This was a final paper written for an Honors Seminar in college in 2012. I couldn’t find my final draft, so this is a draft, but I wanted to share it now, as we as a nation is grappling with racism and injustices in the US justice system. This was also written a year after brain surgery, so I was still having difficulty writing. So apologies in advance for my wordiness. Some statistics or facts may be inaccurate due to age. But the “sentiment” remains the same. (12/20/2012 HONR248H)
Table of Contents
Currently in the United States of America, there are 33 states, along with the U.S. Military and U.S. Government, which allow the death penalty. The rest of the states, along with the District of Columbia, have abolished the death penalty, at any time between 1853, in Wisconsin, to just this year, in Connecticut (Death Penalty Information Center, 2012). As of April 1, 2012, the United States has a total of 3,170 death row inmates, with the largest number of inmates in California (724), with the next largest in Florida (407), then Texas (308) (Death Penalty Information Center, 2012).
Since the death penalty was reinstated in 1976, Texas has executed a total of 492 inmates. The next highest rate of execution is Virginia, with 109 executions since 1976. In 2011, Texas executed 13 people, and in 2012, 15 people. Virginia executed 1 person in 2011, and none in 2012. The total number of people executed since the death penalty was reinstated in 1976 is 1320, with the peak at 98 inmates in 1999, with the numbers stalling in the low 40’s to low 50’s in the past 6 years (Death Penalty Information Center, 2012).
In theory, the death penalty is “reserved for only the most culpable offenders, regardless of the race of the defendant or victim” (Goodman, 2007). However, the death penalty in the United States, as it stands, is filled with deadly errors and problems that render it a cruel and unusual punishment.
While I support the death penalty for the most heinous, dreadful, deadly, and cruel crimes in the “abstract” sense, I cannot support the system that is so riddled with errors (the national “overall error-rate” in capital punishment system between 1973 and 1995 in the United States is 68%), racism (one is 3 times more likely to be sentenced to death if he killed a white person over a black person, and 4 times more likely to be sentenced to death if he killed a white person over a Hispanic person), and impracticality (only 5.4% of people on death row actually get executed) (Death Penalty Information Center, 2012) (Liebman, Fagan & West, 2000).
I find the capital punishment system of the United States to be unethical and inhumane, especially when the statistic that 7% of those who are sentenced to death are found to be innocent of the death penalty crime, and 82% of the people “whose capital judgments were overturned by state post-conviction courts due to serious error were found to deserve a sentence less than death when the errors were cured on retrial” (Liebman, Fagan & West, 2000).
History of Executions in the United States
The first recorded execution in the United States was that of Captain George Kendall in Jamestown, Virginia for being a spy for Spain, which occurred in 1608. In 1612, the “Divine, Moral and Martial Laws” was instated in Virginia by Governor Sir Thomas Dale, and within its pages, one could be executed for stealing grapes, killing chickens, and trading with Indians (Death Penalty Information Center, 2012). Aside from executions, historically, the United States, before and after it became a nation, is infamous for its lynching, in the 1770’s, of the Loyalists, and further along, around the time of the Civil War onwards, of the African Americans.
The abolitionist movement began fairly early, in the late 1770’s, with its inspiration from the writings of Montesquieu, Voltaire, Bentham, John Bellers, John Howard, and Cesare Beccaria (Death Penalty Information Center, 2012). Cesare Beccaria’s essay, “On Crimes and Punishment” (1767), which theorized that “there was no justification for the state’s taking of a life” was especially influential to the early Americans. Thomas Jefferson introduced a bill to revise Virginia’s death penalty laws, which proposed that the death penalty only be used for murder and treason (defeated by 1 vote), and Dr. Benjamin Rush, one of the signers of the Declaration of Independence and the founder of Pennsylvania Prison Society, challenged the notion that the death penalty serves as a deterrent, and believed that it instead had the “Brutalization Effect,” serving to increase criminal conduct within the people. Dr. Rush gained support of Benjamin Franklin and William Bradford, Philadelphia’s Attorney General (later U.S. Attorney General), who led Pennsylvania to “become the first state to consider degrees of murder based on culpability.” In 1794, the state repealed the death penalty for all offenses except for first degree murder (Death Penalty Information Center, 2012).
