Introduction
The death penalty in the early eighteenth century was the equivalent of prison today – the standard punishment for a wide range of serious crimes. Today, people criticize our prisons for not working as well as they should, and colonial Americans sometimes leveled the same kind of criticism at the death penalty. Back then colonists could be executed for robbery, burglary, arson, counterfeiting, poaching, and theft. In Massachusetts, blasphemy, adultery, and incest were also capital offenses for a time. The list of offenses for which a convict could receive a death sentence in 1700 would be considered shocking today. However, as late as 1960, Caryl Chessman was executed for kidnapping in Los Angeles.
These days, Americans pride themselves on their commitment to human rights, but the United States is virtually alone among Western nations in putting its criminals to death; and in some parts of the world, America’s use of capital punishment is considered inconsistent with human rights. The death penalty has many ethical, managerial, and legal facets. The purpose of this paper is to explore the issues involved in each in an effort to understand why killer justice is still prevalent in America.
Ethical Issues
One of the main justifications for capital punishment in its colonial days was penitence. Repentance before death was widely considered indispensable, and a death sentence was though uniquely able to facilitate repentance. Interestingly, it is through this usage that we came upon the term “penitentiary” to refer to prisons. People were genuinely concerned about the souls of criminals and figured that if these people knew they were going to die then they’d be more likely to repent than if death struck them at some unexpected time. Ethically speaking, this made a great deal of sense to colonial Americans. They believed they were doing criminals a huge favor by providing them with an opportunity to know the date and time of their death so they might have the opportunity to enter into eternity unencumbered by sin.
Capital punishment receives a lot of its support from the public, in part, because it provides retribution. However, is retribution the purpose of the criminal justice system? According to Justice Hugo Black in 1949, “Retribution is no longer the dominant objective of the criminal law.” Indeed, capital punishment failed to deter, rehabilitate (obviously), or perform any of the other functions of punishment, except that of retribution, which for most intellectuals by the end of the twentieth century was no longer a permissible goal. What is the point of our criminal justice system? According to our book, the purpose of criminal law is to prosecute violations against society. Does retribution fall into that category?
One of the main questions that should be asked of any punishment should be: Does it deter the crime? In the 1970s, economists constructed equations expressing the murder rate as a function of several factors (variables), one of which is the likelihood of being executed. They then used statistical regression techniques to determine the correlation between the murder rate and the likelihood of execution. In 1975, Isaac Ehrlich calculated that each execution prevented approximately eight murders. As any MBA would be quick to point out, one can show anything if one has the right set of data. Ehrlich’s list of factors was short and he seemed to use data that was predisposed to the conclusion he wanted. In other studies thought to be unbiased, a deterrent effect could not be statistically shown. This makes sense, of course, since who ever commits a capital crime with the expectation that they’ll get caught?
Recently, there have been many highly publicized occurrences of people being released from death row after their innocence is proven using DNA evidence or by some other means. Given the “human” factor in trials, is it ethical to do something as final as execution when, in many cases, the defendant’s guilt cannot be proven with absolute certainty? We know from out statistics class that the only way to ensure that innocent people are never executed is never execute anyone. Is executing the guilty so important that we should risk executing the innocent by mistake? Senator Jeremiah Denton of Alabama explained his position on the matter this way:
“Saying that we should not have the death penalty because we may accidentally execute an innocent man is like saying we should not have automobiles because some innocent people might accidentally be killed in them. Or we should not have trucking or we should not have aircraft, or we should not have elevators because we’re going to have accidents. There are going to be some mistakes committed. The question is, on balance, which way do we better promote the general welfare?”
Indeed, Senator, which way? The striking thing is that many people feel this way. They should put themselves in someone else’s shoes for a while. How quickly would they change their mind if they (or someone they loved) were falsely convicted of a capital crime?
