What’s to be done with the death penalty?

August 13, 2005

Guest Post by Morbo

I’m not really a fan of Supreme Court justices popping off on controversial issues of the day in forums outside the court. As far as I’m concerned, they should keep their big mouths shut until it’s to write an opinion or dissent.

However, Supreme Court Justice John Paul Stevens isn’t listening to me. Recently, he addressed the American Bar Association on the topic of the death penalty. Stevens cited “serious flaws” in our country’s application of the death penalty, noting that DNA evidence has resulted in several death-row inmates being exonerated. “A substantial number of death sentences have been imposed erroneously,” he said.

I have to confession to make: I was once a pro-death penalty liberal. My stance was borne partly from a mixture of pragmatism and frustration. After the Bush-Dukakis race of 1988, I was angry that the Democrats were perceived as weak on crime. I believed that embracing the death penalty would address that problem. It certainly defused the issue for Bill Clinton in 1992.

Two things led to my change of heart: one, seeing statistical evidence showing the disparity of application of the death penalty between white offender and black offenders; and two, the realization that significant numbers of people sitting on death row didn’t do the crime.

The spate of DNA-led exonerations seriously unnerved me. (To learn more about this, visit the Innocence Project, run by students at Cardozo School of Law at Yeshiva University. Most of the ex-inmates on this site were not charged capital crimes, but it’s staggering to see the sheer numbers of people exonerated by DNA evidence, often after spending years behind bars.)

It was only later that a friend challenged me to consider the moral dimension of the death penalty. He did it by forcing me to defend the position that the state has a right to take a life. I found I could not do it.

Yet it seems that this moral dimension continues to elude many Americans. Human beings are capable of great depravity; they can commit heinous crimes. A moral argument is quickly buried in the rage that follows the rape and murder of a child. Sheer emotion rules, a force that can take us to a dangerous place.

Stevens acknowledged this at least obliquely in his remarks. Juries, he noted, can be easily swayed by the sheer horror of the crime committed.

The Associated Press account of Stevens’ speech does not contain a direct quote on this, but the reporter paraphrased it as, “He said the jury selection process and the fact that many trial judges are elected work against accused murderers. He also said that jurors might be improperly swayed by victim-impact statements.”

I don’t expect all Americans to be able to grasp the moral argument against the death penalty. There is simply too much demagoguery on the other side. However, I had hoped that the spate of DNA exonerations would at least lead Americans to pause for a moment and force them to rethink their pro-death penalty stance. This has not happened. Support for the death penalty remains as high as ever. Although the Supreme Court has banned executing juveniles and the mentally retarded, it seems that, unique among Western nations, the United States will continue to impose the ultimate sanction.

Here comes the hard part: How do liberals deal with this as a political issue? Among the general population, the moral argument has been dismissed, and the pragmatic arguments have failed. Do we continue to press them or give up?

When it comes to presidential politics, I am tempted to say give up. After all, the death penalty is largely irrelevant to the president’s job. Only a few federal crimes merit that sanction. There is no reason to make this a litmus-test issue when, practically speaking, the president will have little reason to deal with it.

Unfortunately, I think we’re stuck with the death penalty, and on the presidential level, Democrats will have to embrace pro-death penalty candidates. It’s cold comfort to someone sitting on death row, but it’s possible that attitudes may slowly be changing. Some recent polls have shown support for the death penalty dropping when life imprisonment without the possibility of parole is offered as an option.

Give us another 100 years and maybe we’ll catch up with the rest of the civilized world.

I believe there are some very, very evil people in the world who probably do not deserve to live but they are very few and far between. I also think that, unless there is a massive amount of direct evidence, that human beings, on the whole, are not capable of discerning who these people are

I believe that “Thou shalt not kill” does not have any exceptions (ie it doesn’t say “Thou shalt not kill, except to punish an evil doer”). Some may suggest that there are other places in the bible that allow for that exception but when the 10 commandments were delivered, those exceptions did not exist.

On the other hand, if there was no death penalty, would the innocence project ever have existed? If not, then many people would be in jail for most if not all of their lives w/o anyone to take up their cause because there was no overriding reason to do so. From that stand point, I’m sort of glad that the death penalty exists. I just wish there was a way to truly find people guilty beyond all doubt (not just reasonable doubt) before even considering whether or not they should be put to death.

I guess what I’m ultimately saying is that there should not be a death penalty and there should always be accessible ways for anyone convicted of a crime (any crime, in my mind) to prove their innocence.

  • Forget trying to evaluate whose crimes make one unfit to live and so on. That’s a matter of opinion and we can all debate that forever. As Morbo says, it’s inappropriate to give the state the power to take a life through the justice system (CYA clause to exempt military).

    The thing nobody seems to understand about the death penalty is that its proponents defend it on the premise that it sends such a clear message of how precious life is, while the obvious message it actually sends is how cheap life is.

