The Death Penalty: An Eye for an Eye

COVER STORY

Death Row (pop. 1,137) may soon lose a lot more residents to the executioner

The chair is bolted to the floor near the back of a 12-ft. by 18-ft. room. You sit on a seat of cracked rubber secured by rows of copper tacks. Your ankles are strapped into half-moon-shaped foot cuffs lined with canvas. A 2-in.-wide greasy leather belt with 28 buckle holes and worn grooves where it has been pulled very tight many times is secured around your waist just above the hips. A cool metal cone encircles your head. You are now only moments away from death.

But you still have a few seconds left. Time becomes stretched to the outermost limits. To your right you see the mahogany floor divider that separates four brown church-type pews from the rest of the room. They look odd in this beige Zen-like chamber. There is another door at the back through which the witnesses arrive and sit in the pews. You stare up at two groups of fluorescent lights on the ceiling. They are on. The paint on the ceiling is peeling.

You fit in neat and snug. Behind the chair’s back leg on your right is a cable wrapped in gray tape. It will sluice the electrical current to three other wires: two going to each of your feet, and the third to the cone on top of your head. The room is very quiet. During your brief walk here, you looked over your shoulder and saw early morning light creeping over the Berkshire Hills. Then into this silent tomb.

The air vent above your head in the ceiling begins to hum. This means the executioner has turned on the fan to suck up the smell of burning flesh. There is little time left. On your right you can see the waisthigh, one-way mirror in the wall. Behind the mirror is the executioner, standing before a gray marble control panel with gauges, switches and a foot-long lever of wood and metal at hip level.

The executioner will pull this lever four times. Each time 2,000 volts will course through your body, making your eyeballs first bulge, then burst, and then broiling your brains . . .

That big old mahogany armchair is practically antique, but it still works. First used in 1890, it is the world’s oldest and most prodigious electric chair: 695 convicted men and women died in its grip, nearly one a month for the better part of a century. For most of those years it was housed at Sing Sing, contributing to that place’s hellhole notoriety. Now it squats on the fourth floor of Green Haven prison in New York.

But the state has killed no one since the summer of 1963, when Eddie Lee Mays was electrocuted at Sing Sing. And for some time to come, this prototypical electric chair with the flip nickname (“Old Sparky”) seems likely to remain nothing more than a grim curiosity. The state’s new Governor, Mario Cuomo, promises to veto any capital-punishment statute the New York legislature passes, just as his predecessor did every chance he got.

But New York is not typical of these angry tunes. The country’s decade-long moratorium on capital punishment ended in 1977 when Gary Gilmore dared Utah to shoot him and, six years ago this week, Utah obliged. Five men have been executed since. One shared Gilmore’s flashy passion for martyrdom: Jesse Bishop, who gunned down a newlywed during a casino holdup, practically volunteered for Nevada’s gas chamber. Three were electrocuted: John Spenkelink in Florida, for killing a ne’er-do-well like himself; Steven Judy in Indiana, for strangling a motorist he waylaid and drowning her three children, ages two to five; and Frank Coppola in Virginia, for bludgeoning to death his robbery victim. Last month in Texas, Charlie Brooks Jr., the only black among the six, achieved a milestone when he became the first American ever executed by means of a drug overdose.

Other states seem anxious to get in step. Two weeks after Brooks was executed, Massachusetts became the 38th state with a death penalty on the books, and Oregon seems likely to become the 39th, 20 years after capital punishment was abolished there by popular vote.*

The national death-row population today is 1,137. That is 200 more than a year ago, twice as many as in 1979, and larger, moreover, than ever before. Florida alone has 189 death-row prisoners, Texas has 153, Georgia and California 118 each. The inmates include about a dozen teenagers, 13 women (five of them in Georgia) and six soldiers. Half of the condemned are white.

The long-building public sentiment to get tough with violent criminals, to kill the killers, seems on the verge of putting the nation’s 15 electric chairs, nine gas chambers, several gallows and ad hoc firing squads back to regular work. In addition, five states have a new and peculiarly American technique for killing, lethal anesthesia injections, which could increase public acceptance of executions. Experts on capital punishment, both pro and con, agree that as many as ten to 15 inmates could be put to death this year, a total not reached since the early 1960s. “People on death rows are simply running out of appeals,” says the Rev. Joe Ingle, a prison activist and death-penalty opponent. “I fear we are heading toward a slaughter.”

