By Frank Borzellieri

NE of the basic issues the case of Bernhard Goetz - New York's "subway vigilante" - has brought to light is a person's right to defend himself, once again focusing the public opinion spotlight on gun control.

The knee-jerk reaction of many dealing with the gun control question is simple: guns are evil and therefore must be banned. This train of thought has dominated the New York area and similar crime-plagued areas through­out the country. It has also shown itself to be not only ineffective, but naive and dangerous. New York, despite the tightest gun control law in the nation, has not even remotely provided adequate protection for its citizens.

In 1980, New Yorkers viewed their mayor on a television commercial proudly proclaiming the passage of what was hailed рч "the toughest gun law in America." As Ed Koch strode through a city prison, he informed the

Mr. Borzellieri is a free-lance journalist from Glendale, N. Y.

public of the consequences of being caught possessing an illegal handgun. "If you've got the gun, we've got the space," Koch said as he opened a cell door.

Koch's intentions were noble, but wouldn't the subway riders prefer the "space" be reserved for the armed mugger, rather than the decent, though illegally armed, janitor who works the midnight shift to support his family and feels it necessary to carry a weapon to ensure that he can arrive at his destination safely? More recently, the mayor rekindled mem­ories of his 1980 proclamation with another profound statement imme­diately following the Goetz shooting of four alleged muggers. "We will not tolerate vigilantism in New York," Koch warned the potential copycat shooters. Again, wouldn't his consti­tuents feel more secure if Koch assured, "We will not tolerate crime."? The sad truth is that New York does tolerate crime, and its gun law insures this toleration.

"They don't protect you in New York, but then they tell you, 'Don't you dare have a gun.'" Those words,

Roy Innis: "With the armed criminal and the restrictive laws disarming the citizen, we have, in fact, aided and abetted- the criminal by making his work less difficult."

spoken by Bernhard Goetz, hit the nail precisely on the head and reveal certain inconsistencies in the gun control question. When an astute pol­itician like Koch, normally a tough, anti-crime mayor, fails to see these misconceptions, it is time to reveal to the public the truth behind the entire gun issue.

Civil rights leader Roy Innis, chair­man of the Congress of Racial Equality (CORE), has studied the gun question for many years. Innis, who offered to defend Bernhard Goetz for nothing even before he surrendered, is the only prominent black leader to back Goetz. Innis blasts those who offer what he terms "liberal knee-jerk" arguments:

The conventional wisdom around the gun question in the society we live in is that guns are dangerous, guns should be restricted, guns should be kept out of the hands of people. But when you look at this conventional wisdom, it doesn't stand up, really, to reason because the fault of the question of keeping guns out of the hands of people, is the mistaken assump­tion that you can, in fact, keep guns out of the hands of people.

106 AMERICA IN CLOSE-UP

2. continued

Innis speaks wisely of the pragmatic effects, the tangible effects, that re­strictive gun laws have demonstrated: New York, with the toughest gun law in the country, has not done very much to disarm the criminal. It has effectively disarmed the citizen. It has effectively made the citizen prey to the armed cri­minal. Carrying a gun, to a lifelong criminal, is just another felony in a series of felonies that that person has dedicated

his life to. So the fact that criminals are armed should not be strange to us. What is the problem is that, with the armed criminal and the restrictive laws disarm­ing the citizens, we have, in fact, aided and abetted the criminal by making his work less difficult. A well-thinking criminal will have to be a strong advocate of tight gun control.

Roy Innis has done more than reveal the tragic results of this gun law situation. He has proposed a plan

that will loosen the gun laws, allowing decent citizens to carry weapons. The Innis plan is a manifold, high-result program. What he is trying to do is give the public back what is rightfully theirs according to the Constitution and to do so in the perspective of what is pragmatically best for society, not what simply seems the best. . ..

USATODAY/JULY 1985

Koch, Edward I.: see page 19.

Congress of Racial Equality: (CORE), a black nationalist organization founded in 1942. ".. .what is rightfully theirs according to the Constitution. ..": 2nd Amendment: A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

О Parting Thoughts

The Death Penalty: Legal Cruelty?

HE execution of Gary Mark Gilmore by a Utah firing squad on Jan. 17, 1977, marked the end of a 10-year moratorium on the use of capital punishment in the U.S. Since that time, seven more executions have taken place — one each in Alabama, Florida, Illinois, Mississippi, Nevada, Virginia, and Texas. The latest innova­tion in the manner of killing was revealed in Texas on Dec. 14, 1982, when Charlie Brooks, Jr., was put to death by lethal injection. This new method of execution raises additional ethical issues in the debate over the death penal­ty. As a consequence of these eight executions and the impending death of numerous other death row inmates; the issue of capital punish­ment is once again in the public forum.

