From Moral Issues that Divide Us and Applied Ethics: A Sourcebook
2. Against the Death Penalty -- Stephen B. Bright
In 1896, America’s first serial killer, Herman Webster Mudgett, was executed. During the Chicago World’s Fair in the early 1890s, Mudgett opened a small hotel, later nicknamed the “Murder Castle,” to which he lured unsuspecting female guests. Part of his motivation was sexual, and part involved a financial scheme in which his victims would take out life insurance policies and name him as beneficiary. Once inside the Castle, he tortured and killed them, and sometimes dissected their bodies, selling their skeletons to medical schools. When eventually arrested on charges of insurance fraud, police linked him to the murder of his business associate, and in the course of their investigation they discovered the Murder Castle. There they found bones of many victims mixed together, a dissection table covered with blood, and burnt body parts. Mudgett confessed to 27 murders, writing a detailed account of those activities, but the actual number may have reached over 100. He was tried, then hanged.
When reading accounts of serial killers like Mudgett, we often have a sense of satisfaction that he was caught and executed. Some people are so irredeemable and their actions so horrendous that we feel that justice demands that they die. The death penalty, we think, is a critical part of the criminal justice system, specifically reserved for the worst possible offenders. The death penalty has been common practice around the world as far back as history records, and it’s easy to imagine primitive social environments in which dwellers would have no choice but to kill criminals. Nomadic tribes, for example, might lack permanent facilities to lock up murderers and thieves, and setting offenders free would just give them a chance to do more damage. Small jungle villages might lack the financial resources to build detention centers and post guards to keep them from escaping. In these environments, even minor offenses might need to be punished with great severity in order for these societies to simply survive.
But the story is different today: maximum security prisons are readily available for detaining the most violent criminals. In recent decades the trend around the world has been to abolish the death penalty. Of the 195 countries today, 90 do not allow it, and only about 60 actively practice it. European countries have all but eliminated the death penalty and, among all industrialized countries, the U.S. stands virtually alone. In 2007, about 3,000 people were executed world wide, and the five leading countries were these:
Saudi Arabia: 143
United States: 42
Critics of the death penalty argue that these are not particularly good countries for the U.S. to be grouped with when it comes to matters of criminal justice. Is it time to abandon the death penalty as a relic from a less civilized period of human history? There is what is often called “evolving standards of decency” in civilized societies, and the critical issue is whether society has reach the point at which the death penalty is no longer an appropriate option. In this chapter we will look at the arguments for and against retaining the death penalty.
As the death penalty is a specific type of punishment, much of the controversy surrounding it can be illuminated by considering the nature of punishment in general. Thus we will begin by looking more broadly at the notion of punishment.
Punishment in General
A basic definition of punishment is that it involves the deliberate infliction of suffering on a supposed or actual offender for an offense such as a moral or legal transgression. While punishments can be imposed by anyone in a position of authority—parents, teachers, bosses, friends—it is criminal punishment that is of issue here, namely, the punishment imposed by governments for legal infractions. When imposing punishments, governments have a range of options that differ in severity. At the low end, punishments of community service require offenders to participate in some activity that benefits their local community, such as picking up litter, working at animal shelters, or assisting nonprofit organizations. Financial penalties, such as fines, are common particularly with non-violent crimes. Acts of public humiliation, while more common in previous eras, are still sentencing options today, such as when convicted drunk drivers are required to put DWI stickers on their cars. The use of corporal punishment, such as caning, is still an option in some countries today. Incarceration in jail or prison is among the harshest form of punishment, particularly because of the serious restrictions that it places on the offender’s liberty.
Many harsh forms of punishment that were commonplace in the past , particularly those involving torture, have since been outlawed as inhumane in most countries. One major liberalizing influence was a book called On Crimes and Punishments (1764) by Italian political philosopher Cesare Beccaria (1738-1794), which drew attention to injustices within Europe’s criminal court systems and the appalling condition of its prisons. The entire concept of criminal punishment, he believed, needed major rethinking, and society needed to shift away from severe methods to ones that would have a more lasting psychological impact on both the prisoner and the public. He writes,
The intent of punishments is not to torment a sentient being, nor to undo a crime already committed. . . . Instead of being influenced by passion, such institutions should be the cool moderator of the passions of individuals. Can the groans of a tortured wretch bring back the time past, or reverse the crime he has committed? The end of punishment, therefore, is no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the same offense. Such punishments, therefore, and such a mode of inflicting them ought to be chosen in a way that will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal. [On Crimes and Punishments, 12]
Beccaria was also adamantly opposed to the death penalty and felt that long term imprisonment was more effective than execution. The only exception, he believed, was with violent criminals who even behind bars continue to seriously disrupt society through their influence.
Inspired by Beccaria’s arguments, political rulers throughout Europe instituted more humane punishment policies, and this trend has continued to the present day. Standards of humane treatment are ever-evolving, and punishments that were thought normal some decades ago, such as hard labor, are now considered cruel. In fact in recent years the very notion of punishment itself has come into question by social scientists who hold that the task of the criminal justice system is to cure criminals of their tendencies, rather than punish them for their behavior. On this view, people commit crimes because they are conditioned to and are in essence behaving according to their psychological programming. Criminals thus should be reprogrammed, not punished.
Aims of Punishment
All punishment has some aim which serves to justify the suffering that is inflicted on the offender. The main aims are retribution, incapacitation, rehabilitation, and deterrence.
With retribution, punishment is a matter of what is deserved in return for a wrongful act. The retributive theory of punishment is most often associated with the notion of “eye for and eye” justice, where the imposed punishment is equal to the harm done. The Latin expression for this is lex talionis, which literally means “law of retaliation”. Sometimes the “eye for an eye” concept of punishment is taken literally, such as the following from the ancient Babylonian Law of Hammurabi (c. 1750 BCE): “If a man puts out the eye of another man, then his eye shall be put out. If he breaks another man's bone, then his bone shall be broken.” By today’s standards, though, strict adherence to “eye for and eye” justice is barbaric: we don’t punish rapists by raping them, or punish arsonists by burning down their houses. Rather, we seek redress through more humane types of suffering that we can impose on offenders.
With incapacitation, punishment keeps offenders from repeating similar crimes, typically by physically restraining them. When we catch violent criminals one of our first thought is to get them off the street before they harm others. With rehabilitation, punishment aims to change the offender’s predisposition towards criminal behavior, and thus keeps him from becoming a threat to others when released into the community. Sometimes rehabilitation is facilitated through psychological counseling or other types of behavior-modification therapy. However, the assumption here is that any type of punishment, if it is memorable enough, will in and of itself discourage criminals repeating crimes. We expect convicts to have learned their lesson and mended their anti-social ways.
With deterrence, punishment is a means of discouraging others from committing similar offenses. If I see that an armed robber was punished with prison time, I’ll be less likely to commit armed robbery myself. The aim here is to use the criminal as an example for others to learn from.
