THE enormity of killing one's fellow man with premeditation is the principal reason for the existence of the death penalty; it is also the principal argument for abolishing it. The dilemma of deciding which aspect of that paradox should prevail has occupied the minds and emotions of civilized men for centuries. This week it will be the concern of the U.S. Supreme Court as it hears oral arguments on the contention that the death penalty constitutes "cruel and unusual punishment" in violation of the Constitution's Eighth Amendment. The opposing lawyers are again marshaling the extensive arguments that have developed over many years of debate. The main question, however, is this: Has the U.S. reached the point at which the death penalty affronts the basic standards of decency of contemporary society?
For 4½ years there has not been an execution in the U.S. This unofficial moratorium, which currently affects 696 prisoners, is the result of an intricately planned campaign that used every possible legal tactic or argument. Even before that, however, the number of executions had been decreasing markedly. From a 1935 high of 199, the annual total shrank to 76 in 1955, 56 in 1960 and two in 1967, when the moratorium began. Meanwhile, Great Britain has joined a worldwide trend toward abolition, and Canada has followed suit (except for killers of on-duty policemen and prison guards) as a five-year experiment.
The death penalty has been abolished before in Anglo-Saxon law. William the Conqueror banished it during his reign (1066-87), though he did not object to criminals being mutilated. But a few years later, Henry I (1100-35) permitted the ax and rope to return, and by the 16th century, offenders were also being drowned, drawn and quartered and boiled to death for crimes that ranged from cutting down a tree to stealing property worth more than a shilling. Traitors were hanged, then cut down while still alive, disemboweled so that their innards could be burned before their eyes, then decapitated, and finally quartered. The high mark of judicial bloodiness came with Henry VIII, of whose subjects 72,000 were executed.
Beginning in the late 19th century, a trend against capital punishment has continued, if not always steadily, in both Britain and America. In 1846 Michigan, then a territory, became the first English-speaking jurisdiction in the world to do away with the death penalty for all practical purposes (treason excepted). Various states have since tried complete abolition—with some, like Delaware in 1961, later returning to the death penalty. By now, 14 states have outlawed executions completely (or with narrow exceptions, notably for killing an on-duty policeman). Still, American juries continue to impose death penalties at a rate that has remained relatively constant for a decade: 100 per year. Moreover, while a 1966 Gallup poll showed that a narrow plurality of 47% opposed capital punishment for murder, the most recent survey found that, with growing fears about crime, 51% of Americans now favor the death penalty.