The Bitter Fruit of American Justice: International and Domestic Resistance to the Death Penalty

at the very least, must be suspended. This signal event will not rule out executions in all possible worlds. But the onus will then be on those who would have it resume to shore up safeguards and “improve” procedures so that only the guilty will be executed. The history here is far from encouraging. Such e=orts were made thirty years ago, and their failure has been complete.

In 1972, when the Supreme Court ruled in Furman v. Georgia that the death penalty as then applied was arbitrary and capricious and therefore unconstitutional, a majority of the Justices expected that the adoption of narrowly crafted sentencing procedures would protect against innocent persons being sentenced to death. Yet the promise of Furman has not been fulfilled: It is now irrefutable that innocent persons are still being sentenced to death, and the chances are high that innocent persons have been or will be executed . . .88 For (the comparatively small number of ) those who support retentionism on utilitarian grounds, providing the system with its requisite “fix” would come at improbably great cost. Given the current lack of proof that the death penalty is a greater deterrent than its (far less expensive) alternative, together with the need to introduce substantive (and expensive) due process safeguards, calculation of the utility of a “fixed” system is almost certain to yield a net loss in good consequences, however these are construed. Whatever gain there might be from establishing a system that markedly reduced the probability of executing the innocent, it would be outweighed by the other factors that must be part of the calculation. And this is surely the case when alternative sanctions—such as life imprisonment or life without parole—are considered, as they must be. It is unfortunate that justifications of the death penalty, whether utilitarian or retributivist, frequently neglect the need for arguments to establish the comparative superiority of the death penalty as punishment.

As Stephen Nathanson notes, “[I]f the death penalty is to be justified . . . it must be the case that there are no feasible, morally preferable alternatives to the death penalty, no policies that are available to us and that would be equally e=ective in saving these innocent lives.”89 Pure, or thoroughgoing, retributivists will know that there is no possible way of fixing the system to insure that only the guilty are executed. The same is true, of course, for commonly advanced alternatives, such as long-term imprisonment or even life without parole; there is no way to guarantee that the innocent will not receive these sanctions. It is here that the issues of finality and of irrevocability are pivotal. Alternative sanctions reserve an appropriately severe sanction for those guilty of the most heinous crimes, but also preserve the 168 domestic resistance to the death penalty