It is difficult to talk about the aims of punishment without mentioning the motive of revenge, which involves doing something from resentment as a retaliatory measure. In our ordinary lives, revenge often plays a role in our motivations to have someone punished. Suppose, for example, that a mugger stabs you and leaves you with a life-threatening wound, or that you are brutally raped, or that a drunk driver crashes into your car killing one of your family members. In each of these cases you would likely want the perpetrator to not only be caught, but to suffer for his crime and, in essence, get what he deserves. By harshly punishing the perpetrator, you have the opportunity to vent your rage and some sense of satisfaction and closure from your ordeal. What distinguishes revenge from retributive aims of punishment is impartiality. Revenge stems from an individual’s personal desire for retaliation, whereas retribution considers more abstractly what justice calls for in a specific situation. Similarly, revenge is intimately connected with a negative emotional state, such as anger or resentment, which do not need to play a part in retributive reasoning.
Let’s grant that revenge is a normal part of our drive to punish offenders, the critical question is whether revenge is a valid aim of punishment. On the one hand, part of our justice system aims to give satisfaction to the victims of crime, and it is routine for victims and their family members to testify at trials to help sway judges and jurors regarding the severity of the punishment that is handed down. There is a sense in which victims need to be avenged for the wrongs done to them, and that should be factored into the courts’ judgment. On the other hand, we often associate revenge with rather uncivilized societies that have tribal wars and blood feuds that last generations. It is also associated with vigilante justice, lynching, and mob rule. As normal as feelings of revenge are when we are victimized, in a civilized society and justice system, it is not typically considered a legitimate aim of punishment. The more cool-headed we can be in judging guilt and handing out punishment, the better. One of the jobs of the criminal justice system is to protect society from our extreme emotional reactions to criminals, and instead make more impartial rational judgments. Thus, the more that we can leave feelings of revenge out decisions about punishment, the better.
All of the above aims of punishment—except reform—have been used as justifications for the death penalty, particularly with murders. It is eye for eye retribution: if you take someone’s like, justice demands that society takes your life. It is incapacitation in the most extreme possible way since executed murderers can never repeat their crimes. Executing murderers is also a deterrent to other would-be murderers. Finally, the death penalty is an important way for family members of murder victims to vent their rage. Whether any of these are good justifications for the death penalty, though, remains to be seen and is at the center of the death penalty controversy.
What People Think
Most people in the U.S. today favor the death penalty and appear to be reasonably satisfied with the number of executions that take place, as reflected in the following surveys (www.pollingreport.com):
"Do you believe in capital punishment -- that is, the death penalty -- or are you opposed to it?" (2/5-11/08)
Believe In It: 63
"Do you feel that executing people who commit murder deters others from committing murder, or do you think such executions don't have much effect?" (2/5-11/08)
Deters Others: 42
Not Much Effect: 52
"In general, would you like to see an increase or decrease in the number of convicted criminals who are executed, or no change?" (2/5-11/08)
No Change: 31
"Do you think that innocent people are sometimes convicted of murder, or that this never happens?" (2/5-11/08)
The philosophical component of the death penalty debate concerns whether executing criminals is ever a morally defensible form of punishment. Of the many moral justifications offered, three of the most important ones draw on the notions of rights forfeiture, retribution, and deterrence. We’ll look at each of these.
A classic justification of the death penalty is that when people commit serious crimes, they forfeit their rights to life, and thus may be executed. The concept of rights forfeiture is frequently appealed to as a justification for other forms of punishment, such as imprisonment. If you commit a violent crime, society is justified in stripping you of your liberty rights by placing you in prison where you no longer have the freedom of movement and expression. The idea of rights forfeiture was first articulated by British philosopher John Locke (1632-1704), who argued that everyone from birth has fundamental God given rights to life, health, liberty and property. We retain all of these rights throughout our lives, Locke says, unless we violate the rights of others, in which case we forfeit all of our rights, including the right to life. This entitles society to kill us, just as it would a dangerous animal. Locke discusses this here:
For man, not having such an arbitrary power over his own life, cannot give another man such a power over it, but it is the effect only of forfeiture which the aggressor makes of his own life when he puts himself into the state of war with another. For having quitted reason, which God hath given to be the rule betwixt man and man, and the peaceable ways which that teaches, and made use of force to compass his unjust ends upon another where he has no right, he renders himself liable to be destroyed by his adversary whenever he can, as any other noxious and brutish creature that is destructive to his being. [Second Treatise on Government, 172]
Locke had a particularly harsh view of rights forfeiture and argued that even with minor crimes, such as theft, the criminal forfeits his right to life. Due in part to the influence of Locke's theory of rights forfeiture, English law had some 200 capital offenses by 1800. For example, in 1777 London clergyman William Dodd was executed for check fraud, despite the protests of his influential friends in government. However, in time, the death penalty became reserved for only the most serious crimes, and today in the U.S. it applies to only murderers.
A serious obstacle with Locke’s position is that the notion of natural rights is rather fuzzy. First, at the extreme, some critics have argued that the very concept of natural rights is a fabrication, a mere rhetorical device for people to demand what they think they deserve. Natural rights have no real substance or meaning, and the notion of rights forfeiture is all the more meaningless. Thus, on this view, it is completely groundless to use the concept of rights forfeiture in support of the death penalty. Second, even if we grant that the concept of natural rights has at least some substance to it, the idea of forfeiture is very ill-defined. Beccaria argued that no one would ever agree to give up his or her right to life as a requirement for entering society: “Each person gives only the smallest portion of his liberty over to the good of the public. Is it possible that this small portion [of liberty] contains the greatest good of all, namely, that person's life?” (On Crimes and Punishment, 28). I may agree to the idea of forfeiting some of my liberty rights if I violate the law, if that’s what is needed to become a member of society. I may be willing to risk jail time for the benefits of living within a peaceful and well governed society. However, it is not reasonable for me to risk being executed just to receive society’s benefits. The whole point of entering society is to get some benefit, and I get no such benefit if I’m dead. Thus, rights forfeiture is at best limited to the removal of our liberties, such as the rights of free movement and expression, but does not extend to the destruction of our lives. Third, some defenders of natural rights argue that the right to life is completely non-negotiable, regardless of what crimes we may have committed. The idea of a right to life is not particularly meaningful if it can have exceptions here and there. It is, instead, exceptionless.
The bottom line: there are many assumptions behind the concepts of natural rights and rights forfeiture, and there is no uniformly acceptable way to use these notions to justify the death penalty.
Another of the common justifications of the death penalty is that it is a direct application of the retributive conception of punishment: an eye for an eye, a life for a life. As compelling as this rationale might initially seem, it nevertheless has problems. First, when applied literally it can lead to absurd consequences. Consider the following statement from the Law of Hammurabi:
If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death.
While the first sentence above makes at least some sense, the second sentence doesn’t: if a collapsed house kills the homeowner’s son, it would be ridiculous to respond by killing the son of the house builder. Mechanically applying the “eye for an eye” formula in capital punishment cases won’t work: we need to make an independent judgment about whether our retributive assessment is a just one. Second, a strict application of the “eye for an eye” formula may even be inadequate. If a mass murderer kills ten people, then taking his single life is technically not punishment in kind. Think of how many times we’d need to have executed Hitler to balance out the murders that he’s responsible for. Some people are so bad that there is no way of retributively balancing the scales of justice. Third, as noted above, civilized societies do not strictly apply “an eye for an eye” punishment in non-murder situations—we don’t punish rapists by raping them. It seems arbitrary to insist on strictly applying “an eye for an eye” punishment when it comes to murder.
