Executions are legal in 59 countries; the United States is one of them. Executions are legal in 36 states, one of which is Indiana. It's pointless to debate the morality of the death penalty: arguments about personal belief and individual opinion are unresolvable through discussion. Instead, it makes sense to assess the merits of the death penalty in terms of public policy. Is capital punishment sound public policy?
The death penalty is expensive. According to Chris Hitz-Bradley, an Indianapolis attorney and president of the Indiana Information Center to Abolish Capital Punishment (IICACP), writing in the Indiana Abolitionist, "The cost of just the initial trial and appeal of a capital case [in Indiana] is estimated at $300,000 to $500,000. The state's economists" he goes on to say, "have estimated that 'the cost of this first phase of a capital case is 1/3 more than a case of life without parole.'"
Hitz-Bradley also points out, "The cumulative cost of all the various phases of a death penalty case can easily mount to" $1-2 million. The reason is the extensive appeals process in Indiana. Besides the initial appeal and request for the U.S. Supreme Court to consider a case, the two remaining phases of a capital trial -- state post-conviction and federal habeus corpus -- add to the costs.
"Almost everyone on death row is poor."
In one capital case in Indiana, just the transcript of the original trial needed during the appeal process cost $92,000. No matter what county they reside in, Hoosiers end up paying for a huge amount of the costs of a death penalty case. In the Hoosier state and the nation as a whole, it costs less to maintain inmates in prison for whole lifetimes than it does to execute them.
The death penalty is racist. A Maryland commission studying the death penalty in that state found that although two-thirds of murder victims in Maryland are African Americans, all five people the state has executed in the last 30 years lost their lives for killing whites. The five people currently on death row in Maryland all victimized whites. According to the Washington Post, "More prosecutors are likely to seek execution, and juries to sentence people to death row, when whites are killed."
As Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, says of capital cases, "There are too many incidences of people of color, both defendants and victims, being treated more harshly, and dealt with as if they were expendable."
The death penalty is elitist. Almost everyone on death row is poor. The poor cannot afford private attorneys and have to rely on public defenders, who often are not well-trained or experienced in capital cases. As Kerry Max Cook noted after spending two decades on death row in Texas for a crime he didn't commit, "[I]t's not necessarily the color of a person's skin that determines who gets the death penalty and who doesn't; it's the color of money. It's wealth that determines who gets Saks Fifth Avenue justice and who suffers Wal-Mart justice."
"The death penalty system is inherently arbitrary from its very beginning."
- Chris Hitz-Bradley
IICACP
Innocent people have been executed and will continue to be. The absence of DNA evidence, which is scientific and conclusive, in the majority of homicide cases creates the possibility of executing the innocent. Seven years ago U.S. District Court Judge Michael Ponsor wrote in the Boston Globe after presiding over the first death penalty case in Massachusetts in several decades, "The experience left me with one unavoidable conclusion: that a legal regime relying on the death penalty will inevitably execute innocent people. ... Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time. Any honest proponent of capital punishment must face this fact."
Geographic discrepancies cause inherent randomness and bias in the application of the death penalty. Prosecutors in some geographic areas are more likely to seek a death sentence than are those in other areas within the same state. As Hitz-Bradley points out, "The death penalty system is inherently arbitrary from its very beginning. The decision to request the death penalty is completely in the hands of one person: the elected prosecutor for the county. Each prosecutor brings a different standard to the job; each prosecutor views the death penalty differently."
A murder conviction usually depends heavily upon the testimony of a codefendant or cell mate. In both cases that person receives a reduced sentence for testifying against the person the prosecutor determines is the most responsible for the murder. Under the circumstances, the temptation to give false testimony is strong.
Contrary to what some death penalty advocates claim, there is no evidence that the threat of the death penalty deters anyone from committing murder. Capital punishment doesn't bring "closure" to victims' families, either: the appeals process can drag on for more than 20 years.
Plainly, the death penalty is unsound public policy, but progress is being made. A life sentence absolutely without parole and until the convicted dies is becoming a new option, and juries are increasingly choosing it when it's available. As Hitz-Bradley points out, "A life sentence without parole ensures the safety of our families and communities. ... It would make more sense ... if money that would be spent seeking the death penalty were used to provide counseling and other assistance to victims' families."
"Innocent people have been executed and will continue to be."
Since the U.S. Supreme Court ruled in 1976 that executions could resume, more than 130 people have been freed from death row because they didn't commit the crimes they were scheduled to die for. What's more, keeping inmates alive makes it possible to exonerate them if new evidence surfaces, DNA or otherwise, to prove their innocence. In Indiana, 61 percent of sentences in capital cases have been reversed.
More good news is that public support for the death penalty in the United States has declined in recent years. On Dec. 11, the Death Penalty Information Center (DPIC) released a report stating that 37 people were executed in 2008, the lowest number in 14 years, which coincides with a decrease in juries dictating death sentences.
The report estimates that 111 people will receive a death sentence this year, the lowest number since 1976. Only 37 people were executed in 2008, as opposed to 98 in 1999.
