The Nation's Pulse / The Capital Punishment Debate
Rusthoven, PeterJ.
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...Thus, Aryeh Neier of the ACLU argued recently in the New York Times that Gilmore's desire for execution was a product of his being forced to choose between prolonged and nerve-racking delay and the relief of having it done with...
...To know by touch is to merge, to be within, to be renewed...
...Opponents continue to attack the penalty in ihetoric (often overblown) of righteous indignation...
...As of this writing, however, the State of Utah has refused to accede to that request, even though it is under Utah's laws and processes that Gilmore stands condemned...
...Its essaysm describing, for instance, the social and political ramifications of abstract art in the USSR, the state of creativity in Czechoslovakia (before and after '68) and the cultural implications of the Russian takeover, a penetrating short history of literature under Stalin (by Andrei Sinyavsky) which also deals with some of the symbolism involved--are informative, fascinating, sober...
...Justices Stewart, Powell, and Stevens concluded, despite the seemingly contrary implications of Furman, that the death penalty was in fact Constitutional only if there were some room for discretion by judge or jury as to which individuals convicted of capital offenses merited the ultimate punishment...
...The remaining members of the Court--Chief Justice Burger and Justices White, Blackmun, and Rehnquist --in essence were willing to uphold capital punishment in principle and leave the question of implementation to the individual states...
...26 The Alternative: An American Spectator February 1977 the same question about a convicted murderer...
...My personal response has not been overly difficult to reach: I believe that the basic moral precepts of our social order are valid as standards for human conduct, and we need have little difficulty, therefore, when careful, collective, and fair judicial process determines that certain acts so violate those moral precepts that the perpetrator deserves death...
...Last Term, however, the Court further confounded the issue in a series of cases passing on death penalties enacted by various states in the wake of Furman...
...whether he will succeed in being the first man put to death since 1967 is likewise unclear...
...She teaches philosophy at California State College, Sonoma...
...Hence, Neier argues that Gilmore's experience is but a dramatic example of the "savagery" of capital punishment...
...Whatever his motives or ultimate fate, however, it is clear beyond cavil that Gilmore's developing saga has revived yet again the nation's debate over capital punishment...
...In an article in the January 1977 Penthouse (the thesis of which is that porn star Harry Rectus is being unduly persecuted for his artistic endeavors), Dershowitz tosses off a gratuitous remark that the same people who oppose abortion tend to favor the death penalty...
...and therefore our decision on capital punishment cannot and should not be made on the classically utilitarian grounds of whether or not it will decrease the incidence of violent death...
...Gilmore from keeping his date with the firing squad...
...In 1973, opponents of execution won an apparent if far from decisive victory in Furman v. Georgia, in which five members of the Supreme Court decided that capital punishment as then administered constituted "cruel and unusual punishment" in violation of the Eighth Amendment to the Constitution...
...BOOK REVIEW Kontinent Edited by Vladimir Maximov / Doubleday-Anchor / $3.95 Juliana Geran Pilon One would hope that a publication like Kontinent would not have to be reviewed...
...Perhaps the main feature of the journal is the Solzhenitsyn-Sakharov exchange...
...and the courts continue their futile search for an answer in a hodgepodge of legalisms...
...thirsty' '--but the adjective is fairly typical of much media coverage of this issue, which tends to be couched in language of "barbarism...
...Finally, along with the legal battles, and the emotional assaults of the Left, the old deterrence debate continues...
...seeing is to be deceived...
...On several occasions Solzhenitsyn warns against glibness...
...Greene expresses surprise that the overwhelming majority of the students had indicated support for the death penalty, since, in his words, he "had assumed" that the youngsters "had not yet been hardened to the ways of the world...
...In contrast to the Court's sincere if misguided grappling with largely self-created legal complexities, confirmed critics 6f the death penalty have focused on emotional and often inflammatory attack...
...Accordingly, seven Justices voted to sustain those laws which provided for some discrimination in determining which convicts would actually die...
...That capital punishment is indeed legal under some circumstances is clear enough, but it is hard to fathom precisely what those legitimizing circumstances are...
...Predictable uncertainty ensued about what the decision meant...
...Thus Kontinent, conceived by men with eyes of stone, having beheld the Gorgon of totalitarianism...
...Gilmore is a self-admitted murderer of two human beings...
...But even more important than the actual decision we reach is that we discuss the problem in terms which acknowledge its serious moral dimension, and in ways which reveal our own understanding of our obligations to take such questions seriously...
...and, to be sure, we cannot afford to skim through the The Alternative: An American Spectator February 1977 27...
...Its Editorial Board includes writers who specialize in the Western id (having fashioned it in part), notably Saul Bellow and Eugene Ionesco...
...However, the Furman Court did little to articulate the basis of its holding--quite the contrary, each of the nine Justices felt compelled to deliver a separate opinion...
...Hardly what most of us would call "blood...
...Juliana Geran Pilon came to this country from Romania in 1962...
...Two, because the granting of that wish will make him the first individual executed within these borders in almost a decade...
...Gilmore himself, between suicide attempts, has found himself on the covers of national magazines...
...Yet the magazine is largely a manual for the handicapped...
...The Gilmore case has also added its own twist to emotional attack on the death penalty...
...and that overall, the Court is involved in a protracted muddle which it could have avoided by simply holding--as four of its members accurately contended--that the Constitution rather clearly contemplates the validity of the death sentence, and leaves the basic choices to the several states...
...Rather, a host of presumably well-meaning busybodies, led by the American Civil Liberties Union, have thus far fought a successful battle to prevent Mr...
