The Death Penalty

It is not clear at first why anyone other than academic lawyers and priests would care about capital punishment. Since the death penalty was re-instated by SCOTUS in 1979, there have only been 1098 executions. When one compares this to the 42,000 people who die every year of car crashes, there would seem to be more pressing concerns. Yet capital punishment ranks along with abortion, gun control and gay marriage as a powerful fault line on the liberal-conservative divide.

Liberal/Conservative Moral Divide
The moral viewpoints are the center of the debate over the death penalty, and should be the bulk of an intelligent discussion. However, most arguments will focus on the major issues because it to resolve the moral divide requires making a liberal not a conservative.

The death penalty debate is first decided by most individuals at a very basic level of personal morality. Either it is “wrong” by its nature, because it violates the universal right to life, or it is “right” because retribution is “just” against a violator of this universal right to life. The individual then works backward to justify her conclusion.

Liberal
When one considers each side's world view, however, it does make sense. The liberal's idea of an individual's natural goodness corrupted by societal flaws, influences how the liberal sees the murderer. Murderers could only do this evil act because society had failed to give them a healthy moral code. Society is, therefore, partly to blame. To execute the murderer is an act of social injustice and rehabilitation our moral obligation.

"It is incontestable and deplorable that Negroes have committed crimes; but they are derivative crimes. They are born of the greater crimes of the white society. -MLK Jr., opposed to the death penalty"

Conservative
The conservative views the murderer very differently. If humans have an inherent dual nature of good and evil, wrong-doing is a personal moral failure. We best demonstrate our reverence for life by demanding the supreme punishment for those who would take someone else's life. Conservatives also believe in the absolute obligation of the state to protect the innocent. In murder, the conservative's concern is for the victim, who is certainly not the murderer.

"Executing a murderer is the only way to adequately express our horror at the taking of an innocent life. Nothing else suffices. To equate the lives of killers with those of victims is the worst kind of moral equivalency. If capital punishment is state murder, then imprisonment is state kidnapping and restitution is state theft. -Don Feder"

Catholic
As we will mention later, the Catholic Church is consistently opposed to the death penalty on principle

Justification of Viewpoint
Death penalty debate centers around 3 major additional issues : 1. Does it serve as a deterrence 2. Can it be fairly applied across racial, social and economic classes 3. Can its irrevocability can be justified considering possible new evidence or future disclosure of improper conduct by the prosecution will show an executed person to be innocent

Secondary arguments against the death penalty include 4. It brutalizes our culture 5. It is more expensive than lifelong imprisonmen 6. It is contrary to the 8th amendment against cruel and unusual punishments

Perhaps the best way to avoid embarrassment in a liberal crowd (who will likely refuse to believe your data) is to ask them: "If you could know with true 100% certainty that a person was guilty, and also that the death penalty was applied race blind, wealth blind, sex blind etc, would you support it?"

Deterrence
"If we execute murderers and there is, in fact, no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and in doing so would, in fact, have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. -Unknown"

That the death penalty may have a deterrence effect is the one possibility that no one in opposition can allow. Moral arguments of right and wrong offer no way to reach a consensus. If, however, execution deters other murders, then all moral arguments to the contrary get trumped by the saving of innocent life. The data here is statistical, and the debate of its meaning heated. What is safe to say is that each side quotes its own studies to reach a conclusion already arrived at. The issue is nicely discussed at Death Penalty Info.org

If you want to argue the statistics of deterrence, here are two approaches:

1. The Furman commutations: Furman v. The State of Georgia (1972) [Wikipedia] was the Supreme Court case where SCOTUS found the death penalty to be illegal. At that time, over 600 prisoners had their death sentence commuted. Since then, this group has committed 12 murders. "I'll be back. You can't keep the Democrats out of the White House forever. And when they get in, I'm back on the street! With all of my criminal buddies! Bah- ha-ha-ha!! - Sideshow Bob, Black Widower episode, Simpsons season 3, 1992." 2. Adler and Summers, Capital Punishment Works, Wall Street Journal Editorial, 11/02/2007: These two university professors studied the relationship between executions and murders. They concluded that each execution deterred 74 future murders. Using this study as your reference not only decisively supports your argument, it allows you to call your opposition's data "out of date", which is basically unanswerable and leaves them defending their data rather than tearing apart yours.

