For Capital Punishment: Crime and the Morality of the Death Penalty

...To equate the legal with the moral order is viewed by many as hopelessly naive and declasse, if not downright authoritarian...

...Professor Berns agrees with the despairing consensus about rehabilitation, and refuses to join issue on the question of deterrence...

...not only do they remind us of it, but by enforcing its prescriptions, they enhance the dignity of the legal order in the eyes of moral men, in the eyes of those decent citizens who cry out "for gods who will avenge injustice...

...That task completed, crime would no longer "pay," everyone would soon realize it, and crime would simply disappear, or nearly so...

...they never contemplated the possibility of an Orlov, a Manson, or a Leopold and Loeb, or an Oswald...

...Exemplification inculcates habits of law-abidance, not by engendering fear of punishment, but by underscoring the iniquity of crime and registering society's indignation toward those who commit it...

...He takes seriously, and regards as intolerable, the past history of capital punishment in this country, which indicates that, as a practical matter, it has been discriminatorily imposed almost solely upon racial minorities and the poor...

...Berns is fully sensible of the fact that the deliberate killing by the state of even those who have perpetrated the most horrendous of crimes is, literally, a dreadful thing, a "cruel necessity...

...The other failing of Beccaria and his followers was that they never read Dostoevsky...

...Even Ramsey Clark, from among whose array of predictable fatuities Berns abstemiously chooses for quotation only one or two, has expressed no doubt but that executing criminals is unsurpassed as a means of deterring renewed offenses on their part...

...Conventional terminology distinguishes between general and specific deterrence, the former referring to the supposed tendency of punishment to encourage the law-abiding to stay that way, and the latter to its hoped-for effect of discouraging the oncefallen from repeating their transgressions...

...As with so much Enlightenment social and political thought, the penology of Beccaria eschewed any concept of ineradicable evil, of the demonic, as a benighted relic of religious dogma...

...It should be unconcerned with vindicating merely moral prescriptions, which Beccaria viewed as properly belonging to the realm of private opinion...

...In a similar fashion, the punishments imposed by the legal order remind us of the reign of the moral order...

...Thus, if punishment is to have any effect in reducing its incidence, or in otherwise buttressing the legal order, it will have to be accomplished by means other than by tilting the scales of utilitarian calculation as envisioned by the theory of deterrence...

...Its positive contribution was to stir the legislative and judicial conscience to recoil at the mindless and indiscriminate cruelty which had been a hallmark of European criminal law...

...That treatment, even as applied to the most depraved convicts, was a reproach to societies which claimed to be guided by Christian principles...

...In contemporary America, crime does pay, in Beccarian terms, and quite handsomely...

...The criminal law, according to Berns, should be understood as an exemplificative, institution through which the claims and standards of the legal order, and the moral order which underlies it, are vindicated...

...Given the subject of his book, Berns obviously need address himself only to the relationship between general deterrence and capital punishment...

...the wonder is that there is not a good deal more of it...

...Berns' conclusion, however, and it is one about which there is now scarcely a shred of informed disagreement, is simply that moral refurbishment can no longer be regarded as a realistic goal or an expected result of any sanctioning measure...

...The father of deterrence theory, indeed of penology in its claim to be a field of scientific inquiry, was the 18th-centuryphilosophe and humanitarian Cesare Beccaria, who comes across in Berns' discussion as something of a well-meaning crackpot...

...Among Berns' most informative pages are those dealing with the vexed question of deterrence...

...It is, however, dependent upon a condign proportionality between the severity of the punishment and the gravity of the crime, and this means, in Berns' estimation, that the penalty of death is not only the morally permissible, but indeed the morally required, response to the most atrocious of crimes...

...Berns circumvents this difficulty by recounting the collapse of the rehabilitative ideal, a notion which entered into penological thinking only in the nineteenth century...

...The quality of that debate has hitherto suffered from one-sidedness, with nearly all the eloquence and passion coming from opponents of the death penalty...

...What one cannot fairly do after reading this book is to persist in the belief that no serious and morally sensitive case can possibly be made...

...Rather, he limits himself to some deft comments on the remarkable shoddiness of the statistical studies purporting to prove that execution does not deter, some of which have been credulously accepted by the courts as conclusive...

...Of course, some criminals do manage to rehabilitate themselves, and there are others who are in no sense habitual offenders and to whom the question of rehabilitation has no pertinence...

...Berns accepts the three principal purposes adduced by classical penology to justify criminal sanctions: rehabilitation, deterrence, and retribution...

...That it is the voice of a political theorist, deeply imbued with the traditions of Western philosophical and moral discourse, must be counted as a plus, since the contributions of jurists, lawyers, and criminologists to the subject have been, by and large, both shallow and tendentious...