Defenders of the retributive view of capital punishment typically accept the retribution rationale as a matter of tradition rather than because of any compelling argument: the idea has been around with us for thousands of years and has become a normal part of our thinking when it comes to fair punishment. However, German philosopher Immanuel Kant (1724-1804) offered a specific argument for retributive capital punishment. For Kant, the death penalty is grounded in the idea that every person is a valuable and worthy of respect because of their ability to make rational and free choices. The murder, too, is worthy of respect; we, thus, show the murderer respect by treating him the same way he declares that people are to be treated. Accordingly, we execute the murderer. At first, Kant's theory seems backwards. Ordinarily we might think that murderers are worthless beasts, deserving of no dignity, and should therefore be executed. Kant, though, would not agree. If I, as a rational person, choose to behave towards you in a particular manner, I am declaring more generally that in my assessment this is how everyone should be treated, including myself. It is as though I am making a request whereby through my actions towards others I tell others how I should be treated. If I behave badly towards others, then that behavior should come right back on me in the form of a comparable punishment. I am deciding for myself how I am to be treated, and society is respecting my decision in how it reacts to my bad behavior. This, then, is what happens when people commit murder. Because every person is a valuable human being who is worthy of respect, including the murderer himself, the dignity of a murderer demands that he be executed. He writes,
the undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. Hence it may be said: If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself. [The Philosophy of Law, 2.49.e.1]
Thus, according to Kant, whoever commits murder must die. However, his execution must be human and as painless as possible: “His death must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable” (ibid). Kant's account of capital punishment is retributive considering that society is merely giving the criminal what he deserves.
While Kant offers an interesting spin on the retributive argument for the death penalty, it is nevertheless susceptible to all of the criticisms above: for example, we don’t punish a rapist by raping him, even if that’s how the murderer himself deems that people should be treated. There is, though, an additional problem that is unique to Kant’s reasoning: it tells us what to do with only ideally rational killers, and most killers are not rational. This is particularly so in regard to Kant’s specific conception of what it means to be rational; that is, we must make willful decisions uninfluenced by passion and personal desire. Criminologists and psychologists tell us that many killers are anything but rational in this sense, and instead kill from emotion, or compulsion, or social conditioning.
Yet another of the more popular defenses of capital punishment is that it deters others from committing similar crimes, more so than other penalties might deter, such as long term imprisonment. It’s not really a question of whether the death penalty has any deterrent value at all; it undoubtedly does. Rather, it’s a question of whether executing criminals does a better job at deterring others than sending them away for life. Common sense suggests that the death penalty should be more effective. A parking fine of $100 will do a better job of deterring me from illegal parking than a mere fine of $10. Imagine how much more I’d be deterred if the penalty for illegal parking was the death penalty: I might give up driving altogether. As compelling as this intuition might seem, there are other psychological factors at play. Beccaria argued that in time we will naturally grow accustomed to increases in severity of punishment, and, thus, the initial increase in severity will lose its effect:
In proportion as punishments become more cruel, the minds of people grow hardened and insensible; this is just as a fluid rises to the same height with that which surrounds it. And because of the continual force of the passions, in a period of a hundred years, the wheel terrifies no more than the prison did before. [On Crimes and Punishments, 27]
Thus, over time we would get used to the idea of the death penalty, and it would deter us no more than we previously would have been deterred by life imprisonment. The burden of proof, then, seems to be on the defender of capital punishment to show that the same deterrent effects could not be accomplished with a less severe punishment, specifically with a sentence of life imprisonment.
How, though, might a defender of the death penalty demonstrate that it really does have greater deterrence value? Ideally, a truly scientific study of the question would involve a comparison between two otherwise identical societies in which capital punishment was not used in the control group but was used in the test group. The problem, though, is that it is a practical impossibility to isolate two otherwise identical societies upon which to conduct the study. There would be an almost endless variety of differing factors in the respective groups, such as differing rates of unemployment, drug use, education, gun ownership, church attendance, single parenthood, gang membership. In the absence of being able to conduct a scientifically perfect experiment to test the deterrence value of capital punishment, researchers have tried other approaches. A common method is to compare the murder rates of states that have the death penalty to those that don’t. Another is to compare whether murder rates have increased or decreased when those same states have increased or decreased the number of executions. Again, though, it is nearly impossible to remove the impact of other influences, such as cultural and economic ones, which differ from state to state and even differ over time within the same state. Not surprisingly, then, most studies on the deterrence value of capital punishment are either inconclusive or methodologically flawed.
Even if the death penalty has some extra deterrent value, a question remains about how frequently it needs to be imposed in order to successfully deter others. Perhaps, in the best possible situation, executing five of the most dangerous convicts will result in deterring five would-be murderers in the future, and thus saving five victims’ lives. As the number of executions increases, however, the number of victims’ lives saved will not increase proportionally. It may be that executing 100 criminals will still only deter five would-be murderers. According to political philosopher Hugo Adam Bedau, if society chooses to execute criminals because of its deterrent value, then we need to know the acceptable ratio of victims’ lives saved per execution. Otherwise we may be executing hundreds of criminals with no increase in saved lives whatsoever. Bedau asks, “Would it be worth it to execute so many more murderers at the cost of such a slight decrease in social defense? How many guilty lives is one innocent life worth?” (Matters of Life and Death, ed. Tom Regan). The problem, according to Bedau, though, is that we don’t know what that ratio is, and it may be nearly impossible to calculate it. Thus, all that we’re left with are uninformed hunches, which are not sound foundations for social policies as important as this one.
PUBLIC POLICY ISSUES
The legal issues surrounding the death penalty focus largely on whether it can be implemented in a fair way, considering all the flaws in the criminal justice system. That is, even if we concede that the death penalty is generally speaking morally justifiable (for example, on the grounds of retribution or deterrence), the question remains whether it is good public policy. Public policy discussions about capital punishment in the U.S. often focus on three specific issues: proportionality, executing the innocent, and racial bias. Much of the debate centers on Supreme Court decisions. While individual states decide whether or not to implement the death penalty, Supreme Court cases have done much to set the parameters of when capital punishment is permitted throughout the country.
An initial legal issue regarding the death penalty involves the notion of proportionality, that is, whether death penalty sentences are handed down uniformly in similar situations. The issue surfaced in the Supreme Court decision Furman v. Georgia (1972), in which the Court ruled that the death penalty was unconstitutional because it was imposed capriciously and arbitrarily. Justice Potter Stewart famously expressed the problem here:
In the first place, it is clear that these sentences are "cruel" in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. . . . In the second place, it is equally clear that these sentences are "unusual" in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare. But I do not rest my conclusion upon these two propositions alone. These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. [Furman v. Georgia, concurring decision]
The decision came at a time when there was little public support for the death penalty, and there hadn’t been any executions for five years anyway.
