CAPITAL PUNISHMENT: The Inevitability of Caprice and Mistake by

CAPITAL PUNISHMENT: The Inevitability of Caprice and Mistake

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With the Supreme Court scheduled to ""clarify"" (perhaps rescind) its ruling on the death penalty, this polemic by the noted Yale legal scholar becomes particularly urgent. Eschewing the arguments of ""retribution"" and ""cruel and unusual punishment"" (they cannot be argued, merely accepted intuitively) and ""deterrence"" (no test will ever be possible), Black focuses his opposition around the issue of arbitrariness and the inevitability of mistakes in the decision-making process. He insists, first, that our cultural and legal heritage calls for more clarity and precision in due process when the crime and punishment are severe -- capital punishment especially. The decision to prosecute ""may well depend on matters of policy wholly apart from any question of probable cause"" (quoting from a U.S. appelate court). Plea-bargaining procedures have no legal guides. Jury deliberations on physical facts, psychological facts, insanity, verdict, and sentence are handled according to impossibly vague ""pseudo-standards"" (""greater or lesser passion,"" ""depravity of mind""). Executive clemency and clemency boards have no legal guides. The incompetence of a court-appointed lawyer or an overworked public defender can inadvertently condemn a poor defendant. Finally, a retroactive decision by a higher court on a question of law or the discovery of new evidence may invalidate the verdict after the execution of the sentence. It all makes a damning rebuke. This is a matter of life and death that gives rise to extreme emotions -- but Black offers hard, critical thinking, untainted by vituperation, damn-near flawless.

Pub Date: Nov. 25th, 1974
Publisher: Norton