But because no more than thirty murderers have been executed in any recent year, most convicts sentenced to death are likely to die of old age 1. Nonetheless, the death penalty looms large in discussions: it raises important moral questions independent of the number of executions 2. It is irrevocable: it ends the existence of those punished, instead of temporarily imprisoning them. Further, although not intended to cause physical pain, execution is the only corporal punishment still applied to adults 4. These singular characteristics contribute to the perennial, impassioned controversy about capital punishment. Consideration of the justice, morality, or usefulness, of capital punishment is often conflated with objections to its alleged discriminatory or capricious distribution among the guilty.

If capital punishment is immoral in se, no distribution cannot affect the quality of what is distributed, be it punishments or rewards. Discriminatory or capricious distribution thus could not justify abolition of the death penalty. Further, maldistribution inheres no more in capital punishment than in any other punishment.

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Because of the finality of the death penalty, the most grievous maldistribution occurs when it is imposed upon the innocent. However, the frequent allegations of discrimination and capriciousness refer to maldistribution among the guilty and not to the punishment of the innocent 5. Maldistribution of any punishment among those who deserves it is irrelevant to its justice or morality. Even if poor or black convicts guilty of capital offenses suffer capital punishment, and other convicts equally guilty of the same crimes do not, a more equal distribution, however desirable, would merely be more equal. The only relevant question is: does the person to be executed deserve the punishment? whether or not others who deserved the same punishment, whatever their economic or racial group, have avoided execution is irrelevant. If they have, the guilt if the executed convicts would not be diminished, nor would their punishment be less deserved. To put the issue starkly, if the death penalty were imposed on guilty blacks, but not on guilty whites, or, if it were imposed by a lottery among the guilty, this irrationally discriminatory or capricious distribution would neither make the penalty unjust, nor cause anyone to be unjustly punished, despite the undue impunity bestowed on others 6.

The ideal of equal justice demands that justice be equally distributed, not that it be replace by equality. Justice requires that as many of the guilty as possible be punished, regardless of whether others have avoided punishment. To let these others escape the deserved punishment does not do justice to them, or to society. These moral considerations are not meant to deny that irrational discrimination, or capriciousness, would be inconsistent with constitutional requirements. But i am satisfied that the supreme court has in fact provided for adherence to the constitutional requirement of equality as much as is possible.

Recent data reveal little direct racial discrimination in the sentencing of those arrested and convicted of murder. 9 the abrogation of the death penalty for rape has eliminated a major source of racial discrimination. Concededly, some discrimination based on the race of murder victims may exist yet, this discrimination affects criminal murder victimizers in an unexpected way. Murderers of whites are thought more likely to be executed than murderers of blacks. However, because most black murderers kill blacks, black murderers are spared the death penalty more often than are white murderers. The motivation behind unequal distribution of the death penalty may well have been to discriminate against blacks, but the result has favored them. In a recent survey professors hugo adam bedau and michael radelet found that 70 persons were executed in the united states between 1900 and 1985 and that 35 were innocent of capital crimes 11.

Among the innocents they list sacco and vanzetti as well as ethel and julius rosenberg. Although their data may be questionable, i do not doubt that, over a long enough period, miscarriages of justice will occur even in capital cases. Despite precautions, nearly all human activities, such as trucking, lighting, or construction, cost the lives of some innocent bystanders. We do not give up these activities, because the advantages, moral or material, outweigh the unintended losses 12.