But as crime in the U.S. increased in the 1970s, public attitudes changed. Reflecting this, in the 1976 case Gregg v. Georgia the Supreme Court reversed its 1972 decision, in essence declaring that States had fixed the problem and the death penalty was no longer arbitrarily imposed. New rules pertaining to executions provided “objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death.” Among these new rules were proportionality reviews that various states required in capital cases, which would evaluate whether a particular crime warrants the death penalty. The very following year the Supreme Court determined that capital punishment in cases of rape are unconstitutional because the sentence was disproportionate to the crime (Coker v. Georgia, 1977). In more recent cases, the Court has ruled against executing mentally retarded people and juveniles under age 18 (Atkins v. Virginia, 2003; Roper v. Simmons, 2005).
The function of proportionality review systems is to determine whether a death sentence is consistent with the sentences imposed in factually similar cases. For example, if most people who kill someone in a bar room fight do not get executed, then it would be disproportional if I was sentenced to death for a similar crime. The challenge, though, is to devise a comprehensive list of the relevant factors in various crimes which can then be used to compare the similarity of one crime to another. Obvious factors would include the criminal’s motivation and level of violence. Less obvious factors would be whether the defendant had a troubled childhood, poor education, drug addiction, or mental impairment. Some proportionality review systems have attempted to make the comparison process as mechanical as possible. A judge or review panel would simply plug the relevant factors of a case into a statistical formula, and out would come an answer, such as whether the crime is typically punishable through death, or through long-term imprisonment.
Critics of proportionality review systems charge that it is nearly impossible to make a comprehensive list of all of the relevant factors and to assign to them the appropriate weight. Further, they charge, in no other area of criminal punishment can a defendant’s sentence be modified based on the sentencing of criminals who commit similar crimes. For example, a rapist sentenced to 20 years in jail cannot demand to have a reduced sentence since similar rapists only received 10 year sentences.
Executing the Innocent
Throughout history there have been concerns about innocent people being wrongfully executed. In 2000, such worries prompted Governor George Ryan to call a moratorium on all executions in his state of Illinois. His decision was the result of disturbing evidence that many inmates on death row were in fact innocent of the crimes they were convicted of, or at least accused of based on faulty evidence. According to Ryan, the criminal justice system is so flawed that innocent people are regularly given the death penalty. While many steps can be taken to improve the system, given human frailty, he maintained, we can never guarantee that only the guilty will be executed. His decision sparked a national debate on the issue.
One response to the problem of executing the innocent is to deny that this ever really happens. British philosopher John Stuart Mill (1806–1873) made this argument over a century ago in a speech before the British Parliament
Our rules of evidence are even too favorable to the prisoner; and juries and Judges carry out the maxim, “It is better that ten guilty should escape than that one innocent person should suffer,” not only to the letter, but beyond the letter. Judges are most anxious to point out, and juries to allow for, the barest possibility of the prisoner’s innocence. No human judgment is infallible; such sad cases as my hon. Friend cited will sometimes occur; but in so grave a case as that of murder, the accused, in our system, has always the benefit of the merest shadow of a doubt. [Parliamentary speech, April 21, 1868]
Mill’s point is that, yes, wrongful executions do unfortunately take place in other European countries, and in those places that is a decisive argument against the death penalty. But thankfully the English judicial system is so vigilant to avoid such errors that it doesn’t happen there. In more recent times George W. Bush, when governor of Texas, expressed a similar attitude regarding the large numbers of executions in his state:
We had a series of people executed in my state. These are people who were found guilty by a jury of their peers. These are people who have had full access to the courts of law. There's no doubt in my mind that each person who's been executed in our state was guilty of the crime committed. [CNN, February 17, 2000]
Even now some people argue that there is no absolute proof that any innocent person has been executed in recent decades. What are their names and where is the proof? No one is stepping forward with that information.
Death penalty opponents recognize the difficulty in definitively naming innocent people who have been executed, and much of the reason for this, they argue, is that in most capital punishment cases there is no DNA evidence available from the crime scene. Nevertheless, the fact remains that many people on death row have been proven innocent through DNA testing. An organization called the Innocence Project is devoted to setting free wrongfully convicted people with the help of DNA testing, most of whom, they explain, “are poor, forgotten, and have used up all legal avenues for relief.” It’s unreasonable to think that we’ve so far been lucky enough to rescue every innocent person from death row. Indeed, as the survey cited at the outset indicates, most people in the U.S. believe that innocent people have been executed.
Other death penalty defenders concede that innocent people may have been executed. However, they argue, the numbers are probably very small – only a few during the entire 20th century, and none in more recent decades. Further, many public policies result in the deaths of innocent people, such as when governments set highway speed limits, automobile safety standards, building safety codes, and prescription drug testing procedures. These decisions may result in the deaths of thousands of innocent people, and, by comparison, the number of innocent people executed is negligible.
Another critical legal issue surrounding the death penalty in the U.S. is whether it is imposed unfairly with racial bias. The issue first came to light in the 1987 Supreme Court case, McCleskey v. Kemp. The defendant, Warren McCleskey, was a black man who was sentenced to death some years earlier in Georgia for killing a white police officer. On appeal to the Supreme Court, McCleskey’s attorney argued that the sentence was the result of racial bias. To support his case he relied on research by law professor David Baldus who studied over 2,000 murder cases that went to trial in Georgia during the 1970’s, the period in which McCleskey committed his crime. Among Baldus’s findings were, first, murderers were 4.3 times more likely to receive the death penalty if their victims were white rather than black. Thus, in the eyes of the justice system, the lives of black victims count less than the lives of white ones. Second, when victims were white, the murderers who were black were more likely to receive the death penalty than white murderers. Thus, in the eyes of the justice system, more leniency was shown to white killers than to black ones. Ultimately, the Court ruled against McCleskey. While the Court agreed that there were racial disparities in how the death penalty was carried out in Georgia, they held that it did not violate McCleskey’s constitutional right of equal protection under the law. Convicts like McCleskey cannot argue that they’ve been wronged because of a general pattern of racial bias; rather, a convict must show that race affected his or her specific case. McCleskey was executed in 1991.
Although Baldus’s findings were restricted to Georgia’s death penalty cases in the 1970s, other studies draw similar conclusions about more recent death penalty convictions nationwide. Currently more than half of all people on death row are people of color, most of whom are black. A 2006 study by a Stanford University research team concluded that black male murderers found guilty of killing a white person were more than twice as likely to get the death penalty when they had stereotypically black-looking features, such as darker skin (Jennifer Eberhardt, "Looking Deathworthy”).
