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Who Deserves to Die?

November 12, 1999

Odds are, Alan Berlow argues in "The Wrong Man" (November, Atlantic), that our criminal justice system has condemned innocent people to death in the recent past and will continue to do so unless significant reforms are made. "There can be no greater offense by a state, and nothing more damaging to its legitimacy," Berlow writes, "than the execution of an innocent person. The fact that we are not able to guarantee that no innocent person will be executed remains the most powerful argument against the death penalty."

The legitimacy of the death penalty as a form of punishment has been considered by a number of contributors to The Atlantic Monthly over the years -- perhaps most provocatively by George Bernard Shaw. In "Capital Punishment" (June, 1948), he asserted, with a vehemence that we can assume to be ironic, that those who are "incapable of discharging their social duties and paying their way" should be "liquidated" by the responsible, productive majority. "The ungovernables, the ferocious, the conscienceless, the idiots, the self-centered myops and morons, what of them?" Shaw asked. "Do not punish them. Kill, kill, kill, kill, kill them."

In a considerably more sedate article, "Is the Death Penalty Necessary?" (September, 1957), Giles Playfair, a London Barrister, argued that the penal system should aim to rehabilitate and reform rather than to exact vengeance. By locking people away for the rest of their lives or sentencing them to their deaths, Playfair suggested, society focuses on expressing its outrage toward wrongs already committed rather than on preventing such wrongs through offering help to the mentally ill and morally confused.

A judge who had actually been responsible for sentencing defendants to death weighed in on the issue in January, 1960. In "Sentencing: The Judge's Problem" Judge Irving R. Kaufman, who in 1951 ordered the execution of Julius and Ethel Rosenberg, emphasized the careful deliberation and research that a judge devotes to the determination of an appropriate sentence: in every case, he explained, the good of society and of the offender, and how each might be served by a variety of possible sentences is weighed and considered. "The fair resolution of the forces pulling for severity or leniency is a judge's most important and difficult task.... But resisting the pressures has its own reward -- the satisfaction of being able to say to oneself, 'I have never consciously rendered an unjust decision.' The day a judge is unable to make that statement should be his last day on the bench."

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