...But until we face frankly the moral question raised by the issue of capital punishment, we shall in all likelihood be forced to view numerous farcical performances of the type now being staged in Utah...
...The bottom line of all this appears to be that under the most recent decisions, some discretion is required...
...The opposing arguments on this score are all too familiar, and I will only repeat here the observation of James Q. Wilson which I reported in my earlier column: Deterrence studies are inevitably and inherently flawed to the point of virtual unreliability...
...He has been convicted and sentenced to death for one of those killings, and has repeatedly requested that his sentence be carried out forthwith...
...Some were encouraged to view it as the first step toward an eventual outright ban on executions...
...Not as self-conscious and pontifical as the collection From Under the Rubble (1974), though equally anguished, Kontinent is a textbook on cultural survival, on the sacrifice that is genuine art behind the Iron Curtain...
...But despite the fact that surveys reveal an increasing percentage of the populace in favor of capital punishment, voices such as National Review are generally outnumbered in our public discourse on this question...
...THE NATION'S PULSE by PeterJ...
...Through it all, the critical issue is seldom if ever aired...
...Unfortunately, though, what was noted in this space some three years ago ("Capital Punishment: The Ethics of Execution," February 1974) continues to be true: That debate almost invariably avoids the critical issue of moral deserts, opting instead for either convoluted legalisms, emotional distortion, or irresolvable and ultimately irrelevant arguments about deterrence...
...Peter J. Rusthoven is a practicing attorney in Indianapolis...
...In fact, the responses are little more than simplified statements of the deterrence theory, coupled at times with comments about the seeming justice of imposing death on those who kill, both expressed in the prose of eleven-year-olds...
...The unstated implication of this increasingly common remark is, of course, that those who support execution (or for that matter, oppose abortion) are consistent only in that they favor reactionary positions--as if there were no relevant distinctions to be drawn between deciding whether an innocent fetus should die and answering " The Fifth Amendment assumes in three places that individuals may be deprived of life...
...Thus, joined by Brennan and Marshall, they overturned laws mandating execution for all convicted...
...Gilmore's case has been up to the Supreme Court of the United States and back again...
...no state is willing or would be permitted to undertake the kind of controlled experiment which would yield solid empirical data on the question, even if such an experiment could be designed...
...Kontinent is the result of a powerful epistemology, as expressed in these lines from Alexander Galich's poem: In this window the morning light breaks every day, Like a blind man, I know everything here by touch...
...To Sakharov's criticisms, which in the main echo Western "liberal" charges (e.g., Solzhenitsyn's "'fanatical" religiosity, his nationalism and reactionary "antiprogressivism," his single-minded opposition to democracy), Solzhenitsyn answers curtly: "Anyone who takes the trouble to reread my Letter [to the Soviet Leaders] will be convinced that it contains nothing of the sort...
...Gilmore has become a cause celebre for two basic reasons: One, because he professes to desire swift execution...
...Whether we should or should not have the death penalty involves a straightforward moral determination-namely, whether there are crimes for which we, as a free society, are willing to say that an individual deserves to die...
...Another example of the prevailing rhetoric is a recent newspaper article by one Bob Greene, a Chicago reporter writing about the reactions of a group of sixth graders to the idea of capital punishment...
...Whether Gilmore is sincere in his stated desire is well-nigh impossible to determine...
...Gilmore is any indication, however, discussion on this level is unlikely to take place any time soon...
...To understand them, eyes are not merely insufficient, they are a handicap...
...As National Review aptly responds, "since life is full of dilemmas, what we feel for the murderer who has to decide whether he wants to keep sweatily postponing retribution is something other than pity...
...Rusthoven Moral Desert: The Capital Punishment Debate For the past few months, the nation has been forced to endure the extraordinary spectacle revolving around the life and impending death of one Gary Mark Gilmore...
...Though edited by a Russian, Vladimir Maximov, Kontinent's aim is to reach mankind in as many languages as possible...
...million dead in the USSR, of a culture smothered--this is not so much a book as an event...
...The argument that execution is per se cruel and unusual was finally put to rest--only Justices Brennan and Marshall continued to press that strained and unpersuasive "interpretation" of the Constitution--but little else was settled...
...others, noting that four Justices would have upheld the capital punishment laws at issue and that three of the other five had emphasized the supposedly arbitrary manner in which executions were being meted out, believed that laws imposing mandatory death sentences would pass Constitutional muster...
...Harvard law professor Alan Dershowitz, in most matters reasonable and thoughtful, provides a recent example of this sort of argument...
...the "due process" clause of the Fourteenth Amendment carries with it the same assumption...
...under Furman, too much discretion is forbidden...
...Moreover, statutes imposing death as the penalty have been enacted since the first Congress...
...proponents continue to respond with questionable arguments and statistics about deterrence, which their antagonists in turn seek to refute with equally unreliable data...
...If the melodrama of Mr...
...The legal status of the death penalty is at present hopelessly muddled...
...Perhaps that is why, in the phrase of NationalReview, he has been so successful in turning his fate into the stuff of theater...
...To me, at least, this silence is surprising, for the key issue is one of stark simplicity...
...Not just another commentary on the implications of sixty (ninety...
...Their teacher as well, he reports, "was surprised by the bloodthirsty nature of their responses...
...The Gilmore incident thus finds the nation little advanced in its consideration of capital punishment, despite literally decades of heated discussion and argument...
Vol. 10 • February 1977 • No. 5
