Facing the Death Penalty: Essays on a Cruel and Unusual Punishment

Foreword

Foreword HENRY SCHWARZSCHILD Speaking on the floor of the House of Commons in Ottawa in 1976 in support of a bill to abolish capital punishment in Canada, then-Prime Minister Pierre Trudeau reminded the members of the Commons: "It is not open to anyone among us to take refuge in the comforting illusion that we are debating nothing more than an abstract theory of criminal justice.... I want to make it very clear that if the majority of the Honourable Members vote against abolition , some people are going to be hanged.... [I]t is inevitable that the defeat of this bill would eventually place the hangman's noose around some person's neck. To make that quite clear: if this bill is defeated, some people will certainly hang" (press release, Office of the Prime Minister, 15 June 1976). This book is melancholic testimony to Trudeau's angry but realistic wisdom. Canada did, then and there, abolish the death penalty, in the same year that the U. S. Supreme Court handed down a series of complex decisions on the constitutional issues that executions necessarily raise. These decisions in effect reopened the execution chambers of this country. As a result, we have since that time executed well over a hundred prisoners (by firing squad, in the electric chair, in the gas chamber, and by lethal injection), and we have a death row population easily in excess of 2,100. That condemned population grows larger by about two hundred persons per year. ix x HENRY SCHWARZSCHILD Some thirty-seven states and two federal jurisdictions have death penalty laws on their books. Gregg v. Georgia (428 U.S. 153 [1976]), its companion cases, and a seemingly endless series of subsequent decisions on capital punishment are dense and contradictory rationalizations of constitutional doctrine, statutory texts, social objectives, criminological analysis, moral theory, psychological assumptions, and political judgments . And the prevailing majority on the Court has become ever more impatient, even surly, at being compelled, by advertence to their own rules, to act (or to refuse explicitly to act) on each and every capital case that is otherwise at the point of exhaustion oflegal remedies. The justices are acutely discomforted by such constant reminders that their decisions "place the hangman's noose around some person's neck." The effort to abolish the death penalty is not new. It was begun in modern times in the Enlightenment (Cesare Beccaria, Benjamin Rush), but its antecedents go back at least to Talmudic times. In the 1840s, it came close to succeeding in this country, but was largely defeated in an upsurge offundamentalist religious reaction. The Sacco and Vanzetti case of the 1920s revived abolitionist passions, but the death penalty reached its modern peak in the mid-1930s (199 executions in 1935), and did not significantly recede until the early 1960s. The civil rights revolution of the 1960s, seeking to undo the vestiges (and they were racist vestiges, indeed) of what remained of capital punishment in the United States, for the first time mounted a frontal challenge to the constitutionality of the death penalty. This attack sought to persuade the Supreme Court to declare capital punishment an inherent violation ofthe Eighth Amendment's prohibition ofcruel and unusual punishment and, as actually applied, a violation of the equal protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment. It was a brilliantly led and executed campaign, but it failed, perhaps by an accident of history: the tidal shift from the Warren court to the Burger court intervened. Gregg and its sequelae were the governing result, and the execution by a volunteer firing squad of Gary Mark Gilmore in Utah in 1977 marked the resumption of the executioner's deeds. The abolition of capital punishment is not a preoccupation merely of isolated or marginal people. Every major religious denomination (the Roman Catholic bishops, the National Council of the Churches of Christ in the U.S.A. and its constituent Protestant FOREWORD xi elements [including the Episcopal church, the Presbyterians, the Methodists, the Baptists, the Lutherans, and the United Church of Christ], and the major Jewish religious groupings), the national minority-community organizations, the human rights and civilliberties agencies, international bodies (the United Nations, the Council of Europe, and others), all oppose the death penalty, as do thoughtful lawyers, physicians, writers, academics, artists, and community activists all over the country. But the majority of the public, as...