The Death Penalty: An Eye for an Eye

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Professor Ed Sherman. But prosecutors want to win, and they "perceive that a Texas jury is more likely to give the death penalty to a black who killed a white." A similar South Carolina study found an almost identical pattern: local prosecutors over four years sought death sentences in 38% of homicides involving a white victim and black killer, but only 13% when a white had killed a black.

A serious problem is the quality of legal help for murder defendants. The Texas study, conducted by the Governor's judicial council, found that three-quarters of murderers with court-appointed lawyers were sentenced to death, against about a third of those represented by private attorneys. Amsterdam, who has argued eight capital cases before the Supreme Court, contends that "great lawyering at the right time would save virtually everybody who is going to be executed." Scharlette Holdman, director of Florida's Clearinghouse on Criminal Justice, persuades volunteer lawyers to represent death-row inmates. "Every person sentenced to die comes from a case fraught with errors," she says. "If you're adequately represented you don't get death. It's that simple."

Aside from public defenders, there are only about a dozen attorneys working full time on behalf of the condemned. Court-appointed lawyers in most states are not required to stay on a murderer's case after a conviction. "Drunk lawyers, lazy lawyers, incompetent lawyers, no lawyers," says Holdman. "You can have all the correct issues for appeal, but if you don't have a good lawyer to raise them, they don't mean a damn thing." Of 2,000 death sentences imposed during the post-Furman decade, about half have been reversed or vacated by the courts.

The careful legal course demanded by the Supreme Court is expensive. Last year the New York State Defenders Association estimated the trial costs for a typical capital-punishment case: a defense bill of $176,000, about $845,000 for the prosecution and court costs of $300,000. The total: $1.5 million, and this before any appeal is filed. Getting a writ before the Supreme Court, just one appellate step, might cost $170,000.

It is often argued, with blithe inhumanity, that there are good fiscal reasons for executing murderers: prison is too costly. It is cheaper to send a student to Stanford for a year than it is to keep a con in nearby San Quentin ($10,000 vs. $20,000). But imprisoning one inmate for 50 years would require less than $1 million in New York, not bad compared with the costs of the painstaking appeal process.

Everyone seems afraid of imposing bona fide life sentences, however, and for reasons unconnected with expense. Seventeen states have laws providing for life without parole for those convicted of murdering a robbery victim. Abolitionists say such a sentence is excessive. Statistics show that fewer than 1% of freed murderers kill again after their release from prison, in part because of their advanced age. But if capital punishment is abandoned, it may make sense, politically and emotionally, to permit the public some vengeful satisfaction. Life without parole is unimaginably harsh. But it would be a way occasionally to formalize the revulsion at Charles Manson and his ilk. As it is, Manson will be eligible for parole in 1985.

On death rows, the emotional tone is