Geographic Distribution
Within the context of the overall murder rate, the death penalty cannot be said to be widely or routinely used in the United States; in recent years the average has been about one execution for about every 700 murders committed or 1 execution for about every 325 murder convictions. There is no doubt, however, that it is not uniformly applied from state to state. Even within a state, jurisdictions apply it differently. A 2004 Cornell University study showed that while 2.5% of murderers convicted nationwide were sentenced to the death penalty, in Nevada 6% were given the death penalty. Texas gave only 2% of murderers the death sentence, less than the national average. Texas, however, executed 40% of those sentenced, which was about 4 times higher than the national average. California had executed only 1% of those sentenced. It is hard to see these disparities as an argument against the death penalty instead of an expression of cultural diversity. Given that all death penalties have four levels of review, two federal, it is hard to believe that the process is subject to local misapplication.

Racial Distribution
New empirical studies underscore a persistent pattern of racial disparities in the application of the death penalty throughout the country over the past twenty years. Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. The gravity of the close connection between race and the death penalty is shown when compared to studies in other fields. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease. The latter evidence has produced enormous changes in law and societal practice, while racism in the death penalty has been largely ignored.

With the long history of racial discrimination and lynching in the US, the disproportionate execution of African-Americans is a troubling fact. Conversely, others note that this is lower than the Academic studies indicate that the single greatest predictor of whether a death sentence is given, however, is not the race of the defendant, but the race of the victim. According to a 2003 Amnesty International report, blacks and whites were the victims of murder in almost equal numbers, yet 80% of the people executed since 1977 were convicted of murders involving white victims.
 * Blacks make up 42% of death row inmates but
 * Blacks make up 12% of the general population. Also,
 * Blacks make up 34% of those actually executed since 1976.
 * 50% of the total prison population which is African American and that
 * ''Whites are, in fact, twice as likely as African Americans to receive the death penalty, and
 * Whites are executed more quickly after sentencing.''

Socioeconomic Distribution
Poverty is also a predictor of receiving a death sentence. Almost no defendants in capital cases can afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol. The quality of the public defender system is a large problem in our legal system.

Public Defender System
In 2000, Columbia University Law School released an extraordinarily comprehensive study of the death penalty in the United States. Professor James Liebman studied every death penalty appeal from 1973 through 1995 and discovered disturbing patterns. Of all the thousands of cases that had completed the appeals process, an astonishing 68% were found to contain errors so serious, the guilt or sentencing trials had to be done over again. Although in the early 1990s some prosecutors and legislators had tried to convince the public that the death penalty was plagued by needless and endless appeals thwarting justice, the Liebman study found that the appeals process was critical because it revealed that most trials contained serious errors.

"I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. -Justice Ruth Bader Ginsburg"

Innocence and Irrevocability
"It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death. -Maimonides"

This is the kind of aphorism that one must prepare for in debate. It has the weight of authority, it seems true at first pass, and it resonates with ancient cultural familiarity (Jefferson has a similar, more used quote). You really must have thought through possible responses in advance, before the aphorism's "self-evident" truth settles into everyone's mind. There are many possible ways to respond to this, here are three:


 * "I think it would be better and more satisfactory to execute one thousand guilty persons than to allow a single murderer to kill another innocent person."
 * "To demand perfection from any system run by humans is merely to state that you don't want that system under any circumstances."
 * "That kind of smug and silly statement could only be made by someone who never expects to live or by a released murderer."

Since the death penalty was re-instated in 1976, 116 people on death row have been exonerated, mostly on DNA evidence. This has caused a shift in public opinion which has shown a very high awareness of the mistakes that have been made in capital cases and a strong support for reform. Support for the death penalty has always fluctuated throughout the past century. According to Gallup surveys : It is not clear whether DNA exonerations will ultimately erode support for the death penalty as it exposes flaws in our legal system or whether it will increase support for the death penalty by showing some cases to be beyond doubt of guilt. The "certainty" argument cuts both ways. Of the more than 1000 executions since 1976, none of the executed have been shown to be innocent. Eight persons were possibly innocent.
 * In 1936 61% of Americans favored the death penalty for persons convicted of murder
 * Support reached an all-time low of 42% in the cultural turmoils of the mid-60's.
 * Throughout the 70s and 80s, the percentage of Americans in favor of the death penalty increased steadily, culminating in an 80% approval rating in 1994
 * Since then however, that support has been eroding so that by 2004, support for capital punishment had fallen from 53% to 50%.
 * The 2004 poll also revealed a growing skepticism that the death penalty deters crime, (62% saying that it did not) or that it could be applied fairly (45% saying that it could not).
 * These percentages are a dramatic shift from the responses given to these same questions in 1991, when 51% of Americans believed the death penalty deterred crime and 55% believed it could be implemented fairly.
 * These data should not be taken as showing a moral problem with capital punishment as 71% supported the death penalty if life imprisonment without parole was not offered as an alternative. (Gallup Poll News Service, June 2, 2004).

