PREFACE. Oxford University Ress. Copyright by Hugo Adam Bedau

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2 Oxford University Ress Oxford New York Athens Auckland Bangkok Calcutta Cape Town Dar es Salaam Delhi Florence Hong Kong Jstanbul Karachi Kuala Lumpur Madras Madrid Melbourne Mexico City Nairobi Paris Singapore Taipei Tokyo Toronto and associated companies in Berlin ïbadan Copyright by Hugo Adam Bedau hblished by Oxford University Ress, Inc. 198 Madison Avenue, New York. New York Oxford is a registered bademark of Oxford University Ress. Inc. Ali rights resewed. No part of tbis publication may bc reproduced. stored in a rehieval system, or ûansmitted, in any fonn or by any means. electronic, mechanical, photofopying. mording or othenvise, mthout the prior permission of Oxford University Ress. Library of Congress Cataioging-in-Publication Data The kath penalty in America-current controversies / edited by Hugo Adam Bcdau. p. cm. Includes bibliographical refennces and index. ISBN û CapiLai punishment-united States. 1. Bedau, Hugo Adam. HV8699.U5D '6'09734~ Rinted in the United States of America on acid-free paper PREFACE The death penalty continues to make headlines across the nation, perhaps more than at any time in this centuty. Just consider two of the high-profile cases during 1995, the brisk trial of Susan Smith in South Carolina for murdering her two children and the seemingly endless trial of O. J. Simpson in Los Angeles for the murder of his ex-wife and her male friend. The national news media gave the nation a day-by-day account of each case from the courtrooms. For Simpson the prosecutors ded out the death penalty before the defendant ever entered the courtroom. Smith, however, faced from the start a prosecutor openly seeking her death; fortunately for her, the jury thought otherwise. Or consider the extensive media campaign during 1995 waged on behalf of Mumia Abu-Jamal, former Black Panther and radical joumalist, under a death sentence for murdering a policeman in Philadelphia in s he really innocent, as his friends and champions insist? Innocent or guilty, did he get a fair trial and review by the appellate courts? Each year for two decades, beginning with the death sentence and execution in Utah of Gaxy Gilmore in 1977, we have been bombarded from coast to coast with details about the latest gruesome murder or serial killings (Ted Bundy in Florida, John Wayne Gacy in Illinois) and the culminating events in such cases-trial, conviction, sentencing, and execution. if one wants to probe more deeply, however, getting behind television sound bites, the often sensationalist reports in the print media, and the posturing of politicians, one will discover that there is a vast array of material in our libraries to help answer more accurately the familiar questions: 1s the death penalty an effective deterrent? Why does it take so long kom sentencing to execution? How do prosecutors and juries decide which murderers to sentence to death and which to life in prison? Are the innocent ever wrongly arrested, tried, convicted, sentenced to death-and executed? 1s the death penalty administered in a racially biased manner? if so, can such bias be avoided? Why did the Supreme Court d e that the death penalty is not an unconstitutional ''cruel and unusual punishment"? These and a host of other questions arise whenever the death penalty is discussed or senously debated. Fortunately. good answers to most of them lie waiting in print for those who know where to look. Unfortunately, even those who do cannot get these answers without access to a major university library. Most of the relevant information appears in law reviews, scholarly joumals, government documents, local news stones, and unpublished memoranda of various sorts, almost none of which can be found on the shelves of the local public or coiiege library. The purpose of this book is to remedy that problem, as much as a single volume can, by reprinting the essential material and providing a guide to locating the bulk of the rest.