Death penalty defenders often concede that there is an element of racial bias when the death penalty is handed down, but it is actually a bias against white killers, not against black killers. The reason is that, first, the criminal justice system under-punishes those who kill blacks, just as Baldus indicated. Second, most killings occur within racial groups; that is, blacks typically kill blacks, whites typically kill whites. The result is that black killers are on the whole punished more lightly than white killers, both with the death penalty and the length of prison terms. Death penalty advocate John McAdams writes,
What the studies do show is a huge bias against black victims. Offenders who murder black people get off much more lightly than those who murder whites. Since the vast majority of murders are intraracial and not interracial, this translates into a system that lets black murders off far more easily than white murderers. [U.S. Senate, Judiciary Committee, An Examination of the Death Penalty in the United States, 2006]
According to McAdams, there are racial disparities throughout the criminal justice system – particularly insofar as the punishments are stiffer when the victim is white. This is certainly unfortunate and it exposes an imperfection in the system as a whole. Nevertheless, McAdams argues, this does not mean we should stop punishing people altogether or stop executing convicted killers.
ARGUMENTS PRO AND CONTRA
The Conservative Position
The conservative view of capital punishment is that it is at least sometimes morally justifiable and it should be legal. Advocates of this view are often called “retentionists”, indicating that they seek to retain the practice of capital punishment in society. The main arguments for the conservative position are these.
1. Retribution: the death penalty is deserved and ultimately balances the scales of justice. A criticism of this argument is that, while justice demands that murderers be punished, literal eye for an eye retribution is not an acceptable means of punishment in civilized societies.
2. Incapacitation: the death penalty keeps the murderer from killing again. A criticism of this argument is that murderers aren’t often repeat killers, and the public overestimates the danger.
3. Deterrence: the death penalty deters crime. A criticism of this argument is that there is no conclusive evidence that the death penalty deters more than long term imprisonment.
4. Financial Costs: Detaining criminals in prison for life is very expensive, and society should not have to pay those costs for murderers. A criticism of this argument is that justice should not be determined by financial considerations. We could cut the costs of the criminal justice system even more by eliminating juries and appeal processes for all crimes. We could cut back on food and cell space in all prisons. We could, in short, have our criminal justice system be like those in third world countries, which are much more cost-effective than ours. In an advanced society, though, there is always a high financial price that we pay for being just and humane, and that price is worth it.
The Liberal Position
The liberal view of capital punishment is that it is never morally justifiable and it should be illegal. Advocates of this position are sometimes called “abolitionists” in the sense that they seek to abolish the practice of the death penalty. The chief arguments for the liberal position are these.
1. Proportionality: the death penalty is imposed arbitrarily, depending on the state in which one resides, the attitudes of specific prosecutors, judges, jurors, and one’s ability to afford a good defense. As one Supreme Court justice said, the death penalty should be imposed with “reasonable consistency, or not at all.” A criticism of this argument is that many states have proportionality reviews to check that the death penalty is appropriate to the crime.
2. Executing the innocent: mistakes are made in the criminal justice system that sometimes result in innocent people being executed. Would you be willing to personally throw the switch to execute someone knowing that there’s a real possibility that he could be innocent? Probably not. A criticism of this argument is that it is difficult to identify clear cases of innocent people being executed, and, even if it does occasionally happen, many public policies result in the deaths of innocent people.
3. Racial bias: Capital punishment is imposed with racial bias. A criticism of this argument is that the real bias appears to be against white killers (who typically kill whites), and not against black killers (who typically kill blacks). Typical black killers get the lighter sentences.
4. International Standards: The most industrialized and advanced countries around the world have abandoned the death penalty, and by retaining the practice the U.S. places itself in the same category as under developed countries. This is particularly so with the quantity of executions we carry out, which compares to the most tyrannical governments today. A criticism of this argument is the American culture is not completely comparable to that of other developed countries. Our per capita murder rate is among the highest in the world, and by far the highest of the most developed countries. Perhaps when our crime rates drop to those of the United Kingdom or France we can follow their lead with the death penalty.
A Moderate Compromise
Technically, there is no true middle position on the issue of the death penalty since abolitionists on the liberal side believe that it is never justified under any circumstance. Nevertheless, there is room for at least some compromise by making the system less arbitrary and prone to error. For example, some states overuse the death penalty, most notably Texas which in 2007 was responsible for more than 60% of all executions in the U.S. Other heavy users of the death penalty are also Southern states. Bringing these states more in line with national averages would eliminate some charges of disproportionality. To accomplish this, the Supreme Court could set strict guidelines to assure that the death penalty is imposed proportionally, only on the truly guilty, and without racial bias.
2. AGAINST THE DEATH PENALTY
Stephen B. Bright
Attorney Stephen B. Bright is a visiting lecturer at Yale Law School, and President of the Southern Center for Human Rights. In the essay below, he argues that the death penalty today is still as arbitrary as it was decades ago, and it should be abolished. Pursuing the death penalty is based on the decision of individual prosecutors, and juries in white communities hand down death penalty verdicts more than those in mixed communities. He argues that wrongful convictions frequently occur and result from poor legal representation, mistaken identifications, the unreliable testimony of informants who swap their testimony for lenient treatment, and police and prosecutorial misconduct.” Further, according to Bright, the death penalty does not deter since murderers are not the kind of people who rationally assess risks, and, even if they were, they don’t have the right information about the death penalty to make a reasoned judgment.
. . . This is a most appropriate time to assess the costs and benefits of the death penalty. Thirty years ago, in 1976, the Supreme Court allowed the resumption of capital punishment after declaring it unconstitutional four years earlier in Furman v. Georgia. Laws passed in response to Furman were supposed to correct the constitutional defects identified in 1972. However, 30 years of experience has demonstrated that those laws have failed to do so.
The death penalty is still arbitrary. It's still discriminatory. It is still imposed almost exclusively upon poor people represented by court-appointed lawyers. In many cases the capabilities of the lawyer have more to do with whether the death penalty is imposed than the crime. The system is still fallible in deciding both guilt and punishment. In addition, the death penalty is costly and is not accomplishing anything. And it is beneath a society that has a reverence for life and recognizes that no human being is beyond redemption.
Many supporters of capital punishment, after years of struggling to make the system work, have had sober second thoughts about it. Justice Sandra Day O'Connor, who leaves the Supreme Court after 25 years of distinguished service, has observed that "serious questions are being raised about whether the death penalty is being fairly administered in this country" and that "the system may well be allowing some innocent defendants to be executed." Justices Lewis Powell and Harry Blackmun also voted to uphold death sentences as members of the court, but eventually came to the conclusion, as Justice Blackmun put it, that "the death penalty experiment has failed.'"
The Birmingham News announced in November that after years of supporting the death penalty it could no longer do so "[b]ecause we have come to believe Alabama's capital punishment system is broken. And because, first and foremost, this newspaper's editorial board is committed to a culture of life." . . .
The death penalty is not imposed to avenge every murder and—as some contend—to bring "closure" to the family of every victim. There were over 20,000 murders in 14 of the last 30 years and 15,000 to 20,000 in the others. During that time, there have been just over 1000 executions—an average of about 33 a year. Sixteen states carried out 60 executions last year. Twelve states carried out 59 executions in 2004, and 12 states put 65 people to death in 2003.
Moreover, the death penalty is not evenly distributed around the country. Most executions take place in the South, just as they did before Furman. Between 1935 and 1972, the South carried out 1887 executions; no other region had as many as 500. Since 1976, the Southern states have carried out 822 of 1000 executions; states in the Midwest have carried out 116; states in the west 64 and the Northeastern states have carried out only four. The federal government, which has had the death penalty since 1988, has executed three people. Only one state, Texas, has executed over 100 people since 1976. It has executed over 350.
