Charles Black Death Penalty Analysis

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. SUMMARY: ... Nonetheless, the death penalty looms large in discussions: it raises important moral questions independent of the number of executions. ... The death penalty is our harshest punishment. ... Further, maldistribution inheres no more in capital punishment than in any other punishment. ... Many nondecisive issues are associated with capital punishment. ... We cannot know whether the murderer on death row suffers more than his victim suffered; however, unlike the murderer, the victim deserved none of the suffering inflicted. ... Although penalties can be unwise, repulsive, or inappropriate, and those punished can be pitiable, in a sense the infliction of legal punishment on a guilty person cannot be unjust. ... To regard the…show more content…
Yet Charles Black, by providing the inevitability of "caprice" (inequality), undermines his own constitutional argument, because it seems unlikely that the Constitution's fifth and fourteenth amendments were meant to authorize the death penalty only under unattainable conditions. See C. BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE (1974). n9 See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, BULLETIN NO. NCJ-98,399, CAPITAL PUNISHMENT 1984, at 9 (1985); Johnson, The Executioner's Bias, NAT'L REV., NOV. 15, 1985, at 44. n10 It barely need be said that any discrimination against (for example, black murderers of whites) must also be discrimination for (for example, black murderers of blacks). n11 Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases (1st draft, Oct. 1985) (on file at Harvard Law School Library). n12 An excessive number of trucking accidents or of miscarriages of justice could offset the benefits gained by trucking or the practice of doing justice. We are, however, far from this…show more content…
Sparing the innocent victims who would be spared, ex hypothesi, by the nonexecution of murderers would be more important to me than the execution, however just, of murderers. But although there is a lively discussion of the subject, no serious evidence exists to support the hypothesis that executions produce a higher murder rate. Cf. Phillips, The Deterrent Effect of Capital Punishment: New Evidence on an Old Controversy, 86 AM. J. SOC. 139 (1980) (arguing that murder rates drop immediately after executions of criminals). n16 H. GROSS, A THEORY OF CRIMINAL JUSTICE 489 (1979) (attributing this passage to Sir James Fitzjames Stephen). n17 Weems v. United States, 217 U.S. 349 (1910), suggests that penalties be proportionate to the seriousness of the crime -- a common theme of the criminal law. Murder, therefore, demands more than life imprisonment, if, as I believe, it is a more serious crime than other crimes punished by life imprisonment. In modern times, our sensibility requires that the range of punishments be narrower than the range of crimes -- but not so narrow as to exclude the death

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