  • The answer to your question, Morbo, might be pretty simple. Ask people: Would you be willing to allow your loved one to be executed, even though he/she was innocent of a crime, in order to set a public example or assuage the feelings of the survivors of the person he/she was falsely convicted of murdering?

    If your answer is ‘no,’ then it is hypocritical to support the death penalty–the fact is that many innocent people are on death row or have had sentence carried out on them.

    My guess is that as long as its some other guy, people are perfectly willing to support the death penalty. When it comes to oneself or one’s child or spouse, the answer will likely be very different.

  • I can’t begin to accept the carnage
    and horror in Iraq and then profess
    outrage over the death penalty. It simply
    will not compute in my brain. And I can’t
    comprehend our failure to save thousands
    of lives or more through such measures
    as national health insurance, or increased
    medial research, or the zillions of things
    we can do, and then take a holier-than-thou
    attitude on the death penalty.

    Millions are starving on this planet, and we
    could do ever so much more to prevent
    this. How can we talk about the sanctity
    of human life when we so obviously are
    selective about it? I just don’t get it.

    But, having done my soapboxing:

    I do agree the death penalty is deeply
    flawed in how it’s carried out. The
    standard should be guilt beyond any
    doubt to begin with. Nobody should
    be executed on a reasonable doubt
    standard. And as anyone who reads
    true crime knows, juries are notorious
    for convicting on a lower standard than
    reasonable doubt. How can a jury
    deliberate for three days and then come
    back with a guilty plea (assuming it’s
    a straight forward case with one or
    two charges)? Obviously, there was
    considerable doubt, or they wouldn’t
    have deliberated so long.

    So yes, on our “reasonable doubt”
    standard here, I’m opposed to the
    death penalty. And since we’ll never
    use such an obvious standard as
    beyond ANY doubt, I guess even
    going any further is like arguing
    about how many angels can dance
    on the head of a pin.

    So, for all practical purposes, I’m
    against the death penalty. I’ve
    flip-flopped a few times in my life.

    Did Bush err on the side of life in
    all those executions he presided
    over?

  • Morbo, you may be right about the death peanlty on the presidential level, but I have to admit that I could never forgive Bill Clinton for ordering the execution of a retarded man.

    Although I don’t expect any professional politicians to take up the cause, I think that there ought to be a push for over the next decade or two to get a constitutional amendment banning the death penalty.

  • Morbo,

    First, kudos to you for having the intellectual honesty to revisit your personal views on this topic. I think that ability to change, to consider alternative points of view and change our own when appropriate, is what sets us apart from our brethren on the other side of the political and blogospheric divide.

    Second, it is still worth battling for, along with all the rest of our progressive principles. Democrats seem weak to amny Americans, apparently, NOT because of what we stand for, but rather because we don’t stand for anything. Giving up on opposition to the death penalty, either as an option at all or merely as to how it has been applied, would reinforce that caricature of Dems that has been painted by the RightWingNoiseMachine.

    What are the reasons to oppose the death penalty? Morbo and my fellow commenters here have already named many. I agree with all of them. I did want to add to what Martin said, that most death penalty proponents advocate for it as a way to show how precious life is, but instead merely shows how cheap it is. In fact, the hypocrisy of “saving lives” in utero, but not giving a damn about how those lives are lived after birth, or snuffing them out in a knee-jerk bloodlust because of some actual or erroneously-charged transgressions, creates more cognitive dissonance for me than I can handle on most days.

    The bigger point, Martin, is that I had always thought that death penalty advocates did so because they claimed it cut down on crime, that it was an effective deterrent to crime. Which has always struck me as balderdash. From the Death Penalty Information Center, see, e.g., http://www.deathpenaltyinfo.org/article.php?scid=12&did=167 , which shows that over the last decade the murder rates in non-death penalty states has declined faster than in death penalty states. From the same source, here http://www.deathpenaltyinfo.org/FactSheet.pdf is a Fact Sheet showing which states have the death penalty, the number of executions, exonerations and death-row inmates by state, and lots of other data. The last thing on this Fact Sheet is that police chiefs ranked the death penalty LAST for ways to reduce violent crime (only 1% thought this was the best way; compare: 31% – reducing drug abuse; 17% – better economy, jobs; 16% – simplifying court rules; 15% – longer prison terms).

    Earlier this week, The Carpetbagger Report ran a post on Peggy Noonan’ worldview, which then turned into a thread on violent crime rates in West Virginia and other states and the reasons http://www.thecarpetbaggerreport.com/archives/4933.html#comments . As you can see from my comments there, and those by others, that there seems to be no direct correlation between the rates of violent crime (defined by the FBI to mean murder, forcible rape, robbery (i.e., directly from a person, e.g., “mugging”), and aggravated assault). From my calculations of the FBI report, the three states with the highest rates of violent crime per 1,000 residents are Mississippi (73.06), Wyoming (69.14) and Arkansas (67.23) – ALL have the death penalty. By comparison, the three states with the lowest rates of violent crime per 1,000 residents are Massachusetts (21.92), Vermont (22.90) and West Virginia (24.43) – ALL do NOT have the death penalty.

