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Death Penalty for Juveniles.

News stories about executions seem to get smaller and smaller. They're tucked away in sections of the paper that no one reads - a sentence or two reporting that so-and-so, who has been on death row since 1984 for shooting a convenience-store clerk during a botched holdup, exhausted his appeals and was electrocuted last night, or hanged, or given a lethal injection, or asphyxiated in a gas chamber. Maybe another line or two notes that it was the state's ninth execution this year. Unless the circumstances of the crime were spectacular or the convict achieved unusual notoriety, another execution simply isn't news any more.

Nor is it an occasion for political protest, or for religious concern, or even for civic introspection. Recent public-opinion polls tell us that 75 or 80 per cent of Americans heartily approve of capital punishment. In today's law-and-order climate, support for the death penalty is rising steadily in the United States, which finds itself in distinctly unsavory company - the likes of China, Iraq, Korea, Iran, Libya, South Africa, and some of the nations of the former Soviet Union - in still putting people to death for ordinary criminal offenses.

Yet only two decades ago it was possible to believe that no person would ever again be put to death under governmental sanction in this country. There was widespread revulsion against capital punishment, and many state and national legislators, as well as members of the judiciary, felt they could oppose the death penalty without placing their reputations or political careers in jeopardy. In fact, a ten-year moratorium on executions began in 1967, and the Supreme Court's 1972 decision in Furman v. Georgia, though it stopped short of banning capital punishment outright, seemed to promise that the barbarous business of state-sanctioned homicide might be behind us for good. It didn't turn out that way.

I've spent much of my reading time this past year trying to understand how and why the United States turned back the clock on capital punishment. My interest was kindled by Marshall Frady's justly famous article in The New Yorker about Ricky Ray Rector, a young, severely mentally disabled African-American who was executed in Arkansas on January 24, 1992, after the governor of that state (who happened to be running for his party's Presidential nomination) conspicuously refused to intervene to save Rector's life. How did it happen, I wondered, that Bill Clinton actually scored political points by participating in such a monstrous miscarriage of justice? How did public attitudes and official policies in the United States undergo such a drastic transformation - a great leap backward - in the span of fewer than twenty years? And what, if anything, could be done to turn the clock forward again?

Raymond Paternoster's Capital Punishment in America (Lexington Books/ Macmillan) is a thoroughly researched introduction to the subject, but though it was published only two years ago, it is already somewhat out of date: Recent court decisions designed to "unclog" the Federal courts have made it even easier to put convicts to death, public attitudes have hardened, and the Clinton Administration's crime bill would authorize execution for some four dozen Federal offenses. This casts some doubt on Paternoster's contention that public support for the death penalty is "soft" and might give way to such nonlethal punishments as life imprisonment without parole.

But Paternoster, a professor of criminal justice at the University of Maryland, provides valuable insights on such troubling topics as the blatant racial bias in the application of death sentences, the execution of juveniles, the costs of capital punishment vis-a-vis life imprisonment, and the perpetual efforts to square the death penalty with the Eighth Amendment's ban on "cruel and unusual punishment."

Particularly useful is Paternoster's debunking - buttressed by ample data - of the notion that capital punishment acts as a "deterrent," and therefore provides panicked citizens with a degree of genuine protection. He acknowledges that "a belief in deterrence is widespread," and proves that it is unfounded.

Several dozen young people - most of them male, most of them black - inhabit death rows in state penitentiaries, awaiting execution for crimes committed when they were fifteen or sixteen or seventeen years old. A decade ago, the American Bar Association declared its opposition to "the imposition of capital punishment upon any person for any offense committed while under the age of eighteen," and there were legislative moves to outlaw the execution of juveniles. This, too, has changed. Today, some judges and legislators are eager to permit children to be put to death.

In Death Penalty for Juveniles (Indiana University Press), Victor L. Streib, a professor at the Cleveland-Marshall College of Law, analyzes the juvenile death-penalty cases that were pending when he wrote six years ago - most of them are pending still - and documents the 300 or so executions of juveniles that have taken place in the United States. From these cases, Streib concludes that putting juveniles to death is "arbitrary, capricious, and freakish." He takes no explicit stand on capital punishment for adult offenders, but argues forcefully that the line should be drawn at age eighteen.

Like Paternoster, Streib argues that "the death penalty is not a greater deterrent than long-term imprisonment." Neither author examines the pros and cons of long-term imprisonment itself - but perhaps that must wait for the issue of capital punishment to be resolved.

At least life imprisonment, with or without parole, leaves open the possibility of correcting a gross miscarriage of justice; the death penalty, on the other hand, is irreversible. In Spite of Innocence, by Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam (Northeastern University Press), details the ordeals suffered by 416 Americans who, whether they were actually executed or not, were wrongfully convicted of crimes punishable by death.

