Rolling the Dice for Death

About 1,450 convicted murderers, including 170 in California, are awaiting their appointments with the executioner in the United States. To that record number, about 250 candidates for death will be added each year, and the rate of executions is expected to rise sharply; 22 took place in the past 12 months, and that figure may more than double in 1985.

The great experiment is proceeding apace, constitutionally sanctioned by the U.S. Supreme Court, to show that official killing by the state is the most satisfactory method of reducing unofficial killing and protecting society. Whether the death penalty is a deterrent has long been sharply disputed, and studies on each side of the question have been contested. The Supreme Court itself has observed that the deterrent value of capital punishment has never been proved.

The court found in 1972 that capital punishment was unconstitutional because of the haphazard and arbitrary way it was imposed by the states. As a result of that decision, many states revamped their laws to conform to the new standards laid down by the court, and in 1976 the court upheld the death penalty on the theory that it could be applied under uniform, rational standards.

Reality, as we have noted before, mocks that theory. It is beyond reason to assume that all 1,450 prisoners on Death Row will meet their tentative dates with the executioner. But how then will the courts make certain that those selected for death will be chosen in a fair and rational manner? That is an impossible task. The result may turn on mere chance. Only days ago a man went to his death in Georgia’s electric chair because an appeals court by a 6-6 vote rejected one of his legal challenges on the basis that it was filed too late by his lawyers, and the Supreme Court apparently agreed. The court, without explanation and by a bare majority of one vote, let Georgia throw the switch.

Will that bizarre case prove an exception? We think not. The intricacies of the legal process surrounding capital punishment will make the procedure little more than a roll of the dice even in the hands of judges who struggle to fairly use the God-like power entrusted to them by society.

Society, aroused by violent crime, undoubtedly favors the death penalty as a deterrent. We believe, to the contrary, that official killing brutalizes society and may foster more violence than it theoretically may prevent, and that incarceration is a penalty more in keeping with our deepest values. We hope with Justice Stanley Mosk of the California Supreme Court, formerly a supporter of capital punishment, that “the day will come when all mankind will deem killing to be immoral, whether committed by one individual or many individuals organized into a state.”