3 444 The Death Penalty: For and Against AV and in Jewish piety is a reverent substitution. Jehovah and Yahweh are hypothetical reconstructions of the name. Bailey (39 and 107) suggests that Yahweh made a mistake; that if vengeance against Cain had been per~~itted, then "violence in the earth" would not have escalated so as to necessitate the Deluge. This wouid take more argument than either Baiiey or Genesis provides. Genesis 6:6 says that what God regretted was having created mankind, not having protected Cain. Bailey also makes much of the claim (40, 70) that narrative texts should not be taken as bearing moral instruction. This is an assertion without an argument. Of course each genre of literahire should be read in its own terms. Baiiey wouid have &ne well to distinguish more than he does between Genesis 9 and the Mosaic civil code, or between "moral" and "civil" texts. But narrative can be the vehicle of moral instruction, especidly in settings caiied etiological i.e., texts which deal with why and how things came to be, or in texts exhibiting God's or Jesus' character. 6. Lamech's reference to Cain should not mislead us to think that he was escalating what had been said before by Yahweh. (a) The vengeance threatened in Genesis 415 was to be inûicted by Yahweh, but Lamech avenged the threat of 4: 15 was successful in deterring hann to Cain, and was not canied out. 7. Some have argued that "by man shall his blood be shed is a simple future rather than an imperative; a prediction but not an authorization. That is too littie. God avows that the retnbutive p ess is under his rule: "1 will require a reckoning." Yet, what God thus owns is an extant practice; he does not create a new institution nor decree a new duty. 8. Bailey, Under "retribution" we shall return later to the question of emotion. 10. Cf. Karl Barth Chwch Dogrnatics (Edinburgh: Clark, 1961), Vol. m/4, p. 442f.: "Which category of particularly great sinners is exempted from the pardon effected on the basis of the death penalty carried out at Calvary? Now that Jesus Christ has been nailed to the cross for the sins of the world, how can we stiü use the thought of expiation to establish the death penalty?" 11. The first narrative in chapter 8 is missing in some of the ancient manusaipts, and some doubt that it was originally part of the Gospel; but even those scholars who doubt that these verses were origindly in John's Gospel tend to gant that it nonetheless represents an authentic tradition. 12. That the persons bearing the incriminatirtg witness shouid cast the first stone is part of the provision of Deuteronomy 17: Cf., note 5, the reference to Bailey's exaggerated dislike for seeing moral meankg in narrative texts. 14. "... the opponents of capital punishment offer no theory of civil governent..."; Gordon H. Clark, "Capital Punishment and the Bible," Christianity Today, Febniary 1, 1960, p. 10. As a rationalistic philosopher, Clark felt that to have the right to say a nmg about human justice you must have a theory covering everything in the field. 15. Cf. my Christian Wimess to the State (Newton, Kans.: Faith and Life Press, 1964), 6ûff, 16. The above argument has to do with authority in the sense of the state. Sober social science will add that there are also always other kuids of nonstate authority holding societies together; the orders of the clan, the marketplace, the school, religion, entertainment Cf. my Politics of Jesus (Grand Rapids: Eerdmans, 1972), pp. 207ff. 18. Jean Lasserre, "The 'Good' in Romans 13" in Donald Dumbaugh, ed., On Earth Peace (Elgin, Ili.: Brethren Press, 1978), , do offer some of this in my Christian Wimess to the State, (note 15 above), and in my Priestly Kingdom (Notre Dame, Ind.: Notre Dame University Press, 1985), The Death Penalty Once More ERNEST VAN DEN HAAG People concemed with capital punishment disagree on essentially three questions: (1) 1s it constitutional? (2) Does the death penalty &ter crime more than life imprisonment? (3) 1s the death penalty morally justifiable? 1. Is The Death Penalty Constitutional? The fifth amendment, passed in 1791, states that "no person shall be depnved of life, liberty, or property, without due process of law." Thus, with "due process of law," the Constitution authorizes depriving persons "of life, liberty or property." The fourteenth amendment, passed in 1868, applies an identical provision to the states. The Constitution, then, authonzes the death penalty. It is lefi to elected bodies to decide whether or not to retain it. Ilie eighth amendment, reproducing almost verbatim a passage from the English BiU of Rights of 1689, prohibits "cruel and unusual punishments." This prohibition was not meant to repeal the fifth amendment since the arnendments were passed simultaueously. ''Cruel' ' punishment is not prohibited unless ' 'unusual' ' as weil, that is, new, rare, not legislated, or disproportionate to the crime punished. Neither the English Bill of Rights, nor the eighth amendment, hitherto has been found inconsistent with capital punishment. A. Evolving Standards Some commentators argue that, in Trop v. Dulles, the Supreme Court indicated that "evolving standards of decency that mark the progress of a maturing society" ailow courts to declare "cruel and unusual," punishments authorized by the Constitution, However, Trop was concerned with expatriation, a punishment that is not specincally authonzed by the Constitution. The death penalty is. Trop did not suggest that "evolving standards" could de-authorize what the Constitution re- Reprinted by permission of the publisher, from University of California-Davis Low Review, 18. no. 4 (summer 1985):

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