Furthermore, the number of death sentences in the country has fallen since the mid-1990s, when states began passing legislation making it easier for prosecutors to opt for life in prison without parole instead of death. The decline stems, in part, from an unofficial Supreme Court moratorium on executions in January-April of this year and from the nation's economic problems.
According to Richard Dieter, executive director of DPIC, "Courts, legislatures and the public are increasingly skeptical about the death penalty, whether those concerns are based on innocence, inadequate legal representation, costs, or a general feeling that the system isn't fair or accurate."
"More prosecutors are likely to seek execution, and juries to sentence people to death row, when whites are killed."
- Washington Post
We can see the trend in Indiana, where the death penalty is gradually being "chipped away," in the words of Monroe County judge Theresa Harper.
Jessie Cook, a capital attorney with an office in Terre Haute, attributes this trend to two phenomena. One is the innocence movement, which has brought to light the conviction of people who have been sentenced to death for crimes they didn't commit. The exonerations that have resulted have dampened state prosecutors' enthusiasm for seeking death sentences. The other phenomenon is costs. The Indiana Supreme Court has issued Rule 24, which sets the standard for death penalty cases in the state.
Rule 24 stipulates that a death penalty case must include support services for the defense, among them expert witnesses -- psychologists, pathologists, ballistic experts and so forth. It requires special training and experience for defense and appellate attorneys, and it also mandates investigative support services for the defense attorneys in the form of people who check facts, uncover mitigating circumstances and the like. All of that costs money, and counties just don't have the funds, especially today.
Life without parole has its drawbacks. Warehousing people for the rest of their lives doesn't represent a lot of progress beyond eliminating capital punishment. Europeans assume that every criminal can be rehabilitated and rejoin society. Life sentences don't exist in Europe. But that's another story.
The IICACP and its member organizations, including the Bloomington Coalition to Abolish the Death Penalty, are grassroots organizations that strive to abolish the death penalty in Indiana. Indiana state legislators are not poised to repeal the death penalty in the near future, but convincing them to do so is one of the ongoing projects of citizens' abolitionist organizations.
In 2007 New Jersey became the latest state to abolish the death penalty. It would be sound policy for Indiana to follow suit without delay.
Linda Greene is a local activist and writer who can be reached at lgreene@bloomington.in.us.
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The Death Penalty in the US: A Review
Dudley Sharp, Justice Matters, contact info below
NOTE: Detailed review of any of the below topics, or others, is available upon request
In this brief format, the reality of the death penalty in the United States, is presented, with the hope that the media, public policy makers and others will make an effort to present a balanced view on this sanction.
Innocence Issues
Death Penalty opponents have proclaimed that 130 inmates have been "released from death row with evidence of their innocence", in the US, since the modern death penalty era began, post Furman v Georgia (1972).
The number is a fraud.
Those opponents have intentionally included both the factually innocent (the "I truly had nothing to do with the murder" cases) and the legally innocent (the "I got off because of legal errors" cases), thereby fraudulently raising the "innocent" numbers. This is easily confirmed by fact checking.
Death penalty opponents claim that 24 such innocence cases are in Florida. The Florida Commission on Capital Cases found that 4 of those 24 MIGHT be innocent -- an 83% error rate in for the claims of death penalty opponents. Other studies show their error rate to be about 70%. The totality of reviews points to an 80% error/fraud rate in these claims, or about 26 cases - a 0.3% actual guilt error rate for the nearly 8000 sentenced to death since 1973.
The actual innocents were all freed.
It is often claimed that 23 innocents have been executed in the US since 1900. Nonsense. Even the authors of that "23 innocents executed" study proclaimed "We agree with our critics, we never proved those (23) executed to be innocent; we never claimed that we had." While no one would claim that an innocent has never been executed, there is no proof of an innocent executed in the US, at least since 1900.
No one disputes that innocents are found guilty, within all countries. However, when scrutinizing death penalty opponents claims, we find that when reviewing the accuracy of verdicts and the post conviction thoroughness of discovering those actually innocent incarcerated, that the US death penalty process may be one of the most accurate criminal justice sanctions in the world.
Under real world scenarios, not executing murderers will always put many more innocents at risk, than will ever be put at risk of execution.
Deterrence Issues
16 recent US studies, inclusive of their defenses, find a deterrent effect of the death penalty.
All the studies which have not found a deterrent effect of the death penalty have refused to say that it does not deter some. The studies finding for deterrence state such. Confusion arises when people think that a simple comparison of murder rates and executions, or the lack thereof, can tell the tale of deterrence. It cannot.
Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware. Many factors are involved in such evaluations. Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction -- execution -- deterred none. No one is foolish enough to suggest that the potential for negative consequences does not deter the behavior of some. Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.
Racial issues
White murderers are twice as likely to be executed in the US as are black murderers and are executed, on average, 12 months more quickly than are black death row inmates.