For years, the capital-punishment debate has been sporadic and mainly intramural—professor vs. professor, lawyer vs. lawyer—as executions took place only once or twice annually at most. Says Florida’s Governor Robert Graham, who signed Spenkelink’s death warrant in 1979: “We haven’t enforced the death penalty much, so we’ve been able to avoid all the responsibilities that go with that experience.”

But now an old array of tough questions—practical, legal, moral, even metaphysical—is being examined. Is the death penalty an effective, much less a necessary, deterrent to murder? Is it fair? That is, does it fall equally on the wealthy white surgeon represented by Edward Bennett Williams and the indigent black with court-appointed (and possibly perfunctory) counsel? Most fundamental, is it civilized to take a life in the name of justice?

Fear, pure and simple, is behind the new advocacy of the death penalty. Between 1960 and 1973, the U.S. homicide rate doubled, from 4.7 murders per 100,000 people to 9.4. The rate has leveled off considerably and stands at 9.8 per 100,000 today. (Other countries’ rates are, by U.S. standards, amazingly low: England, 1.1, and Japan, 1.0, are typical.) No more precipitous increases are expected this century: criminologists believe that the murder spree of the ’60s and early ’70s was mostly the doing of World War II baby-boom children passing through their crime-prone years of adolescence and young adulthood. As it happened, the number of young people and cheap, readily available handguns burgeoned at the same time. Handguns are used in 50% of U.S. murders.

But a U.S. public that has felt terrorized by murderers and thugs is unreceptive to promises that the worst may be over and understandably finds the current level of violent crime intolerable. According to a Gallup poll last fall, 72% of Americans now favor capital punishment, up from just 42% in 1966. “People are frightened and upset about crime in the streets,” says William Bailey, a Cleveland State University sociologist. “Nothing seems to be done to solve the problem, so the feeling grows that if we can’t cure murderers, something we can do is kill them.” Jim Jablonski, 44, a Chicago steelworker, speaks for a lot of furious citizens. “Murderers got to pay,” he says. For him the next sentence follows self-evidently: “I say, fry the bastards.”

Execution by injection may be too new to have its tough-guy slang like “fry.” But last month outside the prison at Huntsville, Texas, the sentiment was the same. As Charlie Brooks waited to be injected, a crowd of 300 gathered to celebrate. Some of the pro-execution revelers, mostly college students, carried placards; KILL ‘EM IN VEIN, said one. “Most of the people I know are for capital punishment,” declared Paula Huffman, 21, a Sam Houston State University senior at the deathwatch. “And so am I. Definitely.” Nevertheless, when the moment arrived, just after midnight, she and the rest of her shivering, smiling chums suddenly turned quiet and grave.

Historically, American executions were public, the last in Kentucky in 1936. Hanging was standard for 200 years, through the 1800s. More primitive means—burnings in particular—were extreme rarities even in the 17th century. Up until 1900, nearly all executions were carried out by local jurisdictions; lynchings were as frequent as legal hangings. But by the start of the Depression, state authorities had mostly taken over the grim chore.

At that time, the U.S. was hardly less murderous than it is today. In 1933 there were 9.7 homicides per 100,000 Americans, which is just shy of the 1981 figure. The murder rate began a steady decline in 1934, but judges and juries meted out death sentences at a ferocious clip for the rest of the ’30s. As many as 200 people a year were legally executed, more than ever before or since in the U.S. During the ’30s, and even through the ’50s, executions were so routine that they merited at most a paragraph or two in out-of-town newspapers.

Not just murderers were put to death. Rapists were executed every year in the U.S. until 1965.* After 1930, there were 455 men executed for rape, most of them in the South and 89% of them black, a majority grotesquely out of proportion to black sexual offenses. Black murderers too were executed much more frequently than white killers, a pattern that prevailed through the 1960s.

After World War II, executions became less popular. The reduction was steady: 82 by 1950, 49 in 1959 and finally just two in 1967, one of whom was Aaron Mitchell, a California murderer denied clemency by then Governor Ronald Reagan. The nation’s chairs, gallows and gas chambers were temporarily retired partly because judicial standards became more scrupulous—often after legal battles waged by the NAACP Legal Defense Fund (L.D.F.) and the American Civil Liberties Union—and, more ineffably, as an extension of two centuries of penal reform (see box). But most important, during the decade and a half after the war, the U.S. homicide rate stayed fairly constant and unalarming, never rising above 6.4 per 100,000 (in 1946). Year after year, there were roughly 8,000 killings (a third of the 1981 total), seemingly as predictable and steady as deaths from accidental drownings (5,000 a year) or falls (19,000). Americans felt unthreatened. They could afford the emotional luxury of indulging their instincts for reason. During 1964 and 1965, three states (Oregon, Iowa and West Virginia) abolished capital punishment, and Vermont narrowed its applicability mainly to those who murdered policemen or prison guards.

