In the death penalty debate, human rights could be the real issue
It's capricious, costly, often unfair, and inhumane. It's no longer used in Western Europe. Japan may be on the brink of abandoning it. Those countries that openly embrace it - Iran and South Africa, among them - rank low on the ladder of human rights. Other places where the value of individuals is not paramount - including Argentina, China, the Soviet Union, and Uganda - permit it but are reluctant to talk about it.
In the United States, where it is legal, it is continually talked about. Now it's time for the talking to stop and capital punishment to be abolished once and for all.
Perhaps no single social issue has lingered in controversy in this nation for so long as the death penalty. Executions today are relatively few - eight persons convicted of murder have been executed in the past seven years. And just recently, the armed services suspended capital punishment, pending action by the US Congress or presidential guidelines that would bring military law in line with recent US Supreme Court decisions.
However, there are still over 1,200 prisoners on death row in the 38 states that allow the death penalty - a significant increase over recent years. Many are coming close to the end of the appeals process. So the number of executions could sharply increase in the next few years.
Will the authorities act to abolish the penalty? Currently that doesn't seem likely. The public's views are too inconsistent, and this ambivalence is reflected in the actions of the courts and elected officials. Public opinion polls indicate a majority of Americans favor the practice. However, most also want legal safeguards against unjust executions, fairness in the process, and insurance against ''cruel'' practices.
Up to now, the US Supreme Court has flatly refused to term execution ''cruel and unusual'' punishment - and therefore to outlaw it under the Eighth and Fourteenth Amendments. What the high court has done for over a decade is to narrow the grounds under which this penalty can be imposed - mandating state standards with a view towards fairness and equality.
In November, the court will hear arguments over whether it should require all states to conduct a ''proportionality review'' before imposing the penalty. Under this process, appellate courts would examine whether new sentences are consistent with those previously handed down for similar crimes. (Texas sentencing procedures do not now include such a review, and it was on this basis that convicted murderer James Autry's execution was stayed afew weeks ago.)
Last term, the high court handed down two decisions related to the penalty - both controversial. One allows lower courts to shortcut the long, tedious appeals process in considering stays for those on death row. (Civil rights groups fear executions could be unduly hastened by this ruling.) The court also permitted the use at hearings of psychiatrists' testimony concerning the danger a defendant might pose in the future, even though the American Psychiatric Association has admitted that such testimony may be unreliable.
Even with the safeguards required by the courts, can capital punishment be justified?
On procedural grounds, it is shaky. The process of conviction, review, and sentencing is cumbersome, inconsistent, and open to error. Associate Supreme Court Justice Lewis F. Powell - who up to now has opposed ending the death penalty - told a group of federal judges that unless the judicial system finds a more efficient and straightforward way to handle these appeals, capital punishment should be abolished.
On fairness grounds, there are even more serious questions. There is a disproportionately high number of arrests of the poor and minorities in the US. One study extends this view to convictions and sentencing. Looking at 1,200 capital cases in Georgia between 1973 and 1979, a University of Iowa law professor showed that a black person who killed a white was 3.7 times as likely to be sentenced to death as a white who killed a white. Prosecutors also were more prone to press for execution where a black was involved.
On moral grounds, the question is a poignant one: Should a society which places prime value on the dignity of the individual legally sanction execution? Franklin E. Zimring, acting director of the University of California's Earl Warren Legal Institute, has written: ''The correlation between capital punishment and governmental human rights violations is so strong that the list of actively executing countries matches that of countries that torture and are politically oppressive.''
The point is that capital punishment seems to thrive in those places where the dignity of the individual is not greatly valued. To Americans, who consider the reverse to be true, human life should certainly be held dear.