"During this century in the United States," the authors note, "more than 7,000 men and women have been legally executed for capital crimes. Many thousands more have been sentenced to death. Probably a quarter of a million persons have been convicted of criminal homicide. The errors, blunders, and tragedies recounted in the pages of this book barely scratch the surface of this vast output of this nation's criminal justice system.... Hundreds of cases, many of them involving miscarriages of justice every bit as serious as any we describe, almost certainly remain to be investigated."

Radelet, a University of Florida sociologist, Bedau, a Tufts University professor of philosophy, and Putnam, a Boston-area writer, have compiled a ghastly collection of horror stories - cases of mistaken identity, innocent error, deliberate frameup, excessive prosecutorial zeal, and police malfeasance. Some of these stories received prominent media attention, while others have never been told before in such harrowing detail. All of them should give pause to anyone who believes the criminal-justice system is so error-proof that human lives can be entrusted to its workings.

Unlike the books I've mentioned so far, Dead Men Walking by Helen Prejean (Random House) contains no tables, no statistics, no analyses of court decisions. The author is neither a lawyer nor a social scientist; she is a member of the Sisters of St. Joseph of Medaille, and since 1982 she has devoted her life to counseling and assisting death-row inmates and the families of murder victims.

Dead Men Walking contains the usual arguments against capital punishment, but its unique contribution is Prejean's unqualified compassion for her fellow human beings - including particularly those we put to death. In exalting their humanity, she quietly condemns those of us who stand as mute accomplices to the atrocity of the death penalty. Here are her reflections after witnessing her first execution:

"Who killed this man?


Everybody can argue that he or she was just doing a job - the governor, the warden, the head of the Department of Corrections, the district attorney, the judge, the jury. the pardon board, the witnesses to the execution. Nobody feels personally responsible for the death of this man. DAs are fond of saying that criminals |put themselves in the chair.' Shortly before the execution in Louisiana of a convicted murderer, Tim Baldwin, on September 10, 1984, a guard in the death house whispered to him, |You gotta understand, Tim, this is nothing personal.'"

Dead Men Walking is a remarkable woman's account of her own emotional journey toward total comprehension of circumstances from which most of us avert our eyes. Prejean doesn't blink. She realizes that the conditions under which we impose the death penalty reach to the roots of the human condition. She weeps for us, for our victims, for herself. This is an unforgettable book.

But in my search for an understanding of the death penalty's remarkable recent revival in the United States, I came closest to an answer in a twenty-year-old book that deals with a 270-year-old piece of British legislation. in Whigs and Hunters. The Origins of the Black Act (Pantheon), the great British scholar E.P. Thompson provided a subtle and sophisticated analysis of the law, in general, and the death penalty, in particular. as instruments for the protection of class privilege,

The Black Act of 1723 authorized execution as the punishment for an extraordinary range of crimes, down to cutting down young trees and writing threatening letters. The offenses were called "blacking," but "black" was not a racial designation: The Blacks were poachers who darkened their faces to avoid detection in the nocturnal forests. According to a proclamation of the time cited by Thompson, they "were armed, broke into forests and parks, killed and carried off deer, rescued offenders from the constables, sent menacing letters to gentlemen demanding venison and money, and threatening murder or the burning of houses, barns and haystacks." They were, in other words, the equivalent of today's urban "underclass," impoverished and therefore menacing to property holders who saw execution as a final solution. Some of the Blacks, Thompson observes, "had the impertinence, and the imperfect sense of historical perspective, to expect justice." But their persecutors knew better.

Eventually, Britain's Whig rulers found it impossible to sustain the deligitimatizing contradictions of the savage Black Act. Perhaps we'll be so lucky.

Not all my reading in 1993 was so grim. John Leonard's The Last Innocent White Man in America (New Press) comes to mind as an engaging Collection of civilized essays about cultural uplift and decline. And an old friend produced an incisive but genial self-portrait, Herblock. A Cartoonist's Life (Macmillan). I also managed to enjoy a few novels, volumes of poetry and short stories, and biographies, notably Ernst Pawel's brilliant life of Franz Kafka, The Nightmare of Reason (Noonday/Farrar Straus Giroux).

But what I'll remember for the longest time from this year's reading are Helen Prejean's love for the unlovable and E.P. Thompson's explanation of the unfathomable.
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Author:Knoll, Erwin
Publication:The Progressive
Article Type:Book Review
Date:Jan 1, 1994
Previous Article:Capital Punishment in America.
Next Article:In Spite of Innocence.

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