Brutalizing Effect
This is an hypothesis that the death penalty coarsens society in general and those in the justice system who must participate in it, in particular. It is “judicial murder” and sends a message that it can be acceptable to take someone’s life. This is just the “morally wrong” argument in disguise. One could as easily argue that it shows that the justice system takes the right to life seriously and not executing the murderer does not allow the victims friends and family closure. Remember that the state should have a monopoly on the legitimate use of force.

Catholics
It should be noted that one group of conservatives has a principled and consistent opposition to the death penalty: Catholics.

"We cannot overcome what Pope John Paul II called a 'culture of death,' we cannot reverse what we have called a 'culture of violence,' and we cannot build a 'culture of life' by state-sanctioned killing. As we said before and renew today: we cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life. -A Good Friday Appeal to End the Death Penalty, Conference of Catholic Bishops"

It is critical to note that this opinion is part of a comprehensive moral fabric that sees the sanctity of life extending from conception to death. Catholic opposition to the death penalty in America is also based on the belief that here, we have the resources to protect the innocent from further harm without resorting to the death of the murderer. Catholic opposition is not based on a Church dogma that forbids the death penalty.

An appeal to the "sanctity of life" argument against the death penalty can only be used if it applies to all human life. Specifically, one cannot be against the death penalty and for abortion, based on the "sanctity" argument. This is a point that must be forcefully applied when debating with liberals. Their only rational rejoinder has to then be that the fetus is not a human. This should be countered by the observation that if you would harm a group of people, first declare them "subhuman". That is the argument we used to impose slavery and the argument the Nazis used in The Final Solution. This is not a comfortable place for a Liberal.

Expense
The death penalty makes a legal system expensive because it is so inefficient. On average only about 10% of death sentences result in an execution. The extraordinary costs of a death penalty case, from trial to appeals, are carried on 100% of the cases. The only savings are those of not having to incarcerate someone who is executed. But in over 90% of the cases, the state pays both ways: it pays the extra expense of seeking the death penalty, and then, because the death penalty is not carried out, it also pays the costs of life imprisonment. This explains why the death penalty, as a system, costs so much. For example, in Florida it has been estimated to cost $43 million dollars per execution. Florida estimates that in 2000, it cost $51 million more to have death penalty trials than it would to incarcerate murderers for life.

As mentioned earlier, do not argue that we should shorten the appeals process, instead be prepared to show a strong moral imperative for the death penalty.

The 8th Amendment: Cruel and Unusual Punishment
This is a favorite argument of activist judges who are against the death penalty. “Cruel” and “unusual” are subjective terms that can be interpreted according to one’s prejudices without fear of being proved wrong. Supranationalists can rightly point out that the death penalty violates most human rights treaties and the constitution of many modern states. Of course these documents also proclaim the right to liberty to be universal, and this is violated by incarceration. Our constitution does not explicitly exempt the death penalty from the right to life clause. This gives lawyers and judges endless opportunity to argue, but they do not advance pass the morality arguments. The “cruel” part of the Eighth Amendment has recently seen new life. This year SCOTUS agreed to hear a case Baze v. Rees [Wikipedia] that will review whether or not the lethal injection mixture used in the state of Kentucky is state of the art enough or whether it causes undue pain. Most observers do not feel the case will challenge the basic right of the state to execute murderers. Indeed, SCOTUS decided 7-2 against the men, with Ginsburg and Souter dissenting.

Food for Thought

 * 1) It is a district attorney who decides to try a case as a death penalty. Is it inherently biased that 98% are white males given that a disproportionate number of cases are against African Americans?
 * 2) Should the mentally retarded be eligible for the death penalty?
 * 3) Should juveniles be eligible for the death penalty?
 * 4) Only 1.4% of those executed since 1976 have been women. Should feminists protest this obvious gender bias and demand more executions of females in the name of equality?
 * 5) By having the death penalty, does the US provide cover for other, more brutal regimes, who use it for political purposes?
 * 6) Should executions be done in public or private?
 * 7) If someone facing the death penalty commits suicide (they have six times the rate of the general prison population), have they executed their own sentence?
 * 8) If you were a governor, under what circumstances would you commute the death penalty (excluding proof of innocence)?