...More generally, Beccarian penology was part of a broad movement which would confine the role of the state to keeping the peace, and which would deny it the functions of enforcing orthodoxy, of coercing belief and opinion, and of saving souls...

...The effect of Beccaria and his followers upon modern thinking about crime and punishment has been both beneficial and deleterious...

...They are angered by the sight or presence of crime, and anger is not merely a selfish passion In Macbeth the majesty of the moral law is demonstrated to us...

...Most contemporary debate about the efficacy and legitimacy of criminal sanctions, including the death penalty, is pitched in terms of deterrence, since rehabilitation has been pretty well given up as a lost cause and retribution has come to be widely regarded as merely a soothing euphemism for vengeance...

...Thus, at least by insinuation, is the conclusion to which Berns is led by sober and thoughtful reflection put on a par with the mindless approval of indiscriminate slaughter of innocent people...

...But the general concern attributed to him is certainly accurate if one merely substitutes magistrates, and perhaps the citizenry at large, upon whose approbation he thought the efficacy of criminal law largely depended, for Berns' misplaced jurors...

...Where he differs from most abolitionists, however, is in believing that such invidious discrimination can, under procedures recently mandated by the Supreme Court, be eliminated, and in having confidence in the sound and considered judgment of American legislatures and juries...

...By whatever degree punishment exceeded that finely calibrated measure of required severity, to that extent the criminal law would be perceived as a brutal atavism rather than a benign necessity, and thereby brought into disrepute...

...That is, he does not attempt any demonstration that the death penalty affords some measurable increment of deterrence over other forms of punishment...

...Deterrence is properly viewed as at most incidental to the problem of the death penalty, not of the essence...

...Berns' erudition lapses slightly when he says that Beccaria thought excessive punishments would so repel jurors that they would refuse to convict-jurors were unknown in the Continental systems with which Beccaria was familiar...

...FOR CAPITAL PUNISHMENT: CRIME AND THE MORALITY OF THE DEATH PENALTY Walter Berns / Basic Books / $10.95 Maurice J. Holland all, was a centuries-old tradition in which felons of all degrees were tormented, as a matter of public sport, until released from their agonies by death...

...Were deterrence per se regarded as a sufficient justification for capital punishment, the state would be as warranted in executing an innocent person as the most villainous offender, provided only that the former was widely believed guilty by those to be deterred...

...Much of the reaction to this important book has been predictably hostile, some of it even abusive...

...Re-enforcing the moral order is especially important in a self-governing community, a community that gives laws to itself...

...Berns avoids the easy temptation to ridicule the efforts of such prominent Quakers as Benjamin Rush to devise penitentiaries where felons might be reformed in lieu of being cruelly and publicly slaughtered...

...A unique characteristic of rehabilitation among these goals is that it obviously cannot be furthered by the death penalty...

...Lewis pointed out long ago, it would be monstrously unjust to punish a person in any manner without a firm conviction that such punishment was deserved, that it was the just consequence of moral culpability...

...Drawing upon the theory of general prevention associated with the Norwegian crim-inologist Johannes Andenaes, a theory to be sharply differentiated from general deterrence, Berns focuses upon "the capacity of the criminal law and its enforcement to promote obedience to law not by instilling a fear of punishment, but rather by inculcating law-abiding habits...

...He would, therefore, require that at least a few members of any legisla- * ture which authorizes capital punishment personally witness each execution...

...Given their respective dates, this omission is perhaps forgivable...

...Though the hopes of the early rehabilitationists have proved forlorn, and their prescriptions unavailing, they deserve a measure of respect (even from those most unsentimental about criminals) for their insistence that being convicted of a crime does not work a forfeiture of humanity...

...It must punish the wicked because the righteous or law-abiding citizens make this demand of it...

...This in no direct sense suffices to establish the legitimacy of the death penalty, but it does dispose of one major objection often urged against it in the past...

...Beccaria, drawing upon the political thought of Thomas Hobbes, asserted that the only proper business of criminal law was to prevent citizens from injuring one another...

...He prefigured Jeremy Bentham in reducing man to homo oeconomicus, a being actuated solely by the rational calculation of pain and pleasure, costs and benefits, who can be counted upon unfailingly to shape his behavior so as to minimize the former and maximize the latter...

...The contemporary expression of this tendency is reflected in the pronouncements of such prominent abolitionists as Justice Thurgood Marshall, who can discern no distinction between retribution and revenge, a distinction which can only derive from moral foundations if it is to have any relevance to criminal law at all...

...Thus, unlike deterrence, the efficacy of general prevention is not critically dependent upon a high conviction rate, which, while certainly desirable, is unlikely to be achieved under present conditions of law enforcement or those likely to prevail in the foreseeable future...