By the early to mid-19th century, the abolitionist movement had gained momentum in the North East, with many states reducing the number of capital crimes and building state penitentiaries. In 1834, Pennsylvania became the first state to carry out executions inside correctional facilities instead of out in public, and in 1846, Michigan became the first state to abolish the death penalty for all crimes except for treason, and later on, Rhode Island and Wisconsin abolished the death penalty for all crimes. By 1963, all mandatory capital punishment laws were abolished in the nation, with the exception of “small number of rarely committed crimes in a few jurisdictions” (Death Penalty Information Center, 2012). By the end of 1960’s, 40 of the states had laws authorizing the death penalty, but strong oppositions caused an “unofficial moratorium” on executions for several years, with the last one taking place in 1967. Prior to this moratorium, there was an average of 130 executions per year in the United States (Green, 2012).
On June 29th, 1972, the Supreme Court denounced the death penalty as unconstitutional, effectively halting executions for more than 600 death row inmates in the nation (Green, 2012). The case was comprised of three separate cases; Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas, and known by the frontrunner case, as Furman v. Georgia (408 U.S. 238). Furman challenge was brought under the Eighth Amendment, arguing that “capital cases resulted in arbitrary and capricious sentencing,” and the Supreme Court ruled that a punishment is “cruel and unusual” if it is “too severe for the crime,” “arbitrary,” “offended society’s sense of justice,” or “not more effective than a less severe penalty” (Death Penalty Information Center, 2012). By vote of 5 to 4, the Supreme Court held that Georgia’s death penalty statute “could result in arbitrary sentencing,” and to give the death penalty under such a statute was “cruel and unusual,” which violated the Eighth Amendment, as well as violating the Fourteenth Amendment’s guarantee of due process (Death Penalty Information Center, 2012) (Green, 2012).
In Woodson v. North Carolina and Roberts v. Louisiana (both in 1976), mandatory death penalty for specific crimes were declared unconstitutional, which directly led to the invalidation of mandatory death penalty statutes in 21 states and modification of hundreds of death row inmates’ sentences to life in prison (Green, 2012). The Supreme Court declared that the death penalty for rape cases was unconstitutional in Croker v. Georgia (1977), because the sentence was disproportionate to the crime, and that “sentencing authority in a capital case must consider every possible mitigating factor to the crime rather than limiting… the mitigating factors that could be considered to a specific list” in Lockett v. Ohio (1978), removing many inmates from death rows around the country (Green, 2012).
Many states began to revise legislations to satisfy the Supreme Court’s objections to arbitrary imposition of death sentences. Statues validated by the Supreme Court in Georgia, Texas, and Florida “afforded sentencing courts the discretion to impose death sentences for specified crimes” and provided for bifurcated trials, involving the determination of the defendant’s guilt or innocence in the first stage, and in the second, the determination of the sentence after considering the aggravating and mitigating circumstances.
In Georgia and Texas, the second stage’s decision rested with the jury, and in Florida, the final sentencing decision rested with the judge (Green, 2012). Many states also altered the mandatory death penalty laws after the lawsuits in 1976 declared them unconstitutional. The first execution under the new capital punishment laws occurred on January 17, 1977, with the execution by firing squad of Gary Gilmore, a convicted murderer. Between 1977 and 1997, 432 executions took place, with 74 of them occurring in 1997 (Green, 2012). As of December 2012, there are 33 death penalty states in the United States.
According to a survey conducted of the former and present presidents of the nation’s top academic criminological societies, only 5% of the experts accepted the notion that the death penalty is a deterrent to murder (Radelet & Lacock, 2009). States without the death penalty generally have lower murder rates than states that do have it, and Austin Fletcher, professor of philosophy in Tufts University stated that “vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence” (Michigan State University Comm Tech Lab & Death Penalty Information Center, 2000) (Fletcher, 1997).