Further experimentation with a lethal punishment after centuries of failure has no place in a conservative society that is wary of too much government power and skeptical of government's ability to do things well. We are paying an enormous cost in money and the credibility of the system in order to execute people who committed less than one percent of the murders that occur each year. The death penalty is not imposed for all murders, for most murders, or even for the most heinous murders. It is imposed upon a random handful of people convicted of murder—often because of factors such as the political interests and predilections of prosecutors, the quality of the lawyer appointed to defend the accused, and the race of the victim and the defendant. A fairer system would be to have a lottery of all people convicted of murder; draw 60 names and execute them.
Further experimentation might be justified if it served some purpose. But capital punishment is not needed to protect society or to punish offenders. We have not only maximum security prisons, but "super maximum" prisons where prisoners are completely isolated from guards and other inmates, as well as society.
I. THE DEATH PENALTY IS ARBITRARY AND UNFAIR
Justice Potter Stewart said in 1972 that the death penalty was so arbitrary and capricious that being sentenced to death was like being struck by lightning. It still is. As was the case in 1972, there is no way to distinguish the small number of offenders who get death each year from the thousands who do not. This is because prosecutorial practices vary widely with regard to the death penalty; the lawyers appointed to defend those accused are often not up to the task of providing an adequate defense; differences between regions and communities and the resulting differences in the composition of juries; and other factors.
A. Prosecutorial discretion and plea bargaining
Whether death is sought or imposed is based on the discretion and proclivities of the thousands of people who occupy the offices of prosecutor injudicial districts throughout the nation. (Texas, for example, has 155 elected prosecutors, Virginia 120, Missouri 115, Illinois 102, Georgia 49, and Alabama 40). Each prosecutor is independent of all the others in the state.
The vast majority of all criminal cases—including capital cases—are decided not by juries, but through plea bargains. The two most important decisions in any capital case are the prosecutor's—first, whether to seek the death penalty and, second, if death is sought, whether to agree to a lesser punishment, usually life imprisonment without any possibility of parole, instead of the death penalty as part of a plea bargain.
The practices of prosecutors vary widely. They are never required to seek the death penalty. Some never seek it; some seek it from time to time; and some seek it at every opportunity. Some who seek it initially will nevertheless agree to a plea bargain and a life sentence in almost all cases; others will refuse a plea disposition and go to trial. In some communities, particularly predominantly white suburban ones, the prosecutor may get a death sentence from a jury almost any time a case goes to trial. In other communities—usually those with more diverse racial populations—the prosecutors often find it much more difficult, if not impossible, to obtain a death sentence. Those prosecutors may eventually stop seeking the death penalty because they get it so seldom. And regardless of the community and the crime, juries may not agree to a death sentence. Timothy McVeigh's codefendant, Terry Nichols, was not sentenced to death by either a federal or state jury for his role in the bombing of the federal building in Oklahoma City that caused 168 deaths.
Without being critical of any person or community and without questioning the motives of any of them, it is clear that there is not going to be consistent application of the death penalty when prosecutors operate completely independent of one another.
Because of different practices by prosecutors, there are geographical disparities with regard to where death is imposed within states. Prosecutors in Houston and Philadelphia have sought the death penalty in virtually every case where it can be imposed. As a result of aggressive prosecutors and inept court-appointed lawyers, Houston and Philadelphia have each condemned over 100 people to death—more than most states. Harris County, which includes Houston, has had more executions in the last 30 years than any state except Texas and Virginia.
Whether death is sought may depend upon which side of the county line the crime was committed. A murder was committed in a parking lot on the boundary between Lexington County, South Carolina, which, at the time, had sentenced 12 people to death, and Richland County, which had sent only one person to death row. The murder was determined to have occurred a few feet on the Lexington County side of the line. The defendant was tried in Lexington County and sentenced to death. Had the crime occurred a few feet in the other direction, the death penalty almost certainly would not have been imposed.
There may be different practices even within the same office. For example, an Illinois prosecutor announced that he had decided not to seek the death penalty for Girvies Davis after Davis' case was reversed by the state supreme court. However, while the case was pending, a new prosecutor took office and decided to seek the death penalty for Davis. He was successful and Davis was executed in 1995.
As a result of a plea bargain, Ted Kaczynski, the Unabomber, who killed three, injured many others, and terrified even more by mailing bombs to people, avoided the death penalty. Serial killers Gary Leon Ridgway, who pleaded guilty to killing 48 women and girls in the Seattle area, and Charles Cullen, a nurse who pleaded guilty to murdering 29 patients in hospitals in New Jersey and Pennsylvania, also avoided the death penalty through plea bargains, as did Eric Rudolph, who killed security guard in Birmingham and set off a bomb that killed one and injured many more at the 1996 Olympics. Rudolph was allowed to plead and avoid the death penalty in exchange for telling the authorities where he hid some dynamite in North Carolina. Others avoid the death penalty by agreeing to testify for the prosecution against the other(s) involved in the crime.
Although some serial killers are sentenced to death, most of the men and women on death rows are there for crimes that, while tragic and fully deserving of punishment, are less heinous than the examples mentioned above as well as many other cases in which death was not imposed.
B. Representation for the accused
Once a prosecutor decides to seek death, the quality of legal representation for the defendant can be the difference between life and death. A person facing the death penalty usually cannot afford to hire an attorney and is at the mercy of the system to provide a court-appointed lawyer. While many receive adequate representation (and often are not sentenced to death as a result), many others are assigned lawyers who lack the knowledge, skill, resources—and sometime even the inclination—to handle a serious criminal case. People who would not be sentenced to death if properly represented are sentenced to death because of the incompetent court-appointed lawyers.
For example, Detmis Williams was convicted twice of the 1978 murders of a couple from Chicago's south suburbs and sentenced to death. He was represented at his first trial by an attorney who was later disbarred and at his second trial by a different attorney who was later suspended. Williams was later exonerated by DNA evidence. Four other men sentenced to death in Illinois were represented by a convicted felon who was the only lawyer in Illinois history to be disbarred twice.
A dramatic example of how bad representation can be is provided by this description from the Houston Chronicle of a capital trial:
Seated beside his client—a convicted capital murderer—defense attorney John Benn spent much of Thursday afternoon's trial in apparent deep sleep.
His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit upright. Then it happened again. And again. And again.
Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the Nov. 19, 199], arrest of George McFarland in the robbery-killing of grocer Kenneth Kwan.
When state District Judge Doug Shaver finally called a recess, Benn was asked if he truly had fallen asleep during a capital murder trial.
"It's boring," the 72-year-old longtime Houston lawyer explained. . .
Court observers said Benn seems to have slept his way through virtually the entire trial.
This sleeping did not violate the right to a lawyer guaranteed by the United States Constitution, the trial judge explained, because, "[t]he Constitution doesn't say the lawyer has to be awake." On appeal, the Texas Court of Criminal Appeals rejected McFarland's claim that he was denied his right to counsel over the dissent of two judges who pointed out that "[a] sleeping counsel is unprepared to present evidence, to cross-examine witnesses, and to present any coordinated effort to evaluate evidence and present a defense." Last year, the Court reaffirmed its opinion.
