It was the early summer doldrums of late June.  The year was 1972.  The number one song was Neil Diamond’s Song Sung Blue (really??), and the movies that came out that weekend were The Candidate and Conquest of the Planet of the Apes (not exactly blockbusters like The Godfather).  But there was some relatively big news – bigger, at least, than the news from twelve days earlier that five men had been arrested for breaking into the Democratic National Committee headquarters in the Watergate Hotel.  The bigger news was that the US Supreme Court, by a 5-4 vote, had banned the death penalty.

It was clear at the time that the Court’s slim majority was not stable.  They all had their own different reasons for voting to nullify the nation’s capital punishment laws.  Two wrote that the death penalty was “cruel and unusual punishment”; another wrote that it was discriminatory; another wrote that it was arbitrary (his exact words were, “freakish and wanton”), and still another doubted that executions met any general need for retribution.

It’s almost 40 years later, and the death penalty continues to discriminate, largely on the basis of the race of the victim.  It also continues to be arbitrary – the vast majority of murders do NOT result in a death sentence, and the limited success of capital prosecutions is often determined, not by the heinousness of the crime, but by where the crime is committed and whether the defendant can hire his own lawyer.  The value of retribution in a punishment carried out so rarely and randomly remains doubtful.  And, as more states abolish the penalty or restrict its use (only 11 states carried out executions last year), and as death sentences continue to decline, the “cruel and unusual” argument carries greater weight. 

When the death penalty in the US is abolished again (and permanently), the movies may be different (then again they may not), the songs may be different (we can only hope), but the arguments will be pretty much the same.