Race and the Death Penalty
It may almost be a little too naive to assume that racism does not take a huge part in the corruption of the death penalty system when 98% of the chief district attorneys are white in death penalty states (Death Penalty Information Center, 2012). There are two main types of racism that are most prominent in the death penalty system: “race-to-victim discrimination,” and “race-of-defendant discrimination.” Race-of-victim discrimination expresses racism that occurs when the death sentence is impacted by the victim’s race. Between 1976 and 2007, there were 621 white inmates and 370 black inmates executed, and 80% of the victims were white, though blacks and whites are victimized in approximately equal numbers (Goodman, 2007).
Race-of-defendant discrimination expresses racism that occurs when the capital punishment sentencing is influenced by the defendant’s race. This racism can be observed in the fact that of death row inmates, 43% are white and 42% are black, regardless of the fact that African Americans constitute only 12.6% of the US population, where as whites make up over 72% of the population (Goodman, 2007) (U.S. Census Bureau, 2010). Amongst people executed for interracial murders, 257 black defendants were executed for murdering a white victim, whereas only 19 white defendants were executed for murdering a black victim. When an African American and a Caucasian defendant are both guilty of “heinous murders involving similar aggravating and mitigating circumstances,” their “deathworthiness” should not differ based on their own races or the races of their victims (Goodman, 2007).
However, in McClenskey v. Kemp in 1987, a black defendant cited the Baldus study to make his claim that had his victim been black, the jury would more likely than not have spared his life. The study demonstrated that “blacks who kill whites are sentenced to death ‘at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks” (Blackmun, 1994). Even in the 21st century, studies showed that in Louisiana, odds of getting the death penalty for a white victim over a black victim was 97% higher, in California, more than three times higher, and in North Carolina, 3.5 times higher (Death Penalty Information Center).
California is commonly regarded as the “progressive,” often the forerunner in political and societal progress, such controversial topics as gay rights. However, looking at the state of their death penalty system, it is difficult to see the state in its progressive light. California has the largest death row population in the country. In 2005, its population was 77% white and 6.7% African American. However, statistically, between 1990 and 1997, defendants who were accused of killing whites were more than 3 times as likely to be given the death sentence than those who killed blacks, and 80% of executions in California between 1990 and 1999 were for murders of whites, even though only 28% of murder victims in the state between that time period were white (Goodman, 2007).
Even in Maryland, racism was apparent when statistics were computed. The race of the victim played a “substantial role in whether or not prosecutors sought the death penalty,” and the study commissioned by Maryland’s governor in 2000 concluded that black defendants who killed whites were 2.5 times more likely to be sentenced to death than whites who killed other whites, and 3.5 times more likely to be given the death penalty than black defendants who murdered blacks (Goodman, 2007). In a study conducted by David Baldus and his colleagues using death penalty data in Georgia, they found that black defendants convicted of murdering whites were sentenced to death 22% of the time, and those convicted of murdering blacks were sentenced to death only 1% of the time (Cornell University, 2010).
Clearly, racism is still an extremely important and deadly fiend even still in the death penalty system around the nation. Seemingly, the “worst” thing an African American man could do to almost secure himself a death penalty trial, and maybe even a death penalty sentencing, in this nation is to murder a white young woman. Whether a young, charitable young person should be weighed more heavily than an abusive man with 5 felonies in terms of victim weighing could be debated, depending on the viewpoints of a person, but a person’s race should not be one of the largest contributing factors (that are sometimes weighed more heavily than the official “mitigating factors”) to the decision of whether or not a person is condemned to death or life.
Fixing the Error
For a reversal of the death penalty to happen, the error found must be extremely serious. Some of the most common ones are “egregiously incompetent defense lawyers who didn’t even look for- and demonstrably missed– important evidence that the defendant was innocent or did not deserve to die,” and “police or prosecutors who did discover that kind of evidence but suppressed it” (emphases in original), keeping the information from the jury in order to facilitate a death penalty conviction (Liebman, Fagan & West, 2000).
