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Too few opponents of capital punishment are willing to concede the full weight of the emotion of vengeance. Before reaching the high court, Oliver Wendell Holmes wrote: "The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would [go so far as to] gratify the passion of revenge outside the law, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution." Capital punishment is still very much based on that need for retribution, though just how strong that need is remains unclear. Even though a majority of Americans nominally endorse capital punishment, that endorsement is probably not so strong as to lead to lynchings in the streets if the death penalty were abolished. All change causes difficulties and dislocation, but this is not necessarily a reason to deter otherwise desirable progress. If it is conceded that man is not totally limited by his animal origins, that he can grow gentler and more humane, then it follows that death will some day join torture as a prohibited form of punishment.
The educated guessers predict that the Supreme Court is not likely now to decree the arrival of that day—at least for murder —though death for rape may fall.
If the death penalty survives at all, its determined opponents will doubtless turn first to Governors to seek commutations and then to state legislatures, which may provide the best forum for settling the question. One can reasonably hope that the legislators will endorse abolition, exercising leadership for the electorate. Such leadership is, after all, more properly the role of the legislature than of the courts. Shifting perceptions have already made most of the world's past executions, for political, religious or simply trivial offenses, seem barbaric. The mere suspicion of such future condemnations of our own times should make even the most righteous judge hesitate before continuing so fallible, so irreversible, so perilously godlike a practice as the imposition of death by decree.
Lord Chancellor Gardiner put the matter well during the debate that preceded the end of the death penalty for murder in Britain. Speaking of earlier decisions to abandon the grotesque hanging, disemboweling and quartering of traitors, he said: "We did not abolish that punishment because we sympathized with traitors, but because we took the view that it was a punishment no longer consistent with our self-respect." It would be welcome, in a time of diminished self-respect, to take this particular step toward reasserting it.