But in most places the retreat from capital punishment was not a formal, statutory change. At any one time no more than a third of the states have been without a death-penalty provision. It seems that Americans want it both ways, retaining the right to exterminate miscreants, as well as having the option not to exercise that awful power. It is easy and sometimes appealing to talk tough and demand mercilessness in the abstract. But to really “fry the bastards”? How many? Which ones? “What a person says on a public opinion poll,” observes Thomas Reppetto, president of the Citizens Crime Commission of New York City, “and what they’ll say on a jury, might well be two different things.”

The ambivalence seemed apparent in last November’s elections, when capital punishment was a potent political issue but not a decisive one. Like New York, Massachusetts this month inaugurated a Governor opposed to the death penalty. But just three weeks earlier, the legislature in Boston had once again legalized executions. Even increasingly hard-line voters in California chose an attorney general who disapproves of capital punishment.

The uneasiness with capital punishment has led this nation of tinkerers to an odd inventiveness. Elsewhere in the world where executions are still regularly carried out—among industrialized nations, only Japan, South Africa and the Soviet Union—the bullet and the noose are used exclusively. Yet in the U.S., only half a dozen states call for old-fashioned firing squads or hangings. The electric chair killed quickly and, it was thought, painlessly. It seemed, in any case, up to date, civilized. (This progressive image is somewhat at odds with the testimony of Willie Francis, 17, who survived a sublethal shock by Louisiana’s portable apparatus in 1946. Francis said the experience was in all “plumb miserable.” His mouth tasted “like cold peanut butter,” and he saw “little blue and pink and green speckles.” Added Francis: “I felt a burning in my head and my left leg, and I jumped against the straps.” A year later, back in the chair, he was successfully executed.)

The electric chair caught on slowly in the U.S. and not at all abroad. During the 1920s and ’30s, the cyanide-gas chamber became state-of-the-American-art. It too was popular only in the U.S. Now there are lethal injections, which are seen as still more “humane.” This latest technical refinement, which the European press finds chilling and fascinating, seems sure to remain strictly a U.S. practice. Sums up Notre Dame Theology Professor Stanley Hauerwas: “This search for a humane way of killing is a bunch of sentimental secular humanism. Why do you want it to be humane? To reassure yourself?”

The dilemma of whether to kill the killers comes up in only a small fraction of all U.S. homicides. The criteria for capital murder vary from state to state and even, inevitably, from case to case. In general, there must be “aggravating circumstances.” These can be as specific as the murder of a fireman or one by an inmate serving a life sentence; as common as a homicide committed along with a lesser felony, like burglary; and as vague as Florida’s law citing “especially heinous, atrocious or cruel” killings. It is estimated that about 10% of U.S. homicides currently qualify, or some 2,000 murders last year. Those killings are the ones the threat of capital punishment is meant to prevent.

The idea of deterrence can be quickly reduced to very personal rudiments: If I know I will be punished so severely, I will not commit the crime. The logic is undeniable. Yet in the thickets of real life and real crime, deterrence, while central to practically all punishment, is often very uncertain, and its effect on prospective murderers is especially unclear. Unfortunately, public discussion usually consists of flat-out pronouncements. Capital punishment, says Conservative Commentator William F. Buckley, “is a strong, plausible deterrent.” No, declares New York Governor Cuomo, “there has never been any evidence that the death penalty deters.” Neither is altogether wrong, but the stick-figure oversimplifications on both sides do a disservice to a complicated question.

The scholarly evidence is not quite as unequivocal as some abolitionists claim. But it does not make much of a case for deterrence. The most persuasive research compared the homicide rates of states that did and did not prescribe the death penalty. For instance, Michigan, which abolished capital punishment in 1847, was found to have had a homicide rate identical to adjacent states, Ohio and Indiana, that were executing. Similarly, Minnesota and Rhode Island, states with no death penalty, had proportionately as many killings as their respective neighbors, Iowa and Massachusetts, which had capital punishment. In 1939 South Dakota adopted and used the death penalty, and its homicide rate fell 20% over the next decade; North Dakota got along without capital punishment for the same ten years, and homicides dropped 40%.