Even given that error must be extremely severe for a reversal to happen, in the study commissioned by the Chair of the U.S. Senate Committee on the Judiciary titled “A Broken System: Error Rates in Capital Cases, 1973-1995” by James S. Liebman, Jeffrey Fagan, and Valerie West, the researchers found that the overall rate of prejudicial error in the American capital punishment system was 68%. In their words, “courts found serious, reversible error in nearly 7 of every 10 of the thousands of capital sentences that were fully reviewed during the period” (Liebman, Fagan & West, 2000).
According to their study, 47% of death sentences that were thrown out by state courts due to serious flaws, and in 40% of the remaining sentences, federal review found “serious error,” which is defined as “error undermining the reliability of the outcome” (Liebman, Fagan & West, 2000). State judges overturned out 90% of the death sentences (2,370). Many of the same judges were the ones who imposed the death penalty sentence in the first place (Liebman, Fagan & West, 2000).
When errors were cured on retrial, 82% of death row inmates whose sentencing were overturned by state post-conviction courts were found to “deserve a sentence less than death,” and 7% were found to be innocent of the capital crime (Liebman, Fagan & West, 2000). Three-fifth of the death penalty states have error rates of 70% or higher, and because of the necessity to go through lengthy review procedures necessary to uncover the errors, the average number of years between the sentencing and the last inspection and execution is 10.6 years. And in most cases, after years of spending gut wrenchingly insecure time in death row, their death sentences are more likely than not reversed (Liebman, Fagan & West, 2000).
The detrimental effects of overworked, understaffed, court-appointed lawyers dealing with dozens of life changing cases is well known, including death penalty cases. In the case of Abu-Ali Abdur’Rahman, the precise fact that his highly competent lawyer was so overworked was the reason why he is still on death row, quarter of a decade after his conviction for a murder he very likely did not commit (Curriden, 2011). The lawyer was always in debt despite his excellent history in law because he had problems collecting fees, and by the time he took on the death penalty case of Abdur’Rahman, he had gone for several years without a single day of vacation in an attempt to alleviate his financial situation (Curriden, 2011). Many lawyers are overworked, not competent, and/or unequipped to handle a death penalty case, with the law enforcement many times siding with the prosecutor, and deliberately holding back evidence, or refusing access to key evidences.
Aside from the errors committed within the courtroom for whatever reasons, another huge problem is the fact that juries often do not understand their states’ laws regarding the definition of “life in prison.” Judges are not allowed to tell the questioning juries what their states’ policies on the definition of a life sentence are, such as whether “life sentence” means natural life, life with parole, life without parole, or if there is no life without parole, what the parole period is (Dieter, 1993).
When alternative sentencing is presented, support for the death penalty drops below 50%, suggesting that if the jury were more educated about what the exact definitions are for the alternative sentencing are, and could understand that the convicted murderer was not going to be roaming free after 8 years, they may choose the alternative sentencing over the death penalty (Dieter, 1993). Support for the death penalty drops by 21% when even sentence of life with no parole for 25 years is considered, and if restitution is added to the requirement, by 33%. The sentence of “life without parole plus restitution” causes support to drop 36% from the initial 77% support for the death penalty in an abstract sense (Dieter, 1993).
According to a study by a professor in Amherst College, 270 of the death penalties carried out between 1900 and 2011 in the United States were “botched,” bringing the rate of error in carrying out the death penalty to be about 3%. Some of the “departures from protocol” that the professor discussed included, amongst other things, inmates catching on fire while being electrocuted, being strangled to death (instead of their necks being broken), and incorrect dosages of drugs being given for lethal injections (Amherst College, 2012). More surprising is the media’s portrayal of these “botched executions,” which the professor says were “used to sell newspapers and nothing else,” with “little criticism of the process or questioning of the death penalty itself” despite the gruesomeness of the proceedings, and reporters wrote “sensational” and “recuperative” (inmates did not suffer, and justice was served) articles (Sarat, Jones, Sprung-Keyser, Blumstein, Richard & Weaver, 2012).
