reason for bringing forth these frivolousnexamples is to shed some light on thenmeaning of “arbitrary and capricious.”nIt helps me, too, to back into the pointnthat only like things should be comparednwith one another. In order to substantiatenthe claim that decisions to executenare arbitrary and capricious we need tonhave those decisions compared with likenones. Before proceeding to that point,nhowever, a related one needs to be gotnout of the way.nDespite Mr. Gettinger’s apparent beliefnthat he has done so, his examplesndo not make a prima facie case that thendecisions were arbitrary and capricious.nHe presents extensive reviews of eightnmen who were sentenced to death. Inneach case, the man was charged withnand found guilty of either premeditatednmurder or murder committed while innthe act of committing a felony. Each ofnthem had a jury trial, had at least onenattorney, was protected against selfincrimination,nwas permitted to submitnevidence on his own behalf, and wasnaccorded a presumption of innocence.nSome of the crimes were particularlynhorrible: a man beat his wife to deathnin bed and killed one of his small childrennwith a poker (after making sexualnadvances on one of his daughters); anotherninvolved the killing of a man innbed and attacking his wife who was besidenhim; another was a father who gavenpoisoned candy to one of his childrennon Halloween, and so on. A good casencan be made that the murders were arbitrarynand capricious. On the face ofnit, no such case is made that the decisionsnto execute were. At the time of thenwriting of the book, none of the appealsnmade on behalf of the murderers hadnmoved any court to decide so.nNow to the comparison. Generically,nwhat is involved in capital punishmentn(or execution) is the killing of anperson by the state. The relevant comparisonnis with other sorts of deathsnthat the state, through its agents, causes.nMr. Gettinger apparently believes thatnthe relevant comparison is with thosenin similar circumstances whom the statendoes not execute. Unfortunately, suchncomparisons can only be made by second-guessingnthe relevant authorities,nnamely, judges and juries. That is angame which any of us could play but fornwhich few of us are called and none arenchosen. There is no way that we cannliterally put ourselves in the place ofnjudges and juries. With the best imaginationnin the world and the deepestnunderstanding, one thing would stillnbe missing. We would not be responsiblenfor making the decision. In any case,nthe comparison should be with thosenthe state does put to death, not withnthose with whom it does not.nFortunately, there is bountiful evidencenfor such killings, and much of itnis common knowledge. Policemen killnpeople in the course of the dischargenof their duties. They do so in self-defense,nto prevent a crime, to apprehendnsuspects, and sometimes accidentallynand unintentionally. National Guardsmennkill people in the course of attemptingnto restore order where the situationnhas gotten out of hand. There has beenna goodly number of highly publicizedncases of this sort in the last decade orntwo. Above all, armed forces kill people,nsometimes in great numbers, when theynmake war. All of these, when performednin the course of duty, are actsnof state. They are killings done by thenstate, as it were, generally understoodnto be such by those who do them and bynthose who authorize such acts.nIt requires no great insight to perceiventhat by comparison with the executionnof murderers, these killings arenarbitrary and capricious. No trial hasnbeen held to determine their guilt orninnocence. No jury has been selectednwith care to determine the facts. Nonjudge has been appointed to make rulingsnon the law. The persons killed havennot been allowed to call witnesses onntheir behalf. In the case of war, the killingsnare apparently random, and thenpersons killed may be entirely innocentnof any offense which could have provokednthe conflict. Clearly, if caprice isnthe arbiter, these state killings are in­nnnfinitely more capricious than executions.nIf these worms were not already outnof the can and wriggling around I wouldnnot have opened it. Mr. Gettinger didnnot choose to do so, of course. He discussesnthe pros and cons of capital punishmentnisolated from the broadernquestion of state killings. While he doesnpresent arguments on both sides of thencase, his is nonetheless a brief againstncapital punishment. It is even morenpointed than that. It is written withinnthe framework of the resumption of executionsnunder laws that were supposednto conform with Supreme Court strictures.nThe gravamen of his work isnthat the goals of the Supreme Courtncannot be met and that the Court shouldnstop all executions and align the UnitednStates with all those “progressive” nationsnin the world that prohibit capitalnpunishment. In any case, he views thenresumption as a barbaric relic from thenpast.nIn case Mr. Gettinger does not knownit, the worms are already out of the can,nand they need to be considered beforenwe jump on our horses and go riding offninto the sunset toward our glorious future.nCapital punishment is not the onlynissue before us. Whatever Mr. Gettingernmay believe, many of those who opposencapital punishment are also opposed tonarming policemen with guns, supplyingnNational Guardsmen with live ammunition,nand sending soldiers off to fightnin wars. A broader issue is at stake,nthough it is not raised so boldly andnstridently as that of capital punishment.nIt is usually raised piecemeal, but itnneeds to be faced squarely and whole.nThe issue is the propriety of state killing.nV-.apital punishment is the keystonenof the arch of state power. It is irresponsiblento discuss it in isolation fromnthat. It is self-evident that if the statenis not prepared to kill it cannot performnits proper functions. It cannot defendnitself from its enemies. It cannot defendnits inhabitants from their enemies. Itncannot defend the life, liberty, and propertynof those who dwell within itsnJanuary/February 1980n