Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case

257 Pages·2004·1.32 MB·English

by  Hugo Adam Bedau

Debating the Death

Penalty:

Should America have

Capital Punishment? The

Experts on Both Sides

Make Their Best Case

Hugo Adam Bedau
Paul G. Cassell,
Editors
OXFORD UNIVERSITY PRESS
Debating the Death Penalty
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Debating the Death

Penalty

•

SHOULD AMERICA HAVE CAPITAL PUNISHMENT?

THE EXPERTS ON BOTH SIDES MAKE

THEIR BEST CASE

EDITED BY
Hugo Adam Bedau and Paul G. Cassell
1

2004
1

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Library of Congress Cataloging-in-Publication Data
Debating the death penalty : should America have capital punishment? : the experts on
both sides make their best case / edited by Hugo Adam Bedau & Paul G. Cassell.
p. cm.
Includes index.

ISBN 0-19-516983-2

1. Capital punishment—United States. I. Bedau, Hugo Adam. II. Cassell, Paul G.

HV8699.U5D635 2004

364.66'0973—dc21 2003049868

Printing number: 9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
Contents

•

Introduction vii
1 Tinkering with Death 1
—Alex Kozinski
2 An Abolitionist’s Survey of the Death Penalty in
America Today 15
—Hugo Adam Bedau
3 Why the Death Penalty Is Morally Permissible 51
—Louis P. Pojman
4 Close to Death: Reflections on Race and Capital
Punishment in America 76
—Bryan Stevenson
5 Truth and Consequences: The Penalty of Death 117
—Joshua K. Marquis
6 Why the United States Will Join the Rest of the World
in Abandoning Capital Punishment 152
—Stephen B. Bright
7 In Defense of the Death Penalty 183
—Paul G. Cassell
8 “I Must Act” 218
—George Ryan
Contributors 235
Acknowledgments 237
Index 238
v
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Introduction

•

The death penalty has been a commonplace in Western civilization for
more than two thousand years. Not until some two centuries ago,
however, was its use and abuse seriously challenged in Italy, France,
and England. Since then capital punishment has been a steady topic
of debate and controversy, in Europe as well as in the United States.
Whether discussing the Nuremberg tribunals of the 1940s in postwar
Germany or the Rosenbergs’ trial and execution in the 1950s, argu-
ments over the death penalty continue to reverberate in the halls of
public debate. Today, opponents of execution point to recent cases in
which innocent prisoners—like Rolando Cruz in Illinois in 1995—nar-
rowly escaped being unjustly executed. Supporters of the death penalty
point to terrible crimes—such as the mass murder in Oklahoma City
by Timothy McVeigh also in 1995—that they believe cry out for the
death penalty as the only just punishment.
Among many recent events involving the politics of capital punish-
ment, two in particular have received national publicity.
• In his final days in office early in 2003, Governor George Ryan
of Illinois pardoned four death row prisoners and commuted
to life imprisonment all 163 of the others on the state’s death
row. The magnitude of this unprecedented exercise of execu-
tive clemency earned the praise of death penalty opponents
and simultaneously created a firestorm of protest. Ryan de-
clared that he was deeply troubled by the flaws in the state’s
vii
viii debating the death penalty
criminal justice system that led to sending innocent men to
death row. While some of his admirers nominated him for the
Nobel Peace Prize, his detractors painted a picture of a corrupt
politician seeking public favor and redemption.
• Supporters of the death penalty have found their leading na-
tional spokesman in the person of Attorney General John Ash-
croft. A dramatic example of his desire to use the death penalty
occurred in late 2002. Residents in Washington, D.C., and
nearby communities had been terrorized by a mysterious
sniper. When suspects were arrested, the attorney general
steered their prosecution away from Maryland (where the
death penalty has recently been under serious attack) and from
the District (an abolition jurisdiction) to Virginia, where the
death penalty enjoys widespread support. Ashcroft’s admirers
praised him for his forthright pursuit of capital punishment;
his detractors were outraged at his political rationale for fa-
voring one jurisdiction over the others.
These are but two from scores of events around the country that
concern the current use and the status of the death penalty. This vol-
ume (which had its origin in a spirited public debate held at the Grad-
uate Center of City College in New York and funded by a grant from
the Annenberg Public Policy Center of the University of Pennsylvania)
provides the reader with an unusual opportunity to review the whole
range of issues raised by any serious discussion of the death penalty.
The eight contributing authors bring different perspectives and
strengths to the table. Two are judges: Alex Kozinski sits on the federal
Court of Appeals for the Ninth Circuit in San Francisco; Paul G. Cas-
sell is on the bench of the federal district court in Salt Lake City. Both
judges favor the death penalty. Three of the contributors are practicing
attorneys: Bryan A. Stevenson is the executive director of the Equal
Justice Initiative of Alabama, in Montgomery, and Steven B. Bright is
the director of the Southern Center for Human Rights in Atlanta. Both
oppose the death penalty. Joshua K. Marquis, a district attorney in
western Oregon, favors it. Two of the contributors are philosophers:
Hugo Adam Bedau (against), retired from the faculty of Tufts Univer-
sity, and Louis Pojman (for), on the faculty of the U. S. Military Acad-
introduction ix
emy. The eighth contribution is the text of former Illinois Governor
George Ryan’s January 11, 2003 speech announcing his commutation
of all of Illinois’s death sentences. Ryan is a recent convert to abolition.
The eight essays fall neatly into two groups of four in favor of and
four against the death penalty. Taken together, the authors raise all the
main questions that deserve to be addressed in any thoroughgoing and
reasonably comprehensive discussion of the death penalty in America
today.
What are those questions? Here are a dozen of the most important
ones:
• Does the death penalty deter better than long-term im-
prisonment?
• How important is it to decide the question of deterrence?
• Have innocent defendants been convicted, sentenced to death,
and executed?
• Are reforms possible that would significantly reduce the risks
of wrongful execution?
• If a death penalty system is more expensive than a system of
long-term imprisonment, why pay the extra cost?
• Can the death penalty be best defended on retributive
(backward-looking) grounds or on utilitarian (forward-
looking) grounds?
• Is the death penalty unfair—arbitrary and discriminatory—to
racial minorities and the poor?
• How trustworthy is the evidence on which the controversies
over deterrence, racial unfairness, and wrongful executions
turn?
• Can the death penalty be defended on the ground that nothing
else brings closure to the agony of the victim’s surviving
family?
• Where is the current moratorium movement headed?
• What role should firsthand stories and anecdotes about mur-
ders, murderers, and their execution play in a rational discus-
sion of the death penalty?
The strengths of this book will be found in two features. First, the
essays together provide a very broad introduction to a very large topic.