Ancient Greece's death penalty dilemma and its influence on modern society.

• Author: Blecker, Robert
• Position: The World Yesterday

ABOLITIONISTS attack capital punishment as cruel. Its administration, they insist, is inconsistent, and the jurisprudence which supports it is incoherent. Furthermore, they claim, death as punishment is disproportionate to any crime and out of step with essential values which are at the core of a mature Western democracy. Their attack is substantive (the law cannot adequately define who deserves to die) and procedural (the process of deciding who lives or dies must, but cannot, simultaneously embrace the two core constitutional values of fairness and consistency). Every individual defendant must be treated as a unique human being and, at the same time, like cases must be treated alike.

Death penalty advocates also look to human dignity as their touchstone. They agree that, unless the practice is worthy of a humane culture and the procedures consistent with basic long-standing core commitments, it must be abolished. These last 30 years during the death penalty's "'modern era," in a society deeply split over how to punish murder, and with a Supreme Court regulating every aspect, the changes to death penalty jurisprudence appear to be fast and furious. Taking the long view, however, homicide and how to react to it remain the most conservative aspects of law in Western culture. Thus, we can better hope to resolve this contemporary and complex problem by stepping back 2,500 years, drawing from our cultural wellspring in ancient Greece where Western genius first flowered.

Human beings feel a primal urge to retaliate. From 1200-800 B.C., homicide strictly was personal. If the killer did not escape, the victim's family caught and killed him, or they accepted a "blood price," settling it monetarily--buying the killer peace and the victim's survivors some measure of satisfaction. Yet, within a few centuries after the musings of the poet Homer, a great change took place: The community became consciously and emotionally involved.

The decisive change was the idea (a feeling, actually) that "blood pollutes the land." Thus, independently and at about the same time that the ancient Hebrews in their Bible rejected the "blood price," refusing to allow the killer to buy his way out, so, too, did the ancient Greeks. Repulsed by blood pollution and rejecting the blood price, they expressed the ultimate value of human life concretely--the convicted murderer must die.

In Athens, once the victim's family publicly accused him, the defendant was considered polluting. Anybody who saw him in a public place was allowed to kill him on the spot. The victim's family still might prefer a monetary settlement, but the response to homicide became more them personal payback. Only punishment that canceled the pollution would end the public threat, and only the community could determine how much punishment was enough. This feeling that the victim's blood morally pollutes us until the killer is dealt with adequately--a deep-seated retributive urge--is what moves death penalty advocates today.

While Homer's epics reveal no distinctions among homicides, except a special horror at killing one's own kin, within a few centuries the Athenians established disparate courts to try separate types of killings. The Aeropagus, the highest court of legal guardians, sat en masse to try premeditated murderers and would-be tyrants. A lesser court of 51 members tried unpremeditated killings: another dealt with justifiable killings. A separate court tried a person who killed again while in exile for a prior killing. (Many states today also single out prisoners serving life sentences and repeat killers.) The philosopher Aristotle tells us that these recidivist killers conducted their defense from a boat lest they contaminate the court assembled on the shore.

Finally, them was a special denunciatory court for unidentified killers, animals, or inanimate objects that had caused the death of human beings. If this seems primitive, consider the intense public concern when a California jury condemned Scott Peterson to die, although it is unlikely the state ever will execute him for the murder of his wife Laci and their unborn child. In this case, supporters of the death penalty focused on the jury's declaration of death, its official denunciation, as significant in and of itself. This basic impulse to mark off officially and denounce the worst killings long runs through Western culture.

In ancient Athens, at any time before trial, the accused voluntarily could go into exile, thereby confessing his guilt. Banished forever, still contaminated and contaminating, he never could return. The ancients put it out of their own power to reconsider. No matter how old and infirm the killer, how distant the memory of the victim, how diminished the cost to the family, the pollution never ended--"the voice of your brother's blood" cried out forever. Even after general amnesties and wholesale pardons settled factional wars, in ancient Greece, premeditated homicide always was exempt from pardon.

Today, although abolished in Europe, many states in the U.S. embrace "life without parole" as an alternative for the defendant who pleads guilty. Gallup polls tell us that much of the public prefers life "with absolutely no possibility of parole," although it is highly doubtful that, should we ever abolish the death penalty, those who cry loudest for LWOP will remain as committed as the ancient Athenians never to reconsider that punishment.

If a killer who had fled before trial found permanent exile unbearable, and made his way back home, anybody legally could kill him or alert the authorities. "It shall be permitted to slay [them] but not to abuse them or to extort blackmail," the Athenian Code declared. No torture, even of the condemned who had returned to pollute the community. No blackmail--life could not be bought. No blood price--for blood pollutes the land. Them was one exception, however. Regardless of the community's or family's wishes, if a dying victim forgave his attacker, no pollution attached, even for premeditated murder, then there would be no trial; the family could extract no penalty. Nothing was owed.

Emphasizing forgiveness by the slain, some abolitionists today press for a legally binding "living will"--formally declaring in advance that, "Should I be murdered, no matter how heinously, I wish my killer's life to be spared." Retributivist advocates, too, should give such declarations great weight, short of making them absolutely binding on prosecutors. The past counts and, in life as in death...