Managerial Issues
The managerial issues relating to the death penalty have changed over the years. In colonial times, communities did not have the ability to imprison someone for life. Jails were frequently broken and there were no facilities for any sort of long-term imprisonment. The natural solution to these problems was to execute criminals and that would be that. The actual execution, however, provided a whole other set of managerial matters. In England and elsewhere in Europe, death sentences were carried out by professional executioners, specialists loathed by the public. In the colonies, no one wanted the job so the task fell to the local sheriff who often received a bonus for such duties. For example, in 1736, for “Executing a Person condemn’d,” Virginia sheriffs were to receive 250 pounds of tobacco. Maryland found it so difficult to appoint an executioner that the colony turned to a succession of criminals, each of whom was reprieved from a death sentence in exchange for agreeing to serve as hangman for a term of years or life. If something is so believed to be “right” why is it that no one wants to do it? Perhaps this is an ethical issue as well. Indeed, the American Medical Association prohibits its members from participating in executions in compliance with the Hippocratic oath to “do no harm.”
One of the primary managerial issues relating to the death penalty today is the cost. The length and complexity of a capital trial inevitably gave rise to difficult issues on appeal. Litigating a capital case through the courts normally took several years from start to finish. Because the defendant usually could not afford to pay a lawyer, everyone involved at every stage of the proceeding was being paid by the state – the prosecutors, the defense lawyers, the judges and other court employees, and even the expert witnesses need by both sides to explain the psychological and sometime neurological evidence presented at sentencing. The result is that the death penalty is very expensive, much more so even than sentencing murderers to prison, even accounting for all the costs of maintaining prisons and their residents. A study at Duke University found that the cost of capital punishment to the taxpayers of North Carolina – that is, the amount by which sentencing murderers to death exceeded the cost of housing them in prison for life – was more than $250,000 per death sentence and more than $2,000,000 per execution. The cost was similar in other states. Arizona has conducted at least 19 executions since 1977. Imagine what good could have been done with that $40 million dollars. Again, is executing people so important that we should bear this cost?
A third managerial issue falls on the shoulders of state governors, who have the power to grant pardons. This process is also known as commuting a sentence and is becoming rarer as trial lengths become longer. Pardons used to be a way for governors to overturn what was believed to be an unjust sentence, but today they are political. Former Missouri governor and current U.S. Attorney General John Ascroft said, “It would have been arrogant and irresponsible of me to second-guess the people and the court system by arbitrarily reversing the decision of unmistaken juries and judges.” This echoes the sentiments of many governors who don’t feel it’s their place to overturn what so many have worked to put into place. Of course, public opinion comes into play here. Governors who seek re-election will typically do whatever is called for by the collective opinion of their constituents. Since a majority of the public in the United States has always favored the use of the death penalty (regardless of geography or demographic), it would be political suicide to go against that. From a managerial standpoint, this makes perfect sense. For example, in the midst of his 1992 campaign, Bill Clinton made a point to return to Arkansas to sign the death warrant for Ricky Rector, a brain-damaged inmate so oblivious to his fate that he planned to save the dessert from his last meal to eat after his execution. Clearly Clinton knew the power the death penalty had at the polls.
Legal Issues
There are two kinds of arguments employed against the death penalty: procedural and substantive. Procedural arguments hold that the means by which capital punishment is imposed rendered it unconstitutional. By contrast, substantive arguments hold that the punishment is unconstitutional regardless of how it is administered.
Procedural Arguments
In 1972, the Court’s Furman v. Georgia decision brought executions to a halt when it found that death penalty statutes gave too much discretion to individual judges and to juries. Justice Potter Stewart had likened being executed to being struck by lightening to describe the process as being something impossible to predict. “Unpredictable” is not an adjective that the Court wanted used to describe the American criminal justice system. This resulted in statutes describing aggravating and mitigating circumstances that were meant to instruct the jury in regards to sentencing. In 1976’s Gregg v. Georgia, the Court upheld Georgia’s death penalty statute as constitutional and executions resumed.