    My conclusion: “deterrence” cannot rationally be used to support the death penalty; the data is exactly to the contrary.

  • My problem isn’t with the death penalty, per se, but with how it’s administered. There are a few people who most would agree are beyond any reasonable shred of redemption – Charles Manson, Jeff Dahlmer, and that class of ‘criminal’. I have no problem with execution in the obvious extreme cases. I actually favor it.

    I do have a problem is with how common it is. And I have a huge problem with career motivated DAs and other politicians want to look tough. At this point it strikes me as state sanctioned murder.

    I don’t know what the solution is. I think I’d rather see it decided by a unamimous ruling of 5 or 7 judges (who would have some expertise with evidence) than 9 emotionally manipulated jurors.

  • JoeW, I’m not sure that it’s up to us as humans to figure out who deserves to live. When we execute the Jeffrey Dahmers of the world we stoop down to their level, because we’re engaging in cold pre-meditated killing.

    I am not against all war, but I do believe that it represents a breakdown of law, and that within a functioning legal system there should be no state-sanctioned killing.

  • I used to be a staunch supporter of the death penalty. I felt it was an appropriate and justified penalty for those convicted of the most heinous crimes. In fact, I used to try to put myself in the shoes of a victim’s family and ask myself the question, “What should happen to this person/animal who murdered my father/mother/sister/wife/son/daughter/etc.?” Of course, I wanted the worst possible fate for anyone who had done something so horrible to my family.

    But it wasn’t until I began to really pay attention to the number of people who legitimately have been found to be innocent while on death row. Even one person who is executed while innocent of a crime is one too many. How would any of us feel to be stuck in that situation, knowing we did not commit the crime for which we were falsely convicted? And then to have to die for something we did not do?

    It soon became clear to me that the death penalty does more to debase our society than the supposed “benefit” of executing legitimate “monsters”. Does it really help any of us to execute a killer instead of locking him or her up for the rest of his/her life? I don’t think so. In fact, even from a cost standpoint, it’s actually cheaper to incarcerate someone for the rest of his/her life than it is to bear the costs of the legal appeals process for a death row inmate. So that argument goes right out the window.

    Ultimately, I would rather that we, as a society, err on the side of sparing the life of a legitimately guilty killer who spends the rest of his/her life in prison than to execute a legitimately innocent person. It seems to be the right thing to do.

    So, count me as a former death penalty advocate who has seen the light on this issue. I would only hope that others do the same.

  • You only need to spend a few minutes talking to the prosecutors in your County to realize that they are just regular humans being, prone to make mistakes, the death penalty is like giving the cops the right to shoot according to their own criteria, that is what our prosecutors are doing. That is why a guy that killed 48 women in Washington State can get life in prision and a first time offender in Texas get death. Makes no sense, and we are supposed to be the example to the world about “freedom”. What a joke.

  • The question was one of politics: how to address the issue without appearing “weak” on crime. I think it’s important to remember that this is all a setup.

    Many issues (including the death penalty) are framed so as to be impossible to argue. It isn’t the electorate framing this as a weak/strong argument, it’s politicians, and all the comments above arguing this issue from that perspective, while thoughtful and logical, are falling into a well laid trap.

    The death penalty isn’t about being tough or weak on crime, and allowing neo-cons to make this the “issue” means they’ve already won the argument: you either agree or you are weak. The solution is to change the issue back to something worth arguing about, or even flipping the tables and putting them in the box. Dems make this an anti-life issue, a big government issue, an attack on common folk issue, or even a big “waste of money” and “sloppy government” issue (since it costs lots of money and is often wrong. And don’t ever forget that this isn’t just about innocent people getting put to death; it’s also about all those guilty people free to commit more crimes. That’s “weak on crime.”

  • I have to go with JoeW on this one. I have never been a fan of the death penality for a number of reasons – all developed before the DNA argument. Being from an area that loves it death penalty – grew up in New Orleans, university in Alabama – I was perfectly aware of all the biases racial as well as socio-economic that made more arbitrary than it’s hard-core defenders would like people to believe. I never thought it was a deterrent. Always figured defendants suffered in a jury system that was more prosecution friendly. Always figured the bar was way, way, way to low and inconsistent. Always knew thoughts on race were not left at home. I always figured that any murder is going to be horrific to the general public – it is not like the general public deals with this in in personal fashion on a regular basis – so of course they are more likely to give credence to the prosecution and go for the dealth penalty.

    But then there are the Dahmers, Gaceys, and Raders.

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