The Facts of Death
It would be some time, however, before the Supreme Court was ready to speak to the constitutionality of the death penalty. Constitutional law develops slowly. Its larger issues emerge only after a case-by-case dialogue between the Court and lawyers, legislatures, lower courts, and public opinion signals that they are ripe for resolution. Writing about the Supreme Court and capital punishment in 1962, Professor Bickel unhappily concluded that "no sort of colloquy can be said to be in progress, and barring spectacular extraneous events the moment of judgment is therefore a generation or more away."1
But "a generation or more" is only a short time in the history of the death penalty. Although its origins are lost in obscurity, imposition of death as punishment for violation of law or custom, religious or secular, is an ancient practice. We do know that men killed to avenge themselves and their kin long before the conduct which provoked retaliation was considered a wrong to the community; and that initially the criminal law was used to compensate for a wrong done to a private party or his family, not to punish in the name of the state.
The idea of crime as an injury to the interests of the society came later and implied a general interest in regulat-