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Agonies of Punishment

September 01, 1985

The death sentence, in all its aspects, has been examined in a series of articles by our staff writers --troubling reading for all Americans.

Lashed by criminal violence, beset by fear at home as in the streets, furious at the bestiality of many murders, the citizenry is solid in its support of capital punishment, impatient with delays in its implementation, hostile to any who seem to be instruments of that delay.

Support for the death penalty flows from a conviction, unproved and in all probability wrong, that only by killing the killers will society deter the spread of killing. And it flows from the agonized claim for retribution, if not revenge, made by the families and friends of the victims of horrendous crimes.

Disappointment with the pace of the courts is prevalent. Only in a handful of Southern states have the courts been quick and easy about confirming the ultimate penalty. In only 12 of the 37 states that sanction the death penalty have there been executions in the last decade; 44 of the 47 executions have been south of the Mason-Dixon line. No one has been executed in California since 1967. Nor has there been a rush to emulate the relative speed of the Southern courts, for the risk of a miscarriage of justice is enhanced by haste.

The legal problems are not simple. Because life is at stake, and because there is nothing of greater sanctity, the courts have had to pick their way through difficult terrain.

There is the risk defined by former California Supreme Court Justice Frank Richardson of converting "procedural fly specks into reversible errors." But the determination of intent to kill, the assurance of equal treatment by courts and juries, the protection against a bias that would seem to place the poor and blacks at greater risk of the gas chamber, are not fly specks.

"Nowhere is our exercise of conscientious judgment more critical than in those cases in which the ultimate sanction of death has been imposed," Rose Elizabeth Bird, chief justice of California, has said. There is no question about that.

Paradoxically, much of the delay in California is the fault of zealous advocates of the death penalty. The defective death-penalty initiative that they contrived in 1978, approved by 71% of the electorate, has diverted the courts and has yet to be useful in a single conviction. As standards for trial procedures and evidence become better established, however, there is the prospect that cases may move somewhat faster. But the backlog in California--about 30 cases awaiting final decision, about 30 appeals awaiting hearing, and 95 more pending the filing of written arguments--makes clear that death penalties will never be implemented as rapidly as other areas of the criminal-justice system.

Nor should they be.

A fundamental flaw of capital punishment is that it can assure neither a prompt nor a certain application of justice. That was a consideration in earlier federal and state court decisions finding it unconstitutional because of the cruel and unusual aspects of the punishment, and because of its uneven application.

But the ultimate injustice is what an execution does to society. Capital punishment "degrades and dehumanizes all who participate," the late Donald Wright, then chief justice of California, said at the time of the court's 1972 decision ruling the death penalty unconstitutional. The subsequent initiatives that have restored the death penalty make his statement no less valid. The degradation of which he spoke is evident these days in the parties at prison gates celebrating executions, and it is evident in the dismissal of some of the condemned with racial epithets designed to camouflage the humanity of each.

Each reader will draw his or her own conclusion from the research of our writers. For us, this compendium confirms the case against capital punishment. Its monetary costs are profligate, and cannot be reduced without further imperiling constitutional rights. It diverts courts from other pressing business. Its results are uncertain. It cannot ever be equally and fairly applied. It provides no protection for the public, a costly distraction when incarceration would provide adequate protection. Above all, there is the corrupting effect of the gas chamber, of the lethal injection, of the hangman's noose, of the firing squad, of the electric chair on those who activate those instruments, whether they be the hooded executioner, the juror or the citizen who votes for capital punishment.

The fabric of a society is measured most accurately by how it responds to outrage, how it channels its fears and anger, the means that it chooses for protecting the public good. So most nations that share the values of most Americans no longer kill to implement the law. That may not satisfy the urge for revenge, itself a deadly corrosive to justice. But it is consistent with the rule of law.

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