Today's death penalties: a painless, blameless system Executions: The surge has been encouraged by removing human accountability.

The Argument

July 21, 1996|By Thomas Raup | Thomas Raup,SPECIAL TO THE SUN

Awareness among Americans of the horror of state-inflicted death has been rekindled by a dramatic book and its movie version. However, too few recognize the extent to which the surge of executions has been caused by stifling human accountability.

Before a national moratorium on executions in 1967, the use of capital punishment was becoming rare in the United States. Juries were increasingly unwilling to condemn murderers to be hanged or gassed or electrocuted. The Supreme Court applauded the jury's role in death cases as voicing "the evolving standards of decency that mark the progress of a maturing society." Executions dropped from an average of 167 yearly in the 1930s to only one in 1966. Capital punishment seemed to be on the way out.

The moratorium was lifted by the Supreme Court in 1976. There has been a surge in death verdicts and executions. This is attributable in part to higher levels of violent crime since the mid-80s, but there are at least two additional causes:

* The execution process has been made less repugnant. A hood over the head, a diaper applied, arms and legs firmly strapped ... any sign of terror or suffering is hidden. And with the advent of lethal injection, a preparatory drug renders the condemned unconscious and subsequent ones successively shut down body functions.

* As a consequence of a strange U.S. Supreme Court decision in 1972, the jury no longer must agonize over the decision between life and death, so death verdicts have become far easier to obtain. That development is poorly understood yet is vitally important.

Any serious discussion of current executions in American should begin with "Dead Man Walking" (1993, Random House, 192 pages, $21), Sister Helen Prejean's superb book. The nun who writes with a powerful secular pen has caused the issue to be debated again.

A major theme in Prejean's book is that, when the death penalty is imposed today, no one is responsible; everyone is just following the law. Traditionally, in death cases the buck stopped with the jury. The prosecutor could say "Let the jury decide," and the governor "The jury has spoken." The Supreme Court effectively yet unwittingly has removed the jury from the equation, leaving no one at the helm.

The 1967 moratorium was imposed to permit U.S. Supreme Court consideration of a series of constitutional challenges to capital punishment, culminating in Furman vs. Georgia, decided in 1972. At the nub of the cases were arguments that the death penalty had become a cruel and unusual punishment and that it was discriminatorily imposed upon the poor and minorities.

The Furman court was badly fragmented, with all nine justices writing separate opinions covering 118 pages. A bare majority of five justices struck down the Georgia and Texas death penalty statutes, but there was no consensus on a constitutional justification for the result.

Two conclusions could be deciphered from this jurisprudential morass. (1) At least six justices firmly rejected the notion that capital punishment violated the ban on cruel and unusual punishment, not surprising in that the Constitution specifically acknowledges the practice. (2) A new type of death penalty law might obtain approval of the same six, provided that jury discretion were restricted in such a way that poor and minorities were not discriminated against. Only two of those justices actually favored such a constriction of traditional jury discretion. The other four were satisfied the states had the constitutional power to enact such laws, although those four justices considered it most unwise and believed that the factors pertinent to a death verdict "are too complex to be compressed within the limits of a simple formula."

Even though only two justices wanted the result, the ultimate message of Furman is that the death penalty can survive only if jury discretion is severely limited. Georgia promptly crafted a new law designed to capture approval of the six justices.

Fool-proof laws

That new law was endorsed by the Supreme Court in 1976, and became the model throughout the nation. The law listed classes of particularly serious intentional murder. In those cases the death penalty is required unless the jury finds overriding considerations favorable to the defendant. A study has indicated that in Pennsylvania 85 percent of all intentional murders now qualify, and this is typical of most capital punishment states.

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