The Courts, the Constitution, and Capital Punishment

By Hugo Adam Bedau | Go to book overview
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The Issue of Capital Punishment

In February 1967, the President's Commission on Law Enforcement and Administration of Justice published its report, The Challenge of Crime in a Free Society. Supported by a third of a million words and dozens of graphs and tables, the commission advanced more than 200 specific recommendations touching every aspect of crime and criminal justice in the country. Many readers of the report will be shocked to discover that the perennial problem of capital punishment has been disposed of in barely one page! The commission's solitary recommendation could hardly have been briefer:

The question whether capital punishment is an appropriate sanction is a policy decision to be made by each State. Where it is retained, the type of offenses for which it is available should be strictly limited, and the law should be enforced in an evenhanded and nondiscriminatory manner, with procedures for review of death sentences that are fair and expeditious. When a State finds that it cannot administer the penalty in such a manner, or that the death penalty is being imposed but not carried into effect, the penalty should be abandoned. 1

There is some irony in the disproportionate public attention lavished upon the crime of murder and the issue of capital punishment (widely dramatized recently in the best-selling "nonfiction novel" by Truman Capote, In Cold Blood) and the near dismissal of the entire subject in the commission's report. Yet this relative neglect of a major social issue by the most distinguished group of public servants ever assembled under a mandate to scrutinize crime and punishment in America is not really surprising, if one is aware of the relevant facts over the past several decades. All one must do is review the practice of capital punishment in terms of the volume of capitally punishable crimes, the annual number of executions, the trends toward final disposition of death sentences and toward abolition of death penalties, and the attitudes of the public and responsible spokesmen. 2 Once these facts are grasped, the position of the commission and the familiar arguments for and against abolition can be viewed in a somewhat more intelligible light.

Murder, first of all, is by no means the only capital crime: treason, rape, kidnapping (with or without ransom), robbery, burglary, carnal knowledge, perjury in a capital case, and some two dozen other crimes (against property, persons, or the state) are all punishable by death somewhere in the United States. Few, however, carry a mandatory death penalty; nowhere today is either murder or rape, for instance, punishable by death except at the discretion of the


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