Abolishing the Death Penalty

After centuries of the status quo, it’s time to put an end to the death penalty; the death penalty has been carried out unevenly since its beginning. Certainly there are arguments for its effectiveness, arguments that a retributive society, at least in the instance of the death penalty, is completely acceptable.

There are arguments that the death penalty is a deterrent, which it has had a positive effect on the national murder rate and a positive effect on the murder rate in States that still allow the death penalty compared to those who no longer do. The problem with that thinking is that it ignores the bigger picture. That line of thinking ignores the fact that the death penalty, despite the fact that it is widely proclaimed as the punishment for the exceptionally evil, or brutal killings; is metered out inconsistently.

The death penalty is carried out on the wrong person, for the wrong reasons, and by the wrong people. If one innocent person is put to death by the state, if one person is caught in a system that has the kind of flaws that can lead to their death, shouldn’t that system be changed? In the following paper, I will lay out the reasons the death penalty should be done away with

The argument most used for the effectiveness of the death penalty is that it is simply something that needs to be done, that the punishment fits the crime. Michael Davis wrote that “We may, I think, agree that someone who commits several first-degree murders on one occasion in an exceptionally brutal way deserves a penalty significantly more severe than the penalty for simple multiple murder (assuming the more severe penalty is both possible and otherwise permissible).”1 Davis was using the doctrine of Lex Talionis, the idea that a person deserves to experience the suffering or moral evil he has inflicted on his victim. While the doctrine name itself is not well known, the ideals behind it are known by almost everyone in the world, and dates back centuries, an eye for an eye.

The problem, as Claire Finkelstein points out in her paper “Retribution and the Death Penalty”, is that taken literally, Lex Talionis is an absurd doctrine – no one thinks we should rape rapists, assault assailants, or burgle the homes of burglars.2 So why do we apply the doctrine only to murderers? Aren’t child molesters despicable human beings?

If someone kidnaps a child, even if that child is returned a month later unharmed for the most part, is the family of that kidnapped child allowed to take a member of the criminal’s family and do acts that only the most deprived minds can manufacture to them? Certainly if it was attempted, that family would be tried and convicted of committing a crime. Finkelstein lies out that “indeed, once one begins to consider all the deviant forms of behavior our criminal codes outlaw, it is clear that the vast majority of criminal acts are not ones we feel entitled to impose by way of punishment that matches the crime.”

The United States does not legally allow torture of it’s prisoners, no matter how heinous the crime, it is difficult to see torture as off-limits on the grounds that it is unacceptably severe, because it is actually most plausible to think of torture as less severe than death. A person can recover from the injuries suffered from torture, at least to some degree, death is unrecoverable.

When Nebraska’s legislature discussed outlawing the death penalty, Senator John Harms brought up the emotional side of the retributivists when he made the statement “How are we supposed to look the victim’s family in the eyes when we tell them their loved one’s killer won’t be subjected to the full extent of the law?” It’s certainly a moving argument, and one that is used most often by politicians who are trying to appear tough on crime, but vengeance should not be a nationally recognized punishment.

Many families have said that after the initial feeling of “justice being done” there’s an empty feeling, and eventually they just move on to grieving for a family member who was taken much too soon, and in too horrible a way to comprehend. There is also an argument to be made that punishment is not designed to make people feel better, it is designed to remove the criminal from his element; an attempt to limit his ability to repeat his lawless actions. Life without parole succeeds in that task.

Our society having a need to rise above retribution is far from the only reason we should abolish the death penalty. There’s also the financial burden the average tax payer must take on when dealing with the death penalty. It’s been a long held myth that incarcerating a criminal for the rest of his natural life would actually be more expensive than putting him to death. However this line of thinking does not take into effect the great costs that are incurred when going through the entire death penalty process.

In Kansas, the costs of capital cases are 70% more expensive than comparable non-capital cases, including the costs of incarceration.3 one can only imagine that a Midwestern state in the finical state of Kansas could do with the money it saved without having to deal with death penalty cases.

In Texas, a death penalty case costs an average of $2.3 million a year, which amounts to about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. 4 Enforcing the death penalty costs Florida $51 million a year above what it would cost to punish all first-degree murderers with life in prison without parole. Based on the 44 executions Florida had carried out since 1976 that amounts to a cost of $24 million for each executed prisoner. 5

In Indiana, the total costs of the death penalty exceed the complete costs of life without parole sentences by about 38%.6 Finally, The most comprehensive study in the country found that the death penalty costs North Carolina $2.16 million per execution over the costs of sentencing murderers to life imprisonment.7 These independent studies illustrate one important fact. All across the country, State and local governments are feeling a real financial crunch because, not in spite of, putting people to death.