George McFarland was one of at least three people sentenced to death in Houston at trials where their lawyers slept. Two others were represented by Joe Frank Cannon. One of them, Carl Johnson, has been executed. Cannon was appointed by Houston judges for forty years to represent people accused of crimes in part because of his reputation for hurrying through trials like "greased lightening," and despite his tendency to doze off during trial. Ten of Cannon's clients were sentenced to death, one of the largest numbers among Texas attorneys. Another notorious lawyer appointed to defend capital cases in Huston had 14 clients sentenced to death.
The list of lawyers eligible to handle capital cases in Tennessee in 2001, circulated to trial judges by the state Supreme Court, included a lawyer convicted of bank fraud, a lawyer convicted of perjury, and a lawyer whose failure to order a blood test let an innocent man languish in jail for four years on a rape charge. Courts in other states have upheld death sentences in cases in which lawyers were not aware of the governing law, were not sober, and failed to present any evidence regarding either guilt-innocence or penalty. One federal judge, in reluctantly upholding a death sentence, observed that the Constitution, as interpreted by the U.S. Supreme Court, "does not require that the accused, even in capital cases, be represented by able or effective counsel.'"
The Supreme Court has said that the death penalty should be imposed "with reasonable consistency, or not at all.” That is simply not happening.
II. THE COURTS ARE FALLIBLE
Innocent people have been wrongfully convicted because of poor legal representation, mistaken identifications, the unreliable testimony of people who swap their testimony for lenient treatment, police and prosecutorial misconduct and other reasons. Unfortunately, DNA testing reveals only a few wrongful convictions. In most cases, there is no biological evidence that can be tested. In those cases, we must rely on a properly working adversary system—in which the defense lawyer scrutinizes the prosecution's case, consults with the client, conducts a thorough and independent investigation, consults with experts, and subjects the prosecution case to adversarial testing—to bring out all the facts and help the courts find the truth. But even with a properly working adversary system, there will still be convictions of the innocent. The best we can do is minimize the risk of wrongful convictions. And the most critical way to do that is to provide the accused with competent counsel and the resources needed to mount a defense.
The innocence of some of those condemned to die has been discovered by sheer happenstance and good luck. For example, Ray Krone was convicted and sentenced to death in Arizona based on the testimony of an expert witness that his teeth matched bite marks on the victim. During the ten years that Krone spent on death row, scientists developed the ability to compare biological evidence recovered at crime scenes with the DNA of suspects. DNA testing established that Krone was innocent.
The governor of Virginia commuted the death sentence of Earl Washington to life imprisonment without parole in 1994 because of questions regarding his guilt. Were it not for that, Washington would not have been alive six years later, when DNA evidence—not available at the time of Washington 's trial or the commutation -established that Washington was innocent and he was released.
Poor legal representation led to a death sentence for Gary Drinkard, who spent five years on Alabama's death row for a crime he did not commit. At his trial, he was represented by one lawyer who did collections and commercial work and another who represented creditors in foreclosures and bankruptcy cases. The case was reversed on appeal for reasons having nothing to do with the quality of his representation. Our office joined with an experienced criminal defense lawyer from Birmingham and represented him at his retrial. After all the evidence was presented, including the testimony of the doctor, the jury acquitted Drinkard in less than two hours.
Evidence of innocence has surfaced at the last minute and only because of volunteers who found it. Anthony Porter, sentenced to death in Illinois, went through all of the appeals and review that are available for one sentenced to death. Every court upheld his conviction and sentence. As Illinois prepared to put him to death, a question arose as to whether Porter, who was brain damaged and mentally retarded, understood what was happening to him. Just two days before he was to be executed, a court stayed his execution for a mental examination. After the stay was granted, a journalism class at Northwestern University and a private investigator examined the case and proved that Porter was innocent. They obtained a confession from the person who committed the crime. Porter was released, becoming the third person released from llIinois's death row after being proven innocent by a journalism class at Northwestern."
There has been some argument over how many innocent people have been sentenced to death and whether any have been executed. We do not know and we cannot know. If DNA evidence had not been available to prove Ray Krone's innocence, if Earl Washington had been executed instead of commuted to life, if Gary Drinkard had not received a new trial, and if Anthony Porter was not mentally impaired and the journalism class had not come to his rescue, all would have been executed and we would never know to this day of their innocence. Those who proclaim that no innocent person has ever been executed would continue to do so, secure in their ignorance.
With regard to the quibbling over how many people released from death rows have actually been innocent, even one innocent person being convicted of a crime and sentenced to death or a prison term is one too many. "Close enough for government work" is simply not acceptable when life and liberty are at stake. Regardless of how one counts and what one counts, we know that an unacceptable number of innocent people have been convicted in both capital and non-capital cases.
There is nothing wrong with looking at the system as it really is and with a little humility about what it is capable of. There are cases—many of them—in which the criminal courts have correctly determined that a person is guilty. There are others where it is clear the system was wrong because the innocence of those convicted has been conclusively established through DNA evidence or other compelling proof. There are also cases in which it is virtually impossible to tell for sure whether a person is guilty or innocent. There is no DNA evidence or other conclusive proof. The case depends upon which witness the jury believes. Or new facts come to light after the trial. It is impossible to know what the jury's verdict would have been if it had considered those facts.
We want to believe that our judges and juries are capable of doing the impossible—determining the truth in every instance. And in most instances, they can determine the truth. But cases that depend upon eyewitness identification, forensic evidence from a crime laboratory with shoddy practices like those that have come to light in Houston and Oklahoma City, the testimony of a co-defendant, who claims the defendant was the primary person, or the cellmate who claims the defendant admitted committing the crime to him, or there is inadequate defense for the accused, there is a serious possibility of an error. Just last week, a judge who presided over a capital case in California in which death was imposed wrote to the governor urging clemency for the defendant because the judge believes the sentence was based on false testimony from a jailhouse informant.
Often overlooked is the jury's verdict with regard to sentence—whether to condemn the person to die or sentence him to a long prison sentence—which is as important as its verdict on guilt. The decision of the legal system to bring about the deliberate, institutionalized taking of a person's life is surely a determination that the person is so beyond redemption that he or she should be eliminated from the human community. But that determination is quite often erroneous.
I have seen many people who were once condemned to die but are now useful and productive members of society. One of them, Shareef Cousin, works in our office. He was sentenced to death when he was 16 years old. However, it turned out that he was not guilty of the murder for which he was sentenced to death. We are tremendously impressed with him. He is a hard worker; someone we have found we can count on. He is applying to colleges. He is very serious about getting in to college and will be a very serious student.
But it is not just the innocent. William Neal Moore spent 16 1/2, years on Georgia's death row for a murder he committed in the course of a robbery. He had eight execution dates and came within seven hours of execution on one occasion. His death sentence was commuted to life imprisonment in 1990 and a year later he was paroled. He comes to the law schools and speaks to my classes every year. He was very religious while in prison, and he is has remained every bit as religious in the 15 years he has been out. He met and married someone with two daughters and has been a good father. Both girls are in college. He has judgment and maturity now that he did not have when he committed the crime.
