EVIDENCE THAT THE DEATH PENALTY IS NOT A SIGNIFICANTLY USEFUL INSTRUMENT OF LAW ENFORCEMENT OR PENOLOGY IS REVIEWED, INCLUDING STATISTICS DEMONSTRATING THE INFREQUENT USE OF THE PENALTY AND STUDIES INDICATING LITTLE, IF ANY, DIFFERENCE BETWEEN THE POSSIBLE DETERRENT EFFECTS OF LIFE IMPRISONMENT AND THE DEATH PENALTY. IT IS NOTED THAT NO WRITTEN STANDARD, SAFEGUARD, OR LAW CAN ELIMINATE DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTEM. UNFORTUNATELY, THAT DISCRIMINATION HAS WORKED AGAINST BLACKS. OF ALL PERSONS EXECUTED FROM 1930 TO 1975, 53.5 PERCENT WERE BLACK. IT IS POINTED OUT THAT, IF DETERRENCE IS NOT A SUFFICIENT JUSTIFICATION OF CAPITAL PUNISHMENT LAWS AND IF THEIR SELECTIVE APPLICATION RAISES SUCH DISTURBING PROBLEMS, THE ONLY REMAINING ARGUMENTS FOR THEIR RETENTION CENTER ON CONCEPTS OF RETRIBUTION AND TRADITION. THE DIFFERENCE BETWEEN UNDERSTANDING THE MOTIVATION FOR CAPITAL PUNISHMENT AND ACCEPTING EXECUTION AS AN INSTRUMENT OF SOCIETY IS POINTED OUT, AS ARE THE FALLACIES OF THE ARGUMENT THAT SOCIETY SHOULD NOT OVERRIDE HISTORY TO ABOLISH A LONGSTANDING SANCTION. IT IS FURTHER NOTED THAT THE RESPONSIBILITY OF LEGISLATORS AND JUDGES TO DECIDE THE CONSTITUTIONALITY OF A LAW OR PRACTICE CANNOT BE DELEGATED TO PUBLIC OPINION POLLS, AND THAT OBJECTIONS TO CAPITAL PUNISHMENT CANNOT BE ELIMINATED BY STANDARDS, PROCEDURES, OR WORD FORMULAS. THE ISSUE IS FUNDAMENTAL: IN EXCHANGE FOR THE RIGHT TO KILL A FEW PEOPLE EACH YEAR, CAPITAL PUNISHMENT LAWS EXPOSE SOCIETY TO BRUTALIZATION AND LOWER THE ESSENTIAL VALUE OF UNQUALIFIED RESPECT FOR LIFE. (AUTHOR ABSTRACT MODIFIED--LKM)