Capital punishment is the most premeditated of murders. Albert Camus
Since 1976 when it was reinstated by the Supreme Court, more than 1,400 people have been executed in the US and there are currently over 7,800 on death row. Thirty one states, the federal government, and the military still allow for capital punishment. For decades the death penalty could be used for a variety of offenses including theft and rape but today is limited to murder, treason, espionage, and large-scale drug smuggling, although the last time it was used for such offenses was the execution of Julius and Ethel Rosenberg in 1953 for passing along top secret information on radar, sonar, and nuclear weapons to the Soviets.
For many years I was a proponent of the death penalty as a fitting punishment for murderers but have since come to the realization that it is unjust and should be abolished completely, with no exceptions. While the issue bubbles up into the national consciousness on occasion, unfortunately there has been little sustained discussion concerning its application of late.
Before I lay out my case against capital punishment let me first point out a couple of oft-cited arguments against that don’t factor in my reasoning and conclusions.
– China and Saudi Arabia. What moral authority can the US claim when we apply the death penalty just as the autocrats of those repressive regimes do? While not a baseless point, we should not use foreign examples to make a case here in the United States. It paves the way for a game of moral relativism with no end. Let’s terminate the practice not because awful governments do it nor because “good” countries don’t do it, but because it is the right thing to do.
– The religious argument. Once again I don’t believe it to be without merit nor do I intend to denigrate someone’s faith but religious systems can be interpreted in vastly different ways, from within and without the faith. The Bible itself contains passages for and against execution.
The following are four reasons, in descending order of importance, for the abolishment of capital punishment.
- The execution of just one innocent condemns the entire system.
If a kitchen cleaner advertises that it kills 99.9% of germs you would likely to pick it over a less effective product. Ninety-nine out of one hundred free throws is insanely good. 99% is great most of the time but not for capital punishment. If even one innocent out of 1000 is executed it damns the whole system. It’s kind of hard to take the Declaration’s “life, liberty, & the pursuit of happiness” seriously when your own government condemns an innocent man to death. If you take his life you’ve taken everything. How many mistakes are you willing to tolerate for the sake of justice and law and order?
Consider the disputed cases that follow.
– Texas also executed Carlos DeLuna in 1989 for the 1983 killing of a gas station attendant in Corpus Christi. A subsequent investigation by law professors and students at the Columbia Law School raised serious doubts about his guilt and suggest that another Carlos, Carlos Hernandez, a man who looked similar to DeLuna and lived nearby was the true killer.
– Virginian Joseph O’Dell died by lethal injection in 1997 for the 1985 killing of Helen Schartner. The judge at his trial allowed him to represent himself, a serious red flag, and the conviction hinged primarily on blood evidence. O’Dell spent over a decade to no avail asking various courts for DNA testing of the blood.
– Kirk Bloodsworth has the distinction of being the first death row inmate to be exonerated with DNA evidence post-conviction, for the murder of a nine-year-old girl in Rosedale, Maryland in 1984. That same DNA evidence led investigators to Kimberly Shay Ruffner, who in 2004 pled guilty to the crime. Amazingly, Ruffner had been sentenced to 45 years for burglary, attempted rape, and assault with intent to murder just one month after the Rosedale killing and was housed in a cell one floor below Bloodsworth.
It is true that some, probably most, men on death row are guilty but there are dozens of cases in which there is strong evidence for the innocence of already-executed men, and it only takes one mistake. DNA testing, assuming there are relevant samples, should be the norm for all condemned on death row in America, no matter how old the case, and surely there’s some money to be found in our $1 trillion yearly budget for DNA analysis of cases where the convicted has already been executed, if for no other reason than to set the record straight. Ending an inmate’s life takes everything from him and precludes the possibility of recompense. This is unacceptable and should never happen again.
- The application of capital punishment is varied and inconsistent.
– The inconsistency of the death penalty is not simply limited to states with and without. Of the 31 states with capital punishment, 28 are decided by a jury. In Nebraska a three judge panel decides the sentence and only one need oppose death to sentence the convicted to life imprisonment. Only the trial judge in Montana decides the sentence. In Alabama the jury does not even need to be unanimous; just ten out of twelve jurors must agree to sentence the convicted to death. Additionally, there are numerous differences with regard to a hung jury during the sentencing phase.
– Capital punishment sentencing varies significantly based on race and class. On the issue of race, specifically African-Americans, I do not have the knowledge to comment on this with any authority. Enough research has been done on this issue to fill multiple libraries and my sense is that yes, the death penalty is disproportionately applied to blacks. There are two influential studies that you can read about here & here.
With regard to socioeconomic status, less research has been done but I believe that the poorer the defendant the likelier the sentence of death, if for no other reason than the fact that the more affluent can afford better counsel. This doesn’t mean that public defenders are bad lawyers, but that they usually have multiple clients at any one moment and lack the resources and time needed for a complicated capital case.
– Overzealous prosecutors overreach their authority to seek the death penalty. A handful of DA’s account for an incredibly disproportionate amount of capital cases. It’s important to remember that a district attorney is both lawyer and politician, and come election time there is no better way to present your bona fides than to claim that you’re “tough on crime”. And the death penalty is the ultimate expression of the phrase; you literally can’t be more “tough on crime” than capital punishment.
One of the worst in America was Joe Freeman Britt, unfortunately from my home state of North Carolina, who reveled in his notoriety and was listed by the Guinness Book of World Records as the “deadliest prosecutor in America”. He had an unenviable record of misconduct and questionable history of prosecutorial decisions.
- Deterrence is a myth.
This, like the studies on race, is a sphere that is very complicated and beyond my full understanding. There is evidence to support both sides of the argument (a, b, & c) but my personal opinion is that no, capital punishment is not a deterrent, the primary reason being you can’t prove a negative. I’m no scholar but it seems pretty clear that there is no amount of data or evidence to verify that one, or one-thousand, potential murderers did not carry out their plan for fear of execution.
- Capital punishment is expensive.
Executing a man costs very little; the cocktail of drugs needed for lethal injection cost around $100. The entire process however, from pre-trial, through trial, to appeals and reviews, and eventually to housing and execution is incredibly expensive.
A 1993 study found that it cost North Carolina $2.16 million per execution, while another study the previous year concluded Texas spent on average $2.3 million, three times the cost of a 40-year stay at a maximum security facility in that state. Between 1978 and 2011, California spent a total of $4 billion on capital punishment. The average time between conviction and execution, as of 2010, was 15 years, and several condemned men have spent decades awaiting punishment, the current record being 39 years, held by Gary Alvord of Florida. He began his stay on death row in 1974 and died in 2013, not even by lethal injection, but from a brain tumor.
It is time for the end of capital punishment in this country. Incredible cost, questions over the effectiveness of deterrence, the inconsistencies of its application and most importantly, the sine qua non argument as far as I am concerned- one innocent executed damns the entire practice. The time is right, public opinion is shifting and support for the death penalty is at a low not seen in decades. It’s the right thing to do as a nation.
Further resources & reading:
Columbia Human Rights Law Review, Los Tacayos Carlos (The Wrong Carlos) – trial & conviction of Carlos DeLuna
Pew Research, 5 Facts About the Death Penalty
Death Penalty Information Center, Facts about the Death Penalty
US Department of Justice, Capital Punishment, 2010 – Statistical Tables
US Department of Justice, Homicide Trends in the United States, 1980-2008
Reason Magazine, Oklahoma Death Penalty Commission Recommends Extending Moratorium