Capital Punishment 71
chief fuel is money, and its chief flaw is that only the affluent defendant can be sure of receiving an adequate defense. The history of capital punishment in western civilization in general, and in this country in particular, demonstrates that the poor, members of racial and ethnic minorities, and the physically ugly are disproportionately likely to be executed for capital crimes. As a well-known American attorney once put it,“I've never seen a rich man go to the chair.”
Moreover, cases in which innocent people have been wrongly convicted of capital crimes are disturbingly common. Even when there is eyewitness identification or a confession, the identification sometimes turns out to have been incorrect or the confession is revealed to have been coerced or falsified. Once a person has been executed, the injustice cannot be undone. The risk of executing innocent people cannot be eliminated so long as capital punishment is practiced. The essence of the problem is captured well in the title of a 1974 book by the eminent constitutional scholar, Charles L. Black: Capital Punishment: The Inevitability of Caprice and Mistake.5*
In addition, society should not resort to capital punishment if there are less drastic means of achieving the public policy goals of criminal law. One means of deterring crime and protecting innocent people would be to devote adequate resources to law enforcement. We do not know whether capital punishment deters crime, but we do know that crime decreases as the certainty of punishment increases, whatever the punishment may be. A second means of deterring crime and protecting the innocent would be to impose a genuine life sentence. A person who commits a truly heinous crime can be locked up, safely away from society, for life, without possibility of parole. Society does not need to kill killers in order to protect itself.
These reasons for opposing capital punishment are not uniquely Jewish , but they emerge from a tradition that values both justice and mercy and strives to accommodate both demands. They emerge from a tradition keenly aware that human life could not exist in a world of strict justice, but that human society could not exist in a world of pure mercy. They emerge from a tradition that teaches us that God prays. What is God 's prayer? “May My attribute of mercy overcome My attribute of anger.”*
ven God 's prayer may not always be answered, but its guiding direction is clear.