Of course the argument exists that the rising costs of putting people to death exists because of the amount of appeals, that if we were to cut down the legal recourses that inmates on Death Row have, that the costs of putting someone to death will go down dramatically. The problem with this argument is the very real danger of losing something that makes this country great. Due process is something this country practices that separates itself from every other country in the world. Even other democratic countries like Great Britain, Germany, Italy, and France do not have the kind of protections we give our citizens, whether the majority of the country believes they should have them at all.

Why are these protections important? Why must we make sure that anyone on death row has vast amounts of resources at their disposal, in an attempt to avoid that most final punishment? Because put simply, the death penalty is not carried out evenly. By its own definition, the death penalty is not designed to be carried out evenly, it is to be used on people who commit heinous and horribly malicious acts of murder. If the law itself is uneven, and left up to the judgment of those whose ulterior motives can’t possibly be known.

Already, our courts have made it extremely hard or impossible, to execute certain groups of people. In 2005, the Supreme Court struck down the death penalty for juveniles in their ruling on Roper v. Simmons.8 Twenty-two juvenile defendants had been executed for crimes committed since 1976 and apparently the Supreme Court no longer found that palatable.

Three years prior to that ruling the court held that executing the mentally retarded was unconstitutional, and many mental healthy organizations including he American Psychiatric Association, the American Psychological Association, the National Alliance for the Mentally Ill have all argued that there needs to be an exemption for the severely mentally ill. The young, and the mentally infirmed can be argued away by claiming they don’t have a true understanding of their actions, what effect their brutal slayings really had, the finality of it; the same cannot be said for adult women.

As of June 7th of this year, 50 women occupy death row, which constitutes just 1.7% of those awaiting the death penalty. Since 1976, the United States has carried out 1,080 total executions, only 11 of those were women.9 Even with these limitations in the practice of the death penalty, the Supreme Court has a long way to go.

Even in this day and age, race puts far too heavy a burden on the death penalty. A comprehensive study in North Carolina found that the odds of receiving a death sentence rose by 3.5 times among those defendants whose victims were white. Another study, this time in California found that those who killed whites were over three times more likely to be sentenced to death than those who killed blacks and over four times more likely than those who killed Latinos.10 Nationally About 80% of the murder victims in cases resulting in an execution were white, even though only 50% of murder victims are Caucasian.

The racism doesn’t stop there, In 96% of the states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both.11 Whether this brand of racism is intentional, or simply a by product of a bad system is up for interpretation, but a court system that still believes those who kill white people deserve to die more often than when a black or Hispanic, or any number of other nationalities is murdered is a court system that should not hold the keys to life and death.

The death penalty has become an albatross around the neck of the United States. We cannot hold ourselves up as the leaders of the free world, a beacon of freedom, Democracy, and justice, while continuing to hold a flawed system of inalterable punishment in high esteem. There have been recent arguments, and studies that contrary to popular belief, the death penalty may indeed curb the murder rate.

Of course a reduction in violent crime is always desired, but at what cost? Should the people, and government of this country allow a doctrine that willfully causes the suffering of the few, in order to arguably, help the many? How many innocent lives are too many? The Texas state legislature has recently introduced legislation that would allow the sentence of death to apply to pedophiles. If this legislation were to pass, it would be the first time the government endorsed a punishment inarguably harsher than the crime. That kind of slippery slope can have ramifications we can’t hope to see yet.

It is for the reasons stated above that after centuries of the status quo, after decades of tacit approval of a system that causes more problems than it solves, that the time has come to finally, completely, and absolutely abolish the death penalty.

Citations

1. “A Sound Retributive Argument for the Death Penalty” Michael Davis
2. “Death and Retribution”, Claire Finkelstein
3. Kansas Performance Audit Report, December 2003
4. Study printed by Dallas Morning News, March 8, 1992
5. Palm Beach Post, January 4, 2000
6. Indiana Criminal Law Study Commission, January 10, 2002
7. Duke University Study, May 1993
8. Roper v. Simmons, Supreme Court Ruling, No. 03-633, Argued October 13, 2004. Decided March 1, 2005
9. “Death Penalty For Female Offenders” by Victor L. Streib
10. Pierce & Radelet, Santa Clara Law Review 2005
11. Prof. David Baldus report to the ABA, 1998
12. Prof. Jeffrey Pokorak, Cornell Law Review, 1998