Many times, especially in the early 1900’s, newspapers did not “just publish articles about executions in vivid, morbid detail; they often made accounts more shocking by deliberately changing the facts” (Amherst College, 2012). Nevertheless, there were no backlashes from the public. The death penalty could be considered “cruel and unusual punishment” if 3% of its executed population go through torturous ends because of errors.
Aside from the inequality based on racism or elsewise, there is also the issue of the death penalty not being doled out in a systematic, equal way. There are “death penalty happy states,” such as Texas, which executed 15 death row inmates in 2012 to bring the total to 492, and Virginia and Oklahoma, which have executed a little over 100 inmates each, and then are more cautious states, such as New Mexico, Colorado, Wyoming, and Connecticut, which have only executed 1 prisoner since 1976, and none in the past 2 years (Death Penalty Information Center, 2012). There are states that give the death penalty sentencing, but then not actually execute its death row inmates.
Then there are states that do not even allow the death penalty, so no matter what the crime, the maximum a prisoner can get is life in prison without parole, or in some instances, just life in prison with possibility of parole. For the same crime, depending on which kind of a state the defendant is tried in, he could be executed, put on death row until dead, given life in prison, given life without parole, or some other sentence. And in any of the death penalty sentencing, there is a very high chance that the case will be overturned due to error, or in the worst cases, not overturned, the executions actually go through, and innocent men are executed.
Advocating for and Against the Death Penalty
There are many reasons that death penalty advocates used to back up their support for the punishment. One of the arguments for the death penalty is that it serves as a deterrent for would-be mass murderers. It is not very clear whether the death penalty is a deterrent for mass murders, when only 5% of death penalty convictions result in executions, and many people who do murder people in a killing spree also kill themselves in the process, so they are seemingly not very concerned with the concept of dying themselves. According to John Horgan, “more than a century of research in the United States and other countries . . . has produced no evidence that capital punishment reduces the rate of murder or other violent crime” (1990). William Bowers of Northeastern University stands by the “Brutalization Effect,” first brought up by Dr. Benjamin Rush, a signer of the Declaration of Independence and founder of the Pennsylvania Prison Society (Death Penalty Information Center, 2012). The “Brutalization Effect” holds that “society is brutalized by the use of the death penalty, and this increases the likelihood of more murder” rather than to deter violence (Michigan State University Comm Tech Lab & Death Penalty Information Center, 2000).
Another argument in support of the death penalty is that the citizens of the United States overwhelmingly support it. In 1966, majority of Americans had opposed the death penalty than favored it, and so executions were halted in 1967. It resumed after a decade, when support for the death penalty had gone up again. Today, “support for the death penalty drops precisely to the same low percentage as in 1966 when people are given the choice of stringent alternative sentences,” such as “life in prison without parole,” and “life without parole plus restitution” (Dieter, 1993). According to a national poll conducted by Greenberg/Lake and Tarrance Group in 1993, though a majority said that they favored the capital punishment abstractly, when given the choice of life without parole, coupled with restitution, 44% of the people surveyed favored the alternative, whereas only 41% favored the death penalty.
Abstractly, 77% of the population polled supported the death penalty. However, the support dropped to 56% when the alternative of no parole for 25 years was introduced, and for no parole, the support dropped to 49%. When the alternative of “no parole for 25 years plus restitution” was introduced, support dropped to 44%, and for “no parole ever plus restitution” was presented as the alternative, as mentioned above, the support dropped to 41%. One theory on why people are willing to turn to alternative sentencing even when they abstractly support the death penalty is that they have serious doubts about the problems of the death penalty system. Some of the factors that contribute to the doubts are racism (48%), high costs (46%), lack of deterrent effects (42%), and prospect of innocent people being executed (58%) (Dieter, 1993).
