The Death Penalty: An Eye for an Eye

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after a year of comfortable confinement, taken outside the city and stoned to death. In the view of some death-penalty abolitionists, contemporary executions are not really so different. Each execution is mere "spectacle," according to the A.C.L.U.'s Schwarzschild, "a dramatic, violent homicide under law." Says he: "A society that believes that the killing of a human being is a solution to any problem is deeply uncivilized." Executing murderers does not demonstrate resolute regard for the sanctity of victims' lives. "The marginally demented guy," says Schwarzschild, sees an execution as a prescription, not a threat. "He thinks, 'If the state has a quarrel with Gary Gilmore, it kills him. Then if I have a quarrel with someone, I'll kill him.' We say we think human life is sacred. And then to prove that, we kill somebody. That's crazy."

Capital punishment, says L.D.F. Lawyer Joel Berger "attempts to vindicate one murder by committing a second murder. And the second murder is more reprehensible because it is officially sanctioned and done with great ceremony in the name of us all." Not simply just as bad, but worse: this may be the central emotional truth for those who most passionately disapprove of executions. The cretinous killer or the seething psychopath is a loose cannon. But the well-orchestrated modern execution, careful, and thoroughly considered, is horrible because of its meticulous sanity. Executions are worse, in the abolitionists' moral scheme, because the government is always in control; it knows better, but kills anyway.

Proponents see the distinction between murder and state-sanctioned executions in a different light. "One is legal, the other is not," Van den Haag says. "If I take you and put you in a room against your will, it is called kidnaping. If I put on a uniform and put you in a room against your will, it's called arrest."

What was once perhaps the most potent argument against capital punishment arises less often these days. Yet there is a good chance that an innocent man was hanged in England in the 1950s. And in the U.S. today, as death rows swell and the pace of executions quickens, the risks of such a mistake grow. "You know there are going to be some," warns Michael Millman, a California state public defender. Abolitionist Sanford Kadish, a leading authority on criminal law, is less worried. Says he: "The chances are exceedingly remote."

Kadish puts his trust in the exhaustive system of judicial review that is now required in capital cases. Today no death-row inmate will be executed until his case has been brought to the attention of his state's highest court, a federal district court, a federal circuit court of appeals and the U.S. Supreme Court. The process is properly slow. In California it takes an average of three years after conviction for a capital case to work its way through the state court system alone. The improbably named James Free, 27, is on death row in Illinois for a double murder. Confesses Free: "I'll use every appeals route I can dream up. That will buy time, maybe five or ten more years."

In 1953, by contrast, a pair of Missouri kidnapers were executed only eleven weeks after their crime. A quarter of the people executed during the 1960s had no appeals at all,