One of the current procedural issues involves jury selection. It is typical that potential jurors who state that they oppose the death penalty be rejected. A procedural argument could claim that this makes the jury unrepresentative of the public and therefore a death sentence more likely. Our on-line discussion covered similar arguments in cases where a judge, not a jury, decides sentencing in capital cases. Another is the notion of due process. The execution of the innocent has already been mentioned in Ethical Issues, but there is a legal issue as well. If new evidence (e.g., DNA tests) comes to light that would exonerate the defendant, is that person being denied due process as a result of already being executed? Should the family of the defendant be able to sue the state (and win) for wrongful death?
For abolitionists, procedural arguments may provide a momentary reprieve while legislatures draw up new rules, but procedural arguments alone are unlikely to result in any permanent changes. The goal of procedural changes is to ensure fairness. While it is clear that there have been some obvious racial biases in handing out death sentences, these cannot necessarily be attributed to any procedural legal issues. However, considering that these biases do exist would it every be possible to ensure complete fairness in any criminal case?
Substantive Arguments
The most common argument against the death penalty is that it violates the Eight Amendment guarantee against infliction of “cruel and unusual punishments.” At the time of the writing of that amendment, Americans had the distinct but related senses of what was meant by “cruel and unusual.” The first is the sense of proportionality. Leviticus required punishment to be proportioned to the gravity of the offense, “eye for eye, tooth for tooth.” Therefore, disproportionate punishments could be considered “cruel and unusual.” The second considered “cruel and unusual” to mean anything not authorized by law. This means that Seinfeld’s “show about nothing” in which someone is sentenced to be his butler could fall into that category. The third meaning referred only to the methods of punishment. Regardless of the gravity of the crime, that is, and regardless of the legislature’s desires, there were certain ways of punishing crime that were so painful or otherwise oppressive as to be out of bounds. What, I ask, could be more oppressive than death?
“No Mortal, except the Sufferer, can form any adequate Conception of that Terror which seizes the Soul of Person doomed to suffer such an exquisitely shocking and shameful Death.”
The quote above is attributed to John Shearman while on the gallows prior to his own execution. The terror felt by the condemned on their way to their death is well documented. However, this alone has never been enough to deem execution as “cruel and unusual” and therefore prohibited by the Eighth Amendment. Why not? How many of us can truly say we know what it’s like to be absolutely convinced we are about to die? Few, if any. It’s interesting that we throw the word “cruel” around so often when describing the actions of criminals towards their victims, but never consider using it when describing our treatment of the condemned. If providing someone with a “last meal” and giving them their “last rites” before walking them to their death isn’t cruel, then I don’t know what is.
A Global Perspective
In 1958, when Jimmy Wilson (who was black) was sentenced to death in Alabama for robbing a white woman of $1.95 (that’s right, a sentence of death for the robbery of one dollar and ninety-five cents), the case was know around the world. The American embassy in London reported receiving six hundred letters of protest per day; another four hundred per day in Dublin. The American ambassador in the Hague received death threats in the event Wilson was executed. Alabama governor James Folsom called a press conference to announce that he was “snowed under” by more than three thousand letters he received in a single box from Toronto and finally commuted Wilson’s sentence.
Conclusion
In 1998, a representative of the United Nations Commission on Human Rights was sharply critical of several aspects of capital punishment in the United States and urged a moratorium on executions until reforms could be carried out. The following year, the Commission resolved that all nations should move toward abolishing the death penalty complete. That same year, there were 610 executions in the U.S. ensuring that the death penalty would continue to be an issue for many years to come.
References
My primary source of information for this paper was “The Death Penalty: An American History” by Stuart Banner. This book refers to many cases and contains a lot of statistics. In the interest of time, I decided not to track down the original sources. If you’re interested in learning more about the death penalty, I highly recommend this book. I also used references from my team’s first on-line discussion. Again, I decided not to track the sources assuming my teammates put forth the necessary due diligence.
