The Death Penalty Cases: A Preliminary Comment

The next to last step down the long road to total abolition of capital punishment consists of a period during which the death penalty is retained as an official symbol but repealed in practice. When the proposed Revised Washington Criminal Code was published in 1970, this schizophrenic phase was already well under way, dating from at least 1967, the year of the last execution in this country. The political message suggested by this state of affairs is that while the death penalty ought to be retained in the crime-prevention arsenal, it should be used only rarely. In attempting to legitimize disuse of the penalty by making it much more narrowly available than the current law has allowed, the Proposed Code may be viewed as adopting this political view.

The Proposed Code thus represents no departure from actual practice; rather, it represents a rationalization and codification of that practice.