It is often stated that it is the race of the victim which decides who is prosecuted in death penalty cases. Although blacks and whites make up about an equal number of murder victims, capital cases are 6 times more likely to involve white victim murders than black victim murders. This, so the logic goes, is proof that the US only cares about white victims.
Hardly. Only capital murders, not all murders, are subject to a capital indictment. Generally, a capital murder is limited to murders plus secondary aggravating factors, such as murders involving burglary, carjacking, rape, and additional murders, such as police murders, serial and multiple murders. White victims are, overwhelmingly, the victims under those circumstances, in ratios nearly identical to the cases found on death row.
Any other racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system, as confirmed by studies from the Rand Corporation (1991), Smith College (1994), U of Maryland (2002), New Jersey Supreme Court (2003) and by a view of criminal justice statistics, within a framework of the secondary aggravating factors necessary for capital indictments.
Class issues
No one disputes that wealthier defendants can hire better lawyers and, therefore, should have a legal advantage over their poorer counterparts. The US has executed about 0.15% of all murderers since new death penalty statutes were enacted in 1973. Is there evidence that wealthier capital murderers are less likely to be executed than their poorer ilk, based upon the proportion of capital murders committed by different those different economic groups? Not to my knowledge.
Arbitrary and capricious
About 10% of all murders within the US might qualify for a death penalty eligible trial. That would be about 64,000 murders since 1973. We have sentenced 8000 murderers to death since then, or 13% of those eligible. I doubt that there is any other crime which receives a higher percentage of maximum sentences, when mandatory sentences are not available. Based upon that, as well as pre trial, trial, appellate and clemency/commutation realities, the US death penalty is likely the least arbitrary and capricious criminal sanctions in the US.
Christianity and the death penalty
The two most authoritative New Testament scholars, Saints Augustine and Aquinas, provide substantial biblical and theological support for the death penalty. Even the most well known anti death penalty personality in the US, Sister Helen Prejean, author of Dead Man Walking, states that "It is abundantly clear that the Bible depicts murder as a capital crime for which death is considered the appropriate punishment, and one is hard pressed to find a biblical 'proof text' in either the Hebrew Testament or the New Testament which unequivocally refutes this. Even Jesus' admonition 'Let him without sin cast the first stone,' when He was asked the appropriate punishment for an adulteress (John 8:7) -- the Mosaic Law prescribed death -- should be read in its proper context. This passage is an 'entrapment' story, which sought to show Jesus' wisdom in besting His adversaries. It is not an ethical pronouncement about capital punishment." A thorough review of Pope John Paul II's position, reflects a reasoning that should be recommending more executions.
Cost Issues
All studies finding the death penalty to be more expensive than life without parole exclude important factors, such as (1) geriatric care costs, recently found to be $69,0000/yr/inmate, (2) the death penalty cost benefit of providing for plea bargains to a maximum life sentence, a huge cost savings to the state, (3) the death penalty cost benefit of both enhanced deterrence and enhanced incapacitation, at $5 million per innocent life spared, and, furthermore, (4) many of the alleged cost comparison studies are highly deceptive.
Polling data
76% of Americans find that we should impose the death penalty more or that we impose it about right (Gallup, May 2006 - 51% that we should impose it more, 25% that we impose it about right)
71% find capital punishment morally acceptable - that was the highest percentage answer for all questions (Gallup, April 2006, moral values poll). In May, 2007, the percentage dropped to 66%, still the highest percentage answer, with 27% opposed. (Gallup, 5/29/07)
81% of the American people supported the execution of Timothy McVeigh, with only 16% opposed. "(T)his view appears to be the consensus of all major groups in society, including men, women, whites, nonwhites, "liberals" and "conservatives." (Gallup 5/2/01).
81% of Connecticut citizens supported the execution of serial rapist/murderer Michael Ross (Jan 2005).
While 81% gave specific case support for Timothy McVeigh's execution, Gallup also showed a 65% support AT THE SAME TIME when asked a general "do you support capital punishment for murderers?" question. (Gallup, 6/10/01).
22% of those supporting McVeigh's execution are, generally, against the death penalty (Gallup 5/02/01). That means that about half of those who say they oppose the death penalty, with the general question, actually support the death penalty under specific circumstances, just as it is imposed, judicially.
Further supporting the higher rates for specific cases, is this, from the French daily Le Monde December 2006 (1): Percentage of respondents in favor of executing Saddam Hussein:USA: 82%; Great Britain: 69%; France: 58%; Germany: 53%; Spain: 51%; Italy: 46%
Death penalty support is much deeper and much wider than we are often led to believe, with 50% of those who say they, generally, oppose the death penalty actually supporting it under specific circumstances, resulting in 80% death penalty support in the US, as recently as December 2006.
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Whatever your feelings are toward the death penalty, a fair accounting of how it is applied should be demanded.
copyright 1998-2008 Dudley Sharp
Permission for distribution of this document, in whole or in part, is approved with proper attribution.
Dudley Sharp, Justice Matters