...Eighteenth-century rationalists and optimists that they were, they assumed that people commit crimes only for reasons of more or less material self-interest, and that society had only to remove this incentive by instituting an appropriate scale of punishments...

...Berns regards the recent work of Isaac Ehrlich, which concluded that as many as eight lives of potential victims might be saved by each execution, as more methodologically respectable, but he does not rely upon it for anything more than as evidence that empirical data, however copiously gathered and rigorously analyzed, will never suffice to legitimate or delegitimate capital punishment...

...The unexceptionable idea that criminal punishment should not be used to vindicate all tenets of morality was pushed to the point where punishment was denied any kind of moral component...

...Beccaria's suppositions about utilitarian calculation on the part of would-be criminals were flawed by two crippling oversimplifications...

...As C.S...

...While not undertaking to enumerate them, he believes the death penalty should be authorized for only a very few categories of offenses, and that juries should be accorded broad, though guided, discretion to take account of mitigating circumstances on a case-by-case basis...

...On the other hand, the works of St...

...Once this legacy of monkish superstition was renounced, "anti-social behavior,'' as the latter-day counterparts of Beccaria would antiseptically put it, could be kept in check by the benign and rational ordering of social institutions...

...it teaches us the awesomeness of the commandment, thou shalt not kill...

...Augustine were available...

...That is because, Berns maintains, capital punishment is a question of moral philosophy, not of social engineering...

...Quoting Andenaes, Berns maintains: " 'The idea is that punishment as a concrete expression of society's disapproval of an act helps to form and to strengthen the public's moral code and thereby creates conscious and unconscious inhibitions against committing crimes.' " This view of the legitimacy and functioning of punishment is expanded upon by Berns in the following paragraphs: What is said in Psalms about the Lord must also be said about the law, and as belief in divine reward and punishment declines, it must be said more emphatically about the law: we must trust in the law, and those who do will be rewarded...

...Berns concedes the point urged most strenuously by opponents of capital punishment, namely, that as compared with lesser punishment, it cannot be proved to afford any incremental deterrence...

...In a Ben-tham-like manner, Beccaria thought it possible for the legislator to calculate with almost mathematical precision the magnitude of punishment needed to deter each kind of crime...

...But given the rather slight prospect that the perpetrator of any crime will ever have to suffer imprisonment, to say nothing of execution, it seems most unlikely that our criminal justice system achieves anything significant by way of deterrence at all...

...The background against which those efforts took place, after Maurice J. Holland is associate professor of law at Indiana University...

...This is a grossly unfair appraisal of Berns1 position and of the tenor of his argument in support of it, which betrays not a hint of bloodthirsty "off with their heads" martinetism...

...One is most certainly entitled to disagree with Berns on these or any of the other points he makes in propounding the case for capital punishment...

...What, according to Berns, is the essence of the matter...

...First, he took no account of the possibility of offenders escaping detection or punishment, a factor by which the severity of penalties upon conviction would have to be discounted even if one accepts all the premises of deterrence theory...

...In the United States today that possibility is reliably estimated at an astounding 98.3 percent, because of the combined effects of failure to arrest, prosecute, convict, or punish offenders other than by granting probation or suspended sentences...

...Its unfortunate effect derived from the tendency to go beyond this and detach criminal law from any sort of moral foundation except in the narrowest utilitarian sense...

...With this volume, the virtual monopoly on moral argument has been broken, and a strong, though restrained, voice has been sounded on the unfashionable side of the issue...

...In an otherwise moderate, though ultimately unfavorable, review in Commentary, "the Right, in America as elsewhere," and by implication Berns, is accused of "a nostalgic yearning for the gallows," and this is flatly equated with the "Left's recurring sympathy for revolutionary terrorism...

...While it is perfectly logical to argue that people found guilty of particularly heinous crimes ought to be executed in the interests of deterrence or retribution, even though they might otherwise be rehabilitated, such a position would probably strike most people as too sanguinary, as savoring too much of the "eye for an eye, tooth for a tooth" lex talionis for modern sensibilities to bear...

...The regnant canons of opinion in these matters do not countenance the use of such old-fashioned terms as "wickedness" or "righteous anger" in connection with criminals, so firmly ensconced is the therapeutic ethic in contemporary thinking about the subject...

...The law must respond to the deeds of the wicked, and the righteous must have confidence that the law will respond, and do so in an appropriate manner...

...The fond hope that even the most violent and hardened of convicts could be brought to repentance and purged of their criminal tendencies derived from a quaintly mechanistic, meliorist psychology bequeathed by the Enlightenment and a Quaker implacability about bringing malefactors to the Light...