Similar before-and-after studies in Canada, England and other countries likewise found nothing to suggest that capital punishment had deterred murderers any better than the prospect of long prison terms. And in Britain during the 1950s, a typical “lifer” actually served only about seven years, compared with a much tougher average U.S. “life” term today of 20 years. A comprehensive study in the U.S., by the National Academy of Sciences in 1978, also found that the death penalty had not proved its worth as a deterrent.

Were it not for the work of Economist Isaac Ehrlich, the deterrence debate would be entirely one-sided. Using econometric modeling techniques to build a “supply-and-demand” theory of murder, Ehrlich argued in a 1975 paper that capital punishment prevents more murders than do prison sentences. Because of the 3,411 executions carried out from 1933 to 1967, Ehrlich speculates, enough potential murderers were discouraged so that some 27,000 victims’ lives were saved.

That stunning conclusion drew immediate attacks. Critics, and they are legion, cite a variety of defects: Ehrlich did not compare the effectiveness of the death penalty with that of particular prison terms; his formula does not work if the years between 1965 and 1969 are omitted; and in accounting for the increase in homicides during the ’60s, he neglects the possible influences of racial unrest, the Viet Nam War, a loosening of moral standards and increased handgun ownership.

To work at all, deterrence requires murderers to reckon at least roughly the probable costs of their actions. But if a killer is drunk or high on drugs, that kind of rational assessment might be impossible. Passions are often at play that make a cost-benefit analysis unlikely. Most killers are probably not lucid thinkers at their best. Henry Brisbon Jr. (see box) may be legally sane, but he is by ordinary standards demented enough to make a mess of any theory of deterrence. Says New York University Law Professor Anthony Amsterdam: “People who ask themselves those questions—’Am I scared of the death penalty? Would I not be deterred?’—and think rationally, do not commit murder for many, many reasons other than the death penalty.”

Former Prosecutor Bernard Carey, until 1980 state’s attorney for Cook County, favors capital punishment, sparingly used. Yet he says, “I don’t think it’s much of a deterrent because the kinds of people who commit these crimes aren’t going to be deterred by the electric chair.” Some might be encouraged. “For every person for whom the death penalty is a deterrent,” says Stanford Psychiatry Professor Donald Lunde, “there’s at least one for whom it is an incentive.” Such murderers, says Amsterdam, “are attracted by the Jimmy Cagney image of ‘live fast, die young and have a beautiful corpse.’ ”

The arguments for capital punishment are usually visceral or anecdotal. Ernest van den Haag, professor of jurisprudence and public policy at Fordham University, says flatly, “Nobody fears prison as much as death.” Florida’s Governor Graham, who has signed 45 death warrants, cites the case of a restaurant robbery seen by a customer. “Afterward,” recounts Graham, “he was the only witness. So the two guys took him out to the Everglades and shot him in the back of the head. If they had felt that being convicted for robbery and first-degree murder was sufficiently different, they might have had second thoughts.”

In a sense, death’s deterrent power has never really been given a chance in the U.S. Even during the comparative execution frenzy of the 1930s, hardly one in 50 murderers was put to death, a scant 2%. Reppetto estimates that if 25% of convicted killers were executed, 100 a week or more, there might be a deterring effect. But it is unthinkable, he agrees, that the U.S. will begin dispatching its villains on such a wholesale basis. Even at a rate of 100 executions annually, an implausibly high figure given today’s judicial guarantees, a killer’s chances of getting caught, convicted and executed would for him still be comfortably low 250 to 1.

Even if executions were on television, there is no guarantee that prospective ax murderers would pay heed. As Camus noted in his 1957 essay against capital punishment: “When pickpockets were punished by hanging in England, other thieves exercised their talents in the crowds surrounding the scaffold where their fellow was being hanged.”

But U.S. society is not unprotected just because it lacks weekly or daily executions. “The issue is not whether we slay murderers or free them,” notes University of Michigan Law Professor Richard Lempert. “It is whether we send them to their death or to prison for life.” Prison is a far more manageable weapon than death, and the U.S. is not at all hesitant to put criminals behind bars: the population there has doubled since 1970, to 400,000. “One trouble with the death penalty,” says Henry Schwarzschild, an A.C.L.U. official, “is that it makes 25 years seem like a ight sentence.”

