Marking off the area of Debate on the Death Penalty

    In class today, we had an enlightening discussion on reasons the death penalty is problematic. Innocence, cost, lack of deterrence and the arbitrary application of the ultimate punishment were among the most salient reasons to oppose the death penalty. For this post, I would like to further examine some of these reasons, coming to the conclusion that some of these problems constitute problems with the death penalty as it is currently utilized. In effect, I will argue that the death penalty is presently used in a manner that is difficult to reconcile with any notion of rights and justice. Finally, I will look at the death penalty when used in a more limited manner, finding that though I disagree with the use of the death penalty, there is more room for reasonable disagreement than in the broader practice as exists today.

    The death penalty in current practice has a number of problems. As shown in Actual Innocence, many individuals on death row are not guilty of the crime they were accused of. These breakdowns in the criminal justice system arise for a number of reasons, be it racism, pressure on prosecutors, judges, and governors, inept public defenders, or other circumstances. Fortunately, as noted in class, the United States does not know of any time in which an innocent person has been executed in the modern era. Unfortunately, an unwillingness to uncover innocence of already executed individuals may be the reason, and while one could imagine that we have not executed any innocents, there is at least a decent probability that we have. Whether for humanitarian or simply self-interested reasons (for one certainly wouldn't want to run the risk of being executed for a crime he didn't commit), this presents obvious problems.

    Another issue arises with the arbitrary application of the death penalty. Minorities and the poor are considerably more likely to be executed for their crimes. Since 1976, 35% of the executions have been carried out on African-Americans; a number nearly three times their representation in American society in 2008 (12%). Furthermore, African-Americans constitute 41.6% of the current death row population, a number barely lower than the Caucasian population (44.4%). In addition to race, access to resources plays an important role. Many of those condemned to death are using public defenders that are overworked and underpaid. The reality is that an individual who can afford good legal counsel has a minimal to non-existent chance of landing on death row. These factors combine to ensure that the only people being executed are the poor, a disproportionate number of them black.

    Finally, some will argue that the death penalty is used in a cruel or inhumane way, violating the 8^th Amendment prohibition against such punishments. This argument tries to violate certain methods of the death penalty, such as execution by hanging, electrocution, or other methods (there are others who contend that any method of execution is cruel and unusual, thus violating the Constitution. This will be addressed later.). Keeping the 8^th Amendment in mind, death penalty advocates should at least be cautious to enact a procedure that does not result in cruel or unusual punishment.

    In reviewing the noted problems with the death penalty, it is apparent that it currently has some problems as it is currently practiced. Yet is this a refutation of the entire practice? Certainly we should work to avoid executing the innocent or killing criminals in a cruel manner. And most who took an honest look at the facts would be forced to conclude that the death penalty discriminates against minorities and the poor. However, none of these make the death penalty off-limits in all cases, unless one is willing to argue that any statutory enactment of the death penalty will necessarily result in some of these problems, an argument that would be a discourse on man and society more than on the death penalty itself. I am arguing that these aforementioned problems mean that, at the very least, we should be careful with our use of the death penalty. We should designate the wiggle room within the debate. The death penalty cannot be defended unless it is carefully enacted to avoid ensnaring the innocent or discriminating on the basis of race. Additionally, we should work to provide better representation to those accused of a capital crime. These constraints, and perhaps others that I did not address, must be included in any morally defensible use of the death penalty.

    How much further beyond this limit can we go? Can we ban the death penalty outright? Can we use it freely beyond this point? Imagine a scenario in which an individual is clearly guilty of murder of a particularly heinous sort. One could use Scott Roeder, who shotgunned George Tiller, an abortion provider, in a church full of people. Or, one could use Timothy McVeigh, who detonated a bomb and killed 168 innocent civilians. I believe this is the point where reasonable people can diverge into different opinions on the death penalty. Each individual will have to weigh the relative costs and benefits of the death penalty before coming to a decision. In this section, I would like to refute two arguments for outright bans on the death penalty, as well as the main reasons that factored into my calculus for rejecting the use of the death penalty.

    It has been argued on our class blog that the death penalty violates our right to life, one of our fundamental rights to life, liberty and the pursuit of happiness as declared in our Constitution. By declaring the state able to execute an individual convicted of a capital crime, one is saying that the right to life in conditional on other actions rather than inalienable. However, as I responded, I think all of our rights are conditional on us obeying the laws of society. By comparison, the entire notion of restorative justice would be in jeopardy if we said one could not imprison or fine a criminal due to his fundamental right to liberty. These rights are retained and protected as part of a contract, and the penalty for breaking this contract may be the forfeiture of your fundamental rights.

    A second Constitutional criticism comes from those, like Justices Brennan and Marshall in Furman v. Georgia, who argue that any enactment of the death penalty constitutes cruel and unusual punishment and thus is incompatible with the 8^th Amendment. Yet this criticism seems to run afoul different portions of the Bill of Rights, specifically the Due Process Clause of the 5^th Amendment. The clause states that no person "shall be deprived of life, liberty, or property, without due process of law." This implies that a person may be deprived of life so long as there is due process of law. One should keep in mind that the 5^th and 8^th Amendments were enacted at the same time, so it is unlikely that the 8^th was meant to refute certain portions of the 5^th. Of course, one could get into the debate of the dead vs. the living Constitution, but it is clear that at least as the Founders intended, the death penalty is not unconstitutional on its face.

    In contrast to the blunt instruments used by Constitutional arguments against the death penalty, I would like to put forth the proposal that we do away with the death penalty because it is not particularly useful. Two of the major arguments for the death penalty, cost and deterrence, are at best inconclusive and at worst not true. In effect, we're left with a system that costs more than life imprisonment and may or may not have a deterrent effect, while also dealing with all of the practical problems that we've teased out of this theoretical exercise. Additionally, there are significant moral issues involved with state-sanctioned killing, and, in the absence of true benefits, the math does not add up for me. For this reason, I will not advocate for the death penalty, and I hope it dies out through normal democratic means.

    In sum, I hope I've helped to get you to think deeply about the death penalty. I think we need to strip out some of the auxiliary problems noted at the beginning before getting to the heart of the matter and making a decision. It is important to discover what issues surrounding the death penalty are indefensible on any grounds before each individual makes up his or her mind regarding the death penalty and the truly guilty.

 

One thing to think about:

If the death penalty was abolished and we saw a large spike in violent crime that most experts conceded was due to the lack of the death penalty as an effective deterrent, would this change your mind? Would you fight to get it reinstated? Note: this assumes that the evidence on deterrence becomes clear-cut and accepted by both sides. Admittedly, this is highly unlikely.