I can give you many more examples like these of people who were condemned to die but who have clearly demonstrated that they were more than the worst thing they ever did.
III. PEOPLE WHO KILL ARE NOT DETERRED
The scholars will address whether a punishment that is imposed in less than one percent of murder cases serves as a deterrent to murder. I offer no statistics, only a few observations from over 30 years of dealing with the people who are supposedly being deterred.
In my experience, these are not people who assess risks, plan ahead and make good judgments. They would not have committed their crimes if they thought they were going to be caught, regardless of the punishment. But they don't expect to get caught so they don't even get to the question of what punishment will be inflicted. Why would anyone commit a crime—for example, murder and robbery to get money to buy drugs—if they thought that instead of enjoying the drugs in the free world they would be spending the rest of their life in prison or even years in prison?
Even if they get to the issue of punishment—I cannot imagine how they process the information. A large portion of the people who end up on death rows are people with very poor reading skills. They don't read the newspaper or watch the news or listen to public radio. When they are assessing the risk of getting executed, are they supposed to consider that nationally they have a one percent chance of getting the death penalty if they are caught and convicted? Or are they to consider whether they are in one of the 12 to 16 states that has carried out a death sentence in the last three years? How much of a deterrent can it be in the states that have two or three people on their death rows and have carried out one or two executions over 30 years? Are they deterred if they are in New Hampshire, which has a death penalty law but has never imposed it? How do they learn that New Hampshire has a death penalty law? Do states that have not carried out any executions or have carried out just a few need to carry out more in order to deter, or can they benefit from executions in other states?
The more routine executions become, the less media coverage they get. How are people supposed to find out about executions and be deterred if they are not getting any media coverage?
Beyond that, is the potential murderer going to take into account the likelihood of being assigned a bad court-appointed lawyer, of being tried before an all-white jury instead of a racially diverse jury, and other factors which will increase his chances of getting the death penalty?
The people I have encountered who committed murder do not have the information and many are not capable of going through a reasonable consideration of it if they had it. Many people who commit murder suffer from schizophrenia, bi-polar disorder, major brain damage or other severe mental impairments. They may have a very distorted sense of reality or may not even be in touch with reality.
Finally, if death were a deterrent, it would surely deter gang members and drug dealers. They see death up close. Killings over turf and in retaliation for other killings make death very real. It is summary and there are no appeals. They see brothers and friends killed; go to funerals. They have much greater likelihood of getting death on the streets than in the courts. But, it does not change their behavior.
IV. THE COST IS NOT JUSTIFIED
There is a growing recognition that it is just not worth it. A Florida prosecutor let a defendant plead guilty to killing five people because a sentence of life imprisonment without parole would bring finality. The Palm Beach Post observed "The State saves not only the cost of a trial; the victims' relatives—who supported the deal- do not have to relive the horror. The state will save more by avoiding years of appeals; . . . Most important, [the defendant] never again will threaten the public.""
New York spent more than $170 million on its death penalty over a ten year period, from 1995 to 2005, before its Court of Appeals declared its death penalty law unconstitutional. During that time, the state did not carry out a single execution. Only seven persons were been sentenced to death—an average of less than one a year—and the first four of those sentences were struck down by the New York Court of Appeals on various grounds. The speaker of the state's assembly remarked, "I have some doubt whether we need a death penalty. . . . We are spending tens of millions of dollars [that] may be better spent on educating children.” He also pointed out that the state now has a statute providing for life imprisonment without parole that ensures those convicted of murder cannot go free.
Similarly, Kansas did not carry out any executions between 1994, when it reinstated the death penalty, and 2004 when the state supreme court ruled it unconstitutional. Kansas had eight people under sentence of death, six from one county.
New Jersey, which just declared a moratorium on executions, has spent $253 million on its death penalty since 1983. It has yet to carry out an execution and has only ten people on its death row. In other words, the state has spent a quarter of a billion dollars over 23 years and has not carried out a single execution. Michael Murphy, a former prosecutor for Morris County, remarked, "if you were to ask me how $11 million a year could best protect the people of New Jersey, I would tell you by giving the law enforcement community more resources. I'm not interested in hypotheticals or abstractions, 1 want the tools for law enforcement to do their job, and $11 million can buy a lot of tools."
These are states which made every effort to do it right. It is also possible to have death on the cheap. A number of states have done this. Capital cases may last as little as a day and a half. Georgia recently executed a man who was assigned a lawyer- a busy public defender—just 37 days before his trial and denied any funds for investigation or expert witnesses. But this completely undermines confidence in the courts and devalues life.
Supreme Court Justice Arthur Goldberg said that the deliberate institutionalized taking of human life by the state is the greatest degradation of the human personality imaginable. It is not just degrading to the individual who is tied down and put down. It is degrading to the society that carries it out. It coarsens the society, takes risks with the lives of the poor, and diminishes its respect for life and its belief in the possible redemption of every person. It is a relic of another era. Careful examination will show that the death penalty is not serving any purpose in our society and is not worth the cost.
Source: U.S. Senate Judiciary subcommittee hearing on An Examination of the Death Penalty in the United States (2006). Notes have been removed (see www.gpoaccess.gov/chearings for complete text).
Source: U.S. Senate, Judiciary subcommittee hearing on An Examination of the Death Penalty in the United States (2006). Notes have been removed (see www.gpoaccess.gov/chearings for complete text).
QUESTIONS FOR REVIEW
Please answer all of the following questions for review.
1. What is Beccaria’s view of punishment?
2. What is Locke’s position on capital punishment?
3. What is wrong with the literal “eye for an eye” formula for capital punishment?
4. What is Bedau’s argument against using the death penalty as a deterrent?
5. What did the Supreme Court decide about the death penalty in Furman v. Georgia (1972)?
6. What did the Supreme Court decide about the death penalty in Gregg v. Georgia (1976)?
7. Explain the problem of executing the innocent.
8. Explain the problem of racial bias with capital punishment.
9. What are the four conservative arguments against the death penalty?
10. What are the four liberal arguments in favor of the death penalty?
[Stephen B. Bright]
11. According to Bright, how has prosecutorial discretion and plea bargaining affected death penalty convictions?
12. According to Bright, in what ways have Courts been fallible in handing down wrongful convictions?
13. According to Bright, what is the risk assessment ability of murderers?
14. According to Bright, what is the problem with the appeals process?
QUESTIONS FOR ANALYSIS
Please select only one question for analysis from those below and answer it.
1. Explain the four aims of punishment presented at the outset of the chapter and discuss whether any of these are unjustifiable.
2. Discuss Kant’s retributive theory of capital punishment and whether you agree with it.
3. Discuss whether there is any good evidence that capital punishment deters crime better than alternative punishments.
4. Discuss whether proportionality review systems are effective in assuring that death penalty convictions are imposed consistently
5. Discuss whether the death penalty is imposed with racial bias.