Opponents of capital punishment feel that prison terms without parole would deter as many potential murderers as the death penalty. Says Amsterdam: “The degree of punishment is not necessarily a deterrent even to someone who thinks rationally. What deters people from crime is the likelihood of getting caught and undergoing punishment.” Reppetto agrees: “I always favor something that will get tough with a lot of offenders instead of getting very tough with just a handful.”

To diehard proponents of the death penalty, deterrence hardly matters anyway. Declares Buckley: “If it could be absolutely determined that there was no deterrent factor, I’d still be in favor of capital punishment.” Taking the lives of murderers has a zero-sum symmetry that is simple and satisfying enough to feel like human instinct: the worst possible crime deserves no less than the worst possible punishment. “An eye for an eye,” says Illinois Farmer Jim Hensley. “That’s what it has to be. People can’t be allowed to get away with killing.” Counters Amsterdam: “The answer can hardly be found in a literal application of the eye-for-an-eye formula. We do not burn down arsonists’ houses.” The scriptures do preach mercy as well as retribution. Last Saturday, in fact, Pope John Paul II sweepingly recommended “clemency, or pardon, for those condemned to death.”

The Moral Majority’s Rev. Jerry Falwell relies more peculiarly on Christian authority. He claims that Jesus Christ favored the death penalty. On the Cross, Falwell says, He could have spoken up: “If ever there was a platform for our Lord to condemn capital punishment, that was it. He did not.”

But was Jesus ever vengeful? Ordinary people are. “Execution is primarily a vengeance mechanism,” says Notre Dame’s Hauerwas, a pacifist, “but that is not necessarily a bad thing. Vengeance is a way society gestures to itself that justice has force against injustice.” A main point of criminal laws, after all, is to make private feuds unnecessary. “No society should put the burden on me to seek personal retribution,” says New York University’s Herbert I. London, a social historian. “The state has an obligation not to make me a killer.”

During troubled times in the ancient Greek colonies, poor men would volunteer to be scapegoats. Each was housed and well fed by the authorities, and then, 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, and two-thirds of their cases were never reviewed by any federal court.

The historic decision came in 1972, after five years without an execution, and just as fierce public majorities were forming in support of capital punishment. In Furman vs. Georgia, the Supreme Court nullified all 40 death-penalty statutes and the sentences of 629 death-row inmates, declaring that judges and juries had intolerably wide discretion to impose death or not. This lack of standards made the death sentence “freakishly imposed” on “a capriciously selected random handful” of murderers, wrote Justice Potter Stewart. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Within a few years, 37 state legislatures had passed statutes designed especially to meet the court’s objections.

Most of the new laws went too far, mandating death for certain murders regardless of circumstances, and were overturned by the court. But the statutes adopted by Georgia, Florida and Texas were ruled acceptable. Death is a constitutional punishment, the court decided, not cruel or unusual as long as the judge and jury have given due consideration to the murderer’s character and the particulars of his crime, the “mitigating factors.”* Against these are weighed the aggravating factors that distinguish capital murder from ordinary homicide.

The court’s decisions since have essentially been refinements and tidying addenda. Last January in Eddings vs. Oklahoma, for instance, the Justices ruled that the judge or jury must consider any mitigating factor the convict claims. Yet to many observers, that sounds like a return toward uncontrollable discretion, the very flaw the court prohibited in 1972. Says former L.D.F. Lawyer David Kendall: “We’re right back to Furman.”

Abolitionists hope so, anyway. They are now arguing a subtle paradox. The prudence and selectivity required by the court, they say, means that executions will be carried out only rarely, and thus will remain arbitrary and freakish, a sort of death lottery. There is always caprice along the way to death row. Prosecutors have great leeway in deciding which homicides to try as capital murders. A killer can be persuaded to testify against an accomplice to save his own life. Brooks was convicted and executed; for the same murder his partner must serve only eight more years in prison.

The Supreme Court’s refusal last month to stay Brooks’ execution does not give abolitionists much hope for a new landmark ruling in their favor. “We’ve become technicians,” says the L.D.F.’s Berger of his small litigious corps. “The great moral issues have been removed from the legal arena.”

At the time of Furman it was widely recognized that the system was unquestionably stacked against black defendants, especially in the “death belt” of the South. Some of the racism has been wrung out. Yet clear bias remains, much attributable to prosecutorial choices. A recent study of homicide cases in Houston’s Harris County is troubling. In cases where a black or Chicano had killed a white, 65% of defendants were tried for capital murder; only 25% of whites who killed a black or Chicano faced the death penalty. “I don’t think it’s overt racism,” says University of Texas Law 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 stuck in some weird, high-strung limbo between hope and hopelessness. Inmates’ optimism is the manic wishfulness of losing gamblers. Their fatalism is generally not wise but numb, a brute shrug.