In 1972, at the time of the Furman v. Georgia decision, 629 persons were housed on death rows throughout the U.S. Today, just over 10 years later, the death row population exceeds 1,100 - 500 condemned persons more than at the time of Furman! While the debate over capital punishment has continued sporadically, and for the most part academically, over the past 20 years, the issue today takes on a greater sense of urgency. The sheer size of the death row population creates a significant moral dilemma for our society. In addition, since the appeals process for many of these condemned persons has been virtually exhausted, the debate takes on a heightened sense of immediacy. In short, under the present conditions, the debate

LAW, CRIME, AND JUSTICE 107

is far less an academic exercise over the signi­ficant levels of deterrence data than it is a signi­ficant public issue related to the concept of justice in our society.

The fundamental question which must be addressed with respect to the death penalty is under what circumstance does the state have the right to take the life of one of its citizens? That question, with respect to the use of capital punishment for first-degree murder convictions, was answered by the Supreme Court in the Furman and Gregg decisions. In those cases, the Court held that the death penalty itself does not contravene the Eighth Amendment's prohibi­tion against cruel and unusual punishment as long as it is applied in a fair and impartial manner. The Gregg decision further clarified the procedure which the sentencing court must use in determining the fate of the guilty defendant.

What has been overlooked in these decisions is that the Supreme Court has answered the question only in a legal and not in any moral or ethical sense. One hard lesson which the world should have learned as a consequence of the Holocaust is that law and justice are independent concepts. Law is the derivation of a society's interpretation of justice which is relative both to time and place. Furthermore, the creation of law is more frequently the result of the inter­pretation of justice by the powerful in the society which is then applied at the expense of the powerless. A moral and humane society con­stantly seeks to bring the law into closer harmony with the widest interpretation of justice in that society at any given time. The civil rights move­ment in the U.S. is an excellent example of this process.

The contention here is that the continued use of the death penalty in the U.S. constitutes a flagrant example of the continuing gap between law and justice in our society. While the Su-

preme Court has upheld the legality of capital punishment under the Eighth Amendment, it has ignored the moral and ethical implications of the "cruel and unusual" clause.

If one considers the deliberate infliction of pain and suffering on others to be "cruel," then capital punishment, regardless of its legal inter­pretation, must fit that definition. Both the actual manner of execution and the long period of confinement in death row preceding its appli­cation cause acute pain and mental suffering to the condemned person. The uneasiness which we, in the U.S., feel towards the infliction of pain on the condemned prisoner has led to a continuous search for more refined and "humane" means of carrying out the execution order.

Charlie Brooks, Jr., the first person killed by lethal injection, has now taken his place in history along with other objects of experimen­tation in this quest to kill people painlessly. However, the use of otherwise life-saving medical techniques and drugs to carry out exe­cutions raises serious ethical questions for the society as a whole and the medical profession in particular. Even though Texas District Judge Doug Shaver feels that death by lethal injection "will make it more palatable," it surely can not make it more ethical. On the other hand, if we remain convinced that capital punishment is both a necessary and just means of ensuring social defense, why is it necessary to make it "palatable"? Despite the legal interpretation of the concept "cruel," the moral interpretation of that concept and its relationship to justice in our society remains unsettling.

Dr. Walker is assistant professor of criminal justice studies, Kent (Ohio) State University

USATODAY/NOVEMBER 1983

Furman v. Georgia decision: In Furman v. Georgia the Supreme Court ruled that the death penalty in Georgia was unconstitutional because it was applied inconsistently as far more blacks than whites were executed for similar crimes. The court, however, did not rule that the death penalty violated the 8th Amendment.

Gregg v. Georgia decision: the Court ruled that the death penalty was not unconstitutional as such under the 8th and 14th Amendments.

8th Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

108 AMERICA IN CLOSE-UP

Thoughts on the Supreme Court

An Interview with Tom Clark (excerpts)

This interview was conducted on August 23, 1976, in Justice Clark's chambers in the Supreme Court. The late Justice Clark spent more than 50 years as a lawyer and judge. He served as attorney general of the United States from 1945 to 1949, when President Truman appointed him an associate justice of the Supreme Court. He then served on the Court until 1967, when he resigned because of a potential conflict of interest that arose when his son, Ramsey Clark, was named attorney general.

