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The Crisis in Capital Punishment, 31 MD. L. REV. 289 (1971)


We are at crisis. For about four years, because of judicial stays
necessary to the orderly administration of justice, no human being
has been killed by warrant of law in the United States. We have had
much time- for. thought on the subject. If we resume the infliction of
death by law, we shall have to answer to ourselves, to the future,
to the rest of the world, and to whatever or whomever else it may
be that judges us, how it came about that we did this after so much
time for reflection. Meanwhile, some 600 persons have been condemned
to die, and are in the death cells of our capital punishment
states. Of course, not all these will be killed, in any event, for it is
the policy in some states to delay clemency hearings until all judicial
remedies are exhausted. and some of those now under condemnation
will be commuted, or be transferred to asylums, or die. But if the
protection of the judicial stays be removed, and if no other remedy
supervene, it is reasonably certain that within a year a good many
times as many people will be killed in the name of law as in any year
in recent American history. Although I am aware that much, indeed
most, of what I shall have to say cannot be new, and although I know
my subject is a most unpleasant one, I dare not put myself in the
position of having to explain to my children how it happened that
at such a crisis I could find myself honored by being tendered a
platform such as this, at a great university such as this, and then
not use this opportunity to have my say on this subject.!

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