Many people bring up retribution and the victims and their family into their call for support of the death penalty. They state that the death penalty will bring closure to the victims’ families, and it is just retribution for the crimes the convicted committed. However, there are many flaws to this statement. One of the most important things to consider is that many victims’ families have stated that the whole concept of murdering another person to avenge for the death of their loved one tarnishes their memories of the family member. Statistically, in a nation where there are 25,000 murders a year, but only 25 executions a year, only 1 in a 1,000 families receive the “closure” of a death penalty being carried out (Dieter, 1993). One mother of a kidnapped and murdered 7 year old girl stated that “The death penalty causes family members more pain than other sentences.
The continuous sequence of courtroom scenes inherent in death penalty cases only serve to keep emotional wounds raw and in pain for years” (Dieter, 1993). The mother, Marietta Jaeger, continues on to say that, “Actually, the memory of the victim is grossly insulted by the premise that the death of one malfunctioning person will be a just retribution for the inestimable loss of the beloved,” adding that because her daughter had been such a gift of “joy and sweetness and beauty,” to kill someone in her name would have been a violation of “the goodness of her life,” which she founds extremely offensive and repulsive (Dieter, 1993). The “National Organization of Parents of Murdered Children, Inc.” provides “support and assistance to all survivors of homicide victims while working to create a world free of murder” (Parents of Murdered Children, 2012). The director, Odine Stern, reiterated the sentiment that no sentence can ever “equate to the loss of your child’s life and the horrors of murder,” and frequently, the victims’ families “recognize that the death penalty will inflict the same pain they have felt on the accused’s family (Dieter, 1993).
With the devastating error rate of the death penalty sentence convictions, there is an extremely high chance that an innocent man is sentenced for execution. “Murder Victims’ Families for Reconciliation” is another organization which deals with families of murder victims, and they advocate the theme of “moving from violence to healing,” and as an organization, are opposed to the death penalty (Murder Victims’ Families for Reconciliation, 2012). They hold that life sentence without parole “can ease the pain much sooner and enable the victim’s family to begin the process of healing” (Payton, 1987).
Before preaching for the upholding of the quotation, “An eye for an eye,” cited in the Bible in Matthew 5:38, originally from the Code of Hammurabi, we must also take into account biographer Louis Fischer’s explanation of Mohandas Gandhi’s philosophy, “An eye for an eye will leave everyone blind” (Martin, 2012) (O’Toole, 2010). Capital crimes, generally, are not as easy as gorging an eye out for a gorged eye. Many times, they are tortured, kidnapped, and murdered children, or multiple gruesome deaths. How are we to give a “just retribution” for the crime that was committed? Take away the defendant’s children, and torture and murder them in front of the defendant? Murder his loved ones as he had murdered his alleged victims? As a “civilized” society, we are not entitled to such actions. Is the life of a man who has chosen to commit heinous crimes worth the multiple innocent lives that were lost in his hands? How then is it that the death penalty is a “just retribution” for multiple deaths? Killing the person who killed the others will not bring the victims back, and in reality, brings another family and set of loved ones with a murdered family member.
This whole concept is aggravated by the fact that more than half of the death penalty convictions are overturned due to serious flaws, and 7% of the convicted prisoners are found to be completely innocent of the capital crime they were convicted for. In short, the man being executed could very well just be another completely random victim, and the wave of death and pain only increases. While I was mulling over this paper on Twitter, a follower of mine commented that she does not agree with the death penalty, because her friend’s father was convicted and executed for a crime he did not commit, which was cleared after his death. He had numerous witnesses that expressed his innocence, but according to her, “It only takes one person to say he was there.”
The fact that the chance of a convicted death row inmate could be innocent is higher than the actual number of death row inmates executed (7% to a little over 5%) should be an indication that there is something severely flawed with the system that doles out the strictest punishment in the nation in such an arbitrary way. Eddings v. Oklahoma (1982) stated that the death penalty “must be imposed ‘fairly, and with reasonable consistency, or not at all.’” The death penalty in the United States, as it stands, is not imposed fairly or consistently, and therefore, it is inevitable that it must not be imposed at all (Blackmun, 1994).
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