QUESTION:Woodrow Wilson once called the Supreme Court "the balance wheel" in our system. Justice Robert H. Jackson said that the Court's func­tion was nothing less than to be an arbiter among rival forces in our society. After your many years of ser­vice on the Court, how do you see its role in our political system?

Justice Clark:Well, I think that Chief Justice (War­ren) Burger put it pretty well when he said, "If you want to play a baseball game, what do you have? You have an umpire, otherwise the game is going to end up in a riot before the nine innings are played." I rather think that the Court is somewhat of an umpire. It con­siders what the Congress proposes, or what the ex­ecutive proposes, or what some individual claims, and rules upon these laws, proposals, and claims by com­paring them with the law as laid down by the Constitu­tion...and then calls the strikes and the balls.

The Watergate case was a good example of the Supreme Court's responsibility to decide whether or not the Congress or the president had exercised authori­ty in a constitutional way.

You also should remember that we on the Court serve another role. If the decisions of the other two branches are in keeping with constitutional doctrine, we use our authority to uphold these decisions. And if a citizen doesn't voluntarily follow the rules laid down by the Congress or by the president or by other courts, why then it's our job to enforce those rules so that that individual will be punished or reprimanded. QUESTION:Justice William H. Taft once said that courts are composed of people, and one would be foolish to deny that courts are not affected by the time

in which the justices live. How much do you think the needs of the times affect the decisions of the Court? How is public opinion brought into the process of tak­ing cases and making decisions?

Justice Clark:Well, I served 18 years on the bench and frankly, I myself doubt if any public clamor or any political manipulation on the Court can be effec­tive. I did get quite a few letters from all over the coun­try about various things, but I don't think any of those things influenced my thinking on the legal matters which were involved.

Yet we are influenced by the necessities of the time.

Every year there are new cases, new people who come "knockin' on our door" with constitutional questions which need to be resolved. Take for example the

criminal field. We started out with the case of Griffin v. Illinois* in which Griffin said, "I'm being charged with murder, which is a felony, and I ought to be en­titled to read the transcript of what went on in the courtroom. I'm just a layman and couldn't remember everything. Without a transcript, I wouldn't be able to appeal to a higher court." So when this came to us (the Supreme Court) on appeal, we ruled that defen­dants are entitled to a transcript.

But once they got the transcript they couldn't tell much about it without a lawyer and they commenced again to "knockin' on our door." In an old case before I became a justice, the Court had ruled that only in felony cases should a lawyer be appointed. Exceptions were made to this case over the years as additional cases came before the Court, until we had the Gideon case.** In this one we ruled that everyone accused of a crime was entitled to a lawyer. What happened was, they kept "knockin' on our door," and finally we extended the ruling to misdemeanors as well.

So you had it going full sway. That's because of the necessities that were brought to our attention. Now you say, well, weren't those brought before? Possibly they were, but not with the impact that they were brought to us.

The same was true in segregation. We had one case which had to do with segregation in the field of graduate education. We ruled that this was unconstitu­tional and later there came the case of Brown v. Board of Education,*** which was on the grade school level. Then other questions came up. What about public ac­commodations? What about swimming pools and things like that? And the first thing you know they're "knockin' on the door." I don't know whether you'd say that the individual citizen who felt the pinch knocked on the door, or whether the lawyer looking out saw the pinch and tried to minimize it. I rather think that the pinch was what caused it.

•Editor's Note:In the case of Griffin v. Illinois (1956) the Supreme Court ruled that a defendant who is appealing a court decision should not be denied a copy of the transcript of his trial because of inability to pay for it.

••Editor's Note: InGideon v. Wainwrighl (1963) the Court ruled that all defendants are entitled to a lawyer appointed by the court if they are unable to pay for one themselves. See the "How a Case Reaches the Supreme Court" diagram for more details on the Gi­deon case.

•••Editor's Note:In Brown v. Board of Education (1954) the Court ruled segregation in public schools to be unconstitutional.

LAW, CRIME, AND JUSTICE 109

PART C Exercises

1. Text Analysis

A Brother's Murder

1. This text comes from a special section of the
New York Times Magazine. How does its style
differ from the style you normally find in
magazine reports?

2. What may have been Brent Staple's motives
for writing this article?

3. Show how the author's biography is woven
into the account of his brother's life and death.

4. Describe how the author conveys to the
reader that his brother's tragic end was
almost inevitable.

5. The author compares Blake Staple's world of
violence, crime and aggression with his own
much more secure and peaceful way of
living. Find the words and expressions he
uses to indicate this contrast.

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