possibility of utilitarian arguments in special situations such as the execution of terrorists. These arguments are speculative at best. It is said that in 1923 the government of the Irish Free State stamped out political terrorism by ruthless counter-terror, including summary executions (hardly capital punishment, by the way). But most movements of rebellion or resistance have not been quashed in this way.

The recent Israeli revival of the death penalty seems particularly ill-chosen and ironic. If the Israelis proceed to the execution of terrorists with some due process of law it will take time, during which there will be the strongest motive for the prisoners’ comrades to seek hostages. If terrorists are summarily executed their glow of martyrdom will no doubt fuel fresh assaults. Of all people Mr. Begin should know better. The hangings of the Stern group terrorists Bet Zouri and Hakim in 1947 inspired Jewish militants, as the hanging of Kevin Barry gave the IRA their best martyr song, and as the execution of Arab prisoners would inspire the Palestinians.

This failure to produce any convincing arguments having to do with social benefit sufficiently collapses the case for capital punishment. But it is doubtful whether any utilitarian case could be compelling enough to outweigh the inequities and discrimination (probably ineradicable) in the imposition of death sentences in the years since Furman. The very statutes approved by the Supreme Court are deeply suspect on their face. The Texas law, perhaps the worst of them, allows the death sentence when the jury is satisfied that the killing was deliberate—no more than a basic element of all murders—and that there is a probability that the defendant “would commit criminal acts of violence that would constitute a threat to society.”

Prediction of future violence or future harmlessness is in many cases notoriously difficult. It is in fact rare for released murderers to commit another murder, but the Texas statute not only asks the jury for a prediction of violence (rather than murder) but seemingly ignores the state’s power to prevent such future acts by incarceration. It is not even clear whether the jury must find that the defendant would be violent if he were immediately released or that he would be violent if he were released from prison in twenty-five years. Such an attenuated prediction would be ludicrous but it may be the yardstick of death in Texas.

If the very standards for imposing the death sentence are vague and inherently unreliable (though approved by the Supreme Court), the actual pattern of sentencing raises further questions of unequal treatment. Since 1972 the percentage of blacks convicted of murder who have been sentenced to death is actually rather less than the percentage of white murderers. But that figure tells us little until we inquire into the race of the victims. Information on this can be found in a study, still in progress, by William J. Bowers and Glenn L. Pierce of the Center for Applied Social Research at Northeastern University.

Under Florida’s new statute 7.6 percent of convicted murderers have been sentenced to death when the victim was white but only 0.7 percent when the victim was black. No whites have been sentenced to death for killing blacks in 118 such cases in Florida, but out of 433 convictions of blacks for killing whites there was a death sentence rate of 21 percent. In Texas no whites were sentenced to death for killing blacks in 173 such cases, but death was imposed in 10 percent of the 517 cases of blacks killing whites. The figures are as disturbing in the other states studied—Alabama, Georgia, and Ohio. The lesson is that if blacks are not disproportionately sentenced to death it is not because America has been gripped by a passion for equality equivalent to Walter Berns’s passion for death. It is rather that killing blacks doesn’t count. Fidelity to principled decision-making imposes an obligation on the Supreme Court to consider the information compiled by Bowers and Pierce.

Professor Berns does not concern himself with such matters. Close arguments and attention to facts are not his forte. Indeed, his very short book has little to offer even about the death penalty other than incantations about purging anger and the majesty of the moral order. He does ramble on, though, about features of the legal system that he supposes are somehow connected with the death penalty. Part of the general moral rot, he tells us, is that judges are reluctant to punish criminals but rather blame society for crime. This makes one wonder if Berns has ever been near a criminal courtroom in his life. Where are these judges? Can he be talking about the ones all criminal lawyers know so well who impose the harshest sentences in the Western world?

Habeas corpus and other post-appeal procedures, according to Berns, endlessly spin out cases and postpone punishment while never showing that a murderer was not guilty. This is nonsense. First, those convicted of murder are almost always kept in prison while post-conviction proceedings go on. Second, the aim of post-conviction proceedings is not primarily to reopen questions of factual guilt, though this does sometimes happen. After the first appeal, subsequent proceedings such as habeas corpus are aimed at reviewing allegations of fundamental constitutional errors at the trial that have not earlier been adequately reviewed. The purpose is to ensure that the defendant has had or will get a fair trial under the Constitution, and Professor Berns should tell us what he finds wrong with that. Finally, if the proceedings are successful (and this will be infrequent) the result is a new trial for the defendant and not his release. The suggestion that such a careful review of the fairness of a trial should be abandoned in capital cases reveals an indecently avid rush to kill people and would certainly lead, if adopted, to many miscarriages of justice. The following are two examples out of thousands.

In DeMarrias v. United States³ an American Indian had been convicted of murder. His lawyer, who had taken all his money, advised the court that an appeal was meritless and, on that basis, the conviction was affirmed. Later a habeas corpus review reinstated his appeal and the conviction was reduced to manslaughter since the evidence was insufficient to justify the murder conviction. As the court pointed out, grave injustice would have resulted but for the habeas corpus procedures.

In Jurek v. Texas⁴ the Supreme Court upheld the validity of the objectionable Texas capital punishment statute discussed above. All Jurek’s state appeals were denied. But in April 1979, the federal Court of Appeals for the Fifth Circuit, hearing Jurek’s appeal from denial of habeas corpus, ordered a new trial on the ground that his confession was involuntary. This was not a “technical” finding of a Miranda-rules violation but a holding that the confession was extracted in such a way as to make its credibility suspect.

Jurek is a good example of the ambiguities of murder cases and the dangers of yielding to Professor Berns’s appetite for snappy executions. We could recount the horrific aspects of the case by saying that the prosecution alleges that Jurek kidnapped a ten-year-old girl from a playground, made some sexual assault on her, and drowned her in a river. We could also say that Jurek has a verbal IQ of 66, cannot tell how many weeks are in a year or give change for a dollar. It is possible that he suffers from brain damage. There was no evidence of a sexual attack on the girl except in the confession taken from him in a way that made it involuntary and unreliable. Without a habeas corpus procedure he would probably have been executed by now.

We must leave it to those who advocate the death penalty to tell us whether Jurek merits it if he did what Texas says he did. A jury thought so and quite likely will come to the same conclusion at the retrial. But Professor Berns’s implicit call for the elimination of post-appellate review is, in the light of such cases, a frighteningly reckless proposal.

Reading Berns’s book powerfully evokes righteous anger and moral indignation. His retributivist theory turns out on inspection to consist of either disguised and unconvincing utilitarian propositions or mystical calls for death that deserve psychoanalytic rather than philosophical refutation. It is chilling to be reminded that when the Supreme Court in 1976 made a casual reference to retribution as the ultimate constitutional savior of the death penalty it was to this set of disreputable arguments that it was appealing. There is in truth no case for capital punishment and Professor Berns at least does us the service of splendidly demonstrating this.