In Illinois, death row is up on a bluff in a sandstone prison opened in 1878. The 49 current inmates have a 19th century landscape artist’s view—the Mississippi River and miles of rich farmland beyond—except for the bars and razor wire. Menard Correctional Center (pop. 2,600) is the principal industry of Chester, Ill. (pop. 8,000). The inmates, two of whom are scheduled to be electrocuted this spring, are alone in their cells for at least 21 hours a day. When they are in transit, once a day to the law library and once a day to the recreation room, they are handcuffed. Four of them are “honor residents,” permitted to roam unchained in the gray hallways. One of these is John Wayne Gacy, 39, the building contractor and amateur clown convicted three years ago of murdering 33 young men and boys.

Death row is about the same size in Alabama, where 55 men await the chair in Holman. Mitchell Rutledge, 23 years old, I.Q. 84, is among them. “You’re just sitting there waiting for somebody to come kill you,” says Rutledge of his purgatory, “just like a dog out there in the dog pound.” But he does not claim innocence. No: he did kill a man two days before Christmas 1980. Rutledge was doped up and drunk with two friends. One pal brought along a gun, and with it they took off on a joyride in the van of a driver they had robbed of $20 and stashed in the back. It was decided that the victim, Gable Holloway, 28, should die. He begged for his life. But Rutledge, like a zombie, took the pistol and fired. He fired again and again, five shots in all.

On death row, Rutledge, who was orphaned as a teenager, is visited only by his lawyer. He seems full of remorse. “I can’t make nobody feel sympathy for me for what I did,” he says. “But I just want to let everybody know that I’m sorry for what I did.”

To most people the life of a foolish punk like Rutledge does not count for much. He is defective. His death would not be unbearably sad, but his destruction by the state of Alabama would be: not a large tragedy, not final proof that the U.S. is barbaric, but still better left undone. Executing Rutledge would be a waste, not so much of his diminished humanity, but of society’s moral capital. The gunslinging heroes of corny adventure fiction had it right: there are guys not worth killing. Let Rutledge sit and stew in his 8-ft. by 5-ft. pen in Alabama. Forget him.

But then blue-eyed, kind-looking Lawrence Bittaker jerks into view, disrupting high-minded composure. Bittaker, 42, is on death row at San Quentin for kidnaping and murdering five teen-age girls. But that is not all. He and a partner raped and sodomized four of them first, for hours and days at a time, sometimes in front of a camera. But that is not all. He tortured some of the girls—pliers on nipples, ice picks in ears—and tape-recorded the screams. But that is not all. The last victim was strangled with a coat hanger, her genitals mutilated and her body tossed on a lawn so that he could watch the horror of its discovery.

If not for the Bittakers (and Judys, Gacys, Mansons, Specks and Starkweathers), the capital-punishment debate might already have been decided in the abolitionists’ favor. Bittaker’s prosecutor had an apt beyond-the-pale phrase for Bittaker and his partner: “mutants from hell.” Can they be human? Without killers in this league, more of America’s logic and instinctive sense of mercy could prevail. There might be more electorates like Michigan’s and more Governors like New York’s who declare that capital punishment is unworthy of a decent society.

Administration of the death penalty perhaps cannot be made fair enough. As a deterrent, it is probably not necessary. But public passions are inflamed by the inevitable monsters. Civil reason is suspended in the face of what looks like evil incarnate. “It’s an emotional issue. It’s not a rational issue.” Says who? Lawrence Bittaker, an emotional man, whose life is very hard to save.

—By Kurt Andersen.

Reported by Lee Griggs/Chicago, B.J. Phillips/Atlanta and Janice C. Simpson/New York

* Other states now without a death penalty: Alaska, Hawaii, Iowa, Kansas, Maine, Michigan, Minnesota, North Dakota, Rhode Island, West Virginia and Wisconsin.

* There is still one man condemned to die for a crime other than murder: Lucious Andrews, 31, sentenced in Florida in 1981 for the “sexual battery of a child.”

* Of the nine on today’s Supreme Court, only Thurgood Marshall and William Brennan believe that the death penalty itself is unconstitutional.