Capital punishment: what Dostoyevsky knew

IN rejecting racism as a factor in capital punishment, the United States Supreme Court last week confirmed a prevailing mood to make the death penalty ever more legitimate, if not commonplace. About three out of four states now provide for execution, and these proportions, according to polls, come close to representing the views of the citizenry - the death penalty by a landslide, with women and blacks only a little less enthusiastic.

Those of us in the minority who are surprised, and distressed, at the popularity of a punishment that seems less than the finest flower of civilization must look back to history for an explanation, though not a justification. The fact is, if the US is now at odds with the penal codes of most Western nations - if it is vulnerable to the charge that Americans arrive at justice violently - that is nothing new. The periods when capital punishment was out of favor in the United States have been the exception.

The death penalty is a national tradition that dates back to 1641 and the code of the Massachusetts Bay Colony. In the somewhat mistitled ``Body of Liberties,'' it was stipulated that the death penalty be exacted upon those convicted as witches, as blasphemers, or as worshippers of ``any other god.''

One can find reasons closer at hand to explain the growing approval of capital punishment during the past decade or so. There is a latterday skepticism that prison sentences produce much in the way of rehabilitation.

In a more general sense, the restoration of the death penalty represents an inclination, when in doubt, to ``get tough'': with terrorists, with communists, indeed with our own children, and of course with criminals. Down with liberal guilt! Capital punishment may be thought of as the ultimate act of anti-permissiveness.

But the passions on the issue, both pro and con, cannot be accounted for either by fashions in penology or by pop sociology. In this most moralistic of nations, the debate is finally between moralists, and the resonances go back to the Massachusetts Bay Colony, almost 3 centuries ago. One of the more recent books on the subject even gets the word ``morality'' into the title: ``For Capital Punishment: Crime and the Morality of the Death Penalty'' by Walter Berns. With a pious paradox not alien to the Puritans, Berns argues that capital punishment ``enhances the dignity of criminal law'' - in fact, the option of execution is indispensable ``to remind us of the majesty of the moral order that is embodied in our law.''

Similarly, in 1976, the Supreme Court supported the right of states to institute the death penalty with an opinion that recognized a moral need to exact retribution - ``neither a forbidden objective nor one inconsistent with our respect for the dignity of men.''

One senses an almost desperate obligation in these arguments to give capital punishment a moral purpose, first and foremost. In the hearts of proponents of the death penalty, it seems, the most important consideration is to avoid the moral chaos they see as a consequence if the punishment does not fit the crime.

To the opponents of the death penalty this is moral chaos - a most horrible irony - to kill those who wantonly break the law, ``Thou shalt not kill.''

Both sides are talking Right and Wrong, and whether the death penalty serves as a deterrent is not only a moot point but practically beside the point.

Those opposed to capital punishment must find it strange to see execution presented as the moral duty of society to itself, as well as to the victims. The death penalty, if we choose it, would seem to be more of an unpleasant necessity, a reluctant expedience, and best defended on those terms.

Meanwhile, lest capital punishment become too much of an enthusiasm, we might keep a balance by listening now and then to voices from death row, including Dostoyevsky - guilty of opposing censorship - who did not get his reprieve until he was in front of a firing squad. ``To kill someone for committing murder is a punishment worse than the crime itself,'' he wrote out of experience rather than as a moralist. ``Murder by legal sentence is immeasurably more terrible than murder by brigands.''

If Dostoyevsky's reaction seems extreme and uncompromising, consider the extreme and uncompromising punishment he so narrowly escaped.

A Wednesday and Friday column