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That is hardly a mandate for a new round of executions, but neither does it support the argument that capital punishment is an affront to contemporary standards. The Constitution places no specific restrictions on the death penalty, and its defenders—including the state's attorneys for California, Georgia and Texas, who are arguing the case before the Supreme Court—maintain that the ban on cruel and unusual punishment is meant simply to govern excessive or inherently cruel penalties. To these men, the death penalty is neither—at least for murder or rape, the main offenses for which it is now invoked.
In response, Stanford Law Professor Anthony Amsterdam, the principal architect of the abolition campaign, has developed an intricate argument. He finds that execution is now generally reserved for a few socially unacceptable, personally ugly and invariably poor defendants; a disproportionate number are from minority groups. "If a penalty is generally, fairly and uniformly enforced," says Amsterdam, "then it will be thrown off the statute books as soon as the public can no longer accept it. But when the penalty is enforced for a discriminatorily selected few, then all the pressures which normally exist to strike an indecent penalty off the books no longer exist. The short of the matter is that when a penalty is so barbaric that it can gain public acceptance only by being rarely, arbitrarily and discriminatorily enforced, it plainly affronts the general standards of decency of the society."
Whether this argument will persuade a majority of the Justices remains to be seen, but virtually every other argument for and against the death penalty has also been put before them. One main question is whether the death penalty deters criminals. Abolitionists point to studies showing that a halt in executions leads to no increase in capital crimes, and that murder rates are quite similar in neighboring states with and without the death penalty. Supporters of the death penalty argue that such studies include all murders, 80% of which result from disputes between persons who know each other, and that this 80% probably cannot be deterred by penalties of any kind. They insist, though, that holdup murders and similar crimes can be reduced by the fear of death, particularly if that death is imposed swiftly rather than after years of legal delays.
To support their statistical arguments, both sides call on the personal impressions of professional experts. Police consistently encounter criminals who say that they used no gun during a robbery because they feared the electric chair. Prison authorities, who tend to oppose the death penalty, report that these same criminals, once in jail, say that they simply did not want to kill anyone and that they told the cops whatever they thought the cops wanted to hear.
Religious authority, in so far as it influences mores, is no less equivocal. Most Protestant churches stand opposed to executions. Popes have long conceded the state's right to execute, but Paul VI regularly calls for clemency in individual cases. Jews are generally against the death penalty, and Israel has no capital punishment except for genocide and war crimes, which covered Eichmann. As for the Bible, it instructs, "Thou shall not kill," and then, in the next chapter of Exodus, provides, "He that smiteth a man, so that he die, shall be surely put to death."