In the interest of posting something other than a candidate diary--and oh how I'd love to write a candidate diary--I had the idea of posting a diary on a much less contentious issue: the death penalty.
I recently wrote this essay for a writing course here at UC Santa Cruz in response to an article by Jeffrey Toobin in The New Yorker titled "Death in Georgia," and I thought I'd share it with the community here. I don't believe there are any rules against this (and please tell me if there are) so I hope you enjoy.
Let me know what you think.
It has been nearly three decades since the Supreme Court effectively reinstated the death penalty within the United States via the ruling in Gregg vs. Georgia. Its reinstatement, by 2001, had lead to nearly 3,700 convicts on death row, and 700 or so criminals executed (Trollinger, 2001: ¶ 2). To those in favor of capital punishment, things have run smoothly since 1976. That is, until recently. You might say what began in Georgia, is starting to end in Georgia.
An article by Jeffrey Toobin entitled "Death in Georgia: Why a Notorious Case Remains Unresolved," recently ran in the February 4th issue of the New Yorker. It centers itself on the case of a young man named Brian Nichols and the heinous crimes he’s been accused of. Short of key evidence suggesting mental retardation, Mr. Nichols looks assured of a spot on death row—that is of course if he can actually be convicted for the crimes he’s been accused of (Toobin, 2008).
Taking an interesting look at the costly infrastructure that backs the death penalty system in Georgia, Toobin reveals to us a "paradox" that exists within a system that aims to not just kill, but to kill with both due process and with efficiency—slightly oxymoronic I know. The system in Georgia, as with many other states, has become complicated because of a Supreme Court ruling in 1963—Gideon v. Wainwright—which states "that indigent criminal defendants must be provided with lawyers free of charge" (Toobin, 2008: 32). This means Mr. Nichols has the right to have lawyer provided to him, and that that lawyer be paid for and that he be competent. However, his lawyers cannot be paid, with a grossly under-funded capital defense system in Georgia incapable of handling the estimated total of $1.4 million as of March 2007 (Goodman, 2007: ¶ 3). Without money, the lawyers don’t get paid, and if the lawyers don’t get paid, they don’t defend, and if the lawyers don’t defend, then Nichols is being denied his rights and the case will not go forward.
Toobin’s article, when appreciated in it’s own right, looks like an isolated case of a problem within the complex institution of death that is capital punishment. In the larger context though, when one looks at the debate on the death penalty as a whole, we see that Toobin’s article is trying for something very specific: too show us that the death penalty is impractical because of the weight it places on our society’s pocketbooks, and that it should be abolished, or tightly reformed to lighten that load.
First, we should understand this debate as a whole, for it is one of the most hotly contested issues here in America. To me, from what I’ve read, one’s opposition to or approval of the death penalty can fall into categories of practicality and morality. You have those who are against the institutionalization of death, and they will have a medley of reasons, be they practical or moral, as to why they have founded an opposition. The same proves true for those that approve of capital punishment—they too will have their own reasons, be they practical or moral to cite in their approval. Now these two sides, we will call them Pro, meaning those for the death penalty, and Anti, meaning those who oppose the death penalty, have been arguing for many years now. Back and forth the argument has gone, and each side has been trying to find an edge on the other in effort to win this debate and not just instate, but institutionalize their strongly held opinions.
Now that we understand the debate at hand, I want to more accurately place Toobin’s article into this spectrum. His article offers up largely economical and practical counter points, to prove that the death penalty should be abolished. Citing large expenditures and an overwhelming bureaucracy that must exist for the "super due process" mandated by Furman v. Georgia (Trollinger, 2001: ¶ 5), he claims, although not explicitly, that the death penalty is not working. He and his article would fall into the category of Anti, while citing issues of practicality.
He does this with very good reason. The evidence for his case is mounting. Georgia is not the first place to be experiencing this conflict of interest between efficiency and due process. New Mexico, Utah, California, Arizona, Texas, and Louisiana all are experiencing similar problems with paying for the costly defense of indigent criminals facing capital accusations (Dewan & Goodman, 2007: ¶ 7-8). Colorado Representative Paul Weissmann "said it had cost the state $40 million in three decades to execute [just] one inmate and put [only] two others on death row" (Goodman, 2007: ¶ 9). "Florida spent...over 15 years...an average of $3 million a head," and Texas "an average of $2 million" (Quindlen, 1994: ¶ 7). A capital offense case in California on average cost nearly $5.28 million (Williams-Harold, 1998: ¶ 2). Compare the above tabs to the estimated cost of keeping an inmate incarcerated for 40 years—roughly $660,000-$500,000—and the fact that a "recent study shows that the cost of the death penalty exceeds the cost of life sentences without parole by more than 30 percent" (The Nation, 2003), you have a case for crying fiscal irresponsibility on those supporting the system (Quindlen, 1994: ¶ 7)(Ross, 1995: ¶ 1). Toobin is just another piece of corroborating evidence to add to the large list of things that make the institution of the death penalty down right impractical and expensive.
So yes, the argument can go along the lines of "we can’t afford it" (Quindlen, 1994: ¶ 6). Yes, the argument can be centered on the fact that the "costs [of maintaining the death penalty] are in almost every case far greater than maintaining a prisoner for life" (Drinan, 1996: ¶ 9). The argument can go this way. It proves to probably be one of the few ways the debate could swing in the Anti direction. "If there is any common ground to be found at all [between the Pro and the Anti], it is in the practical rather than the moral realm" (Rieff, 2000: ¶ 17). I believe, like Rieff, that concentration on the practical issues surrounding opposition to the death penalty is one of the few areas where we may actually gain a consensus between the two factions.
However, I also believe that the argument has become much too focused on the practical rather than the moral aspects of the death penalty. We, the Anti, as a collective group, have started to ignore the moral aspects almost all together. Abandonment of morality comes from the realization that on the terms of morality, both the Pro and the Anti sides have solid ground and footing. It is not difficult for one group or the other to claim moral superiority. And thus, for a long time, we’ve seen "the two sides talk past each other" rather than have a substantive debate between the factions (Rieff, 2000: ¶ 20). It is really easy for the Anti to rail on the Pro for their "weapon of revenge" and the idea of the death penalty as retribution (Trollinger, 2001: ¶ 7). We can easily cite the legitimized "return of vengeance" in our legal system (Langan, 2001: ¶ 3). But, the "ultimate justification for the death penalty is also moral," and so we find ourselves at an impasse (Rieff, 2000: ¶ 8).
Because of this problem, of this inability to win the debate, conversation and concentration have centered themselves largely on the ideas that will help the Anti win the debate—those of a practical nature. Here lies our issue: we have lost track of exactly why we oppose the death penalty while looking for the ways to win the argument and institutionalize opposition of the death penalty. We have lost our way, concentrating on winning rather than knowing why we should (Obama, 2007). We need to remember that there is a cost to be paid, not only out of our fiscal pockets, but also out of our moral deposits. Toobin’s article is an excellent piece of evidence to help us win the argument for the abolishment of the institution of death, but concentrating on evidence such as his diminishes our purpose. True, morality has done little to help us win the debate, but throwing morality out the window does much more to hurt, than to help our cause. It is important to include musings on morality within the debate on the death penalty and its costs. An argument based on practicality sans morality is, in itself, immoral, as it betrays the purpose of our debate, and provides us an air of cold-heartedness, of calculation, of self-interest, and of greed. It removes from us our passion, and replaces it with a book answer that lacks conviction or real potential. We need to pay attention to the cost of the death penalty—not only the cost on our checkbooks, but also on our society. We need to understand the costs on our fiscal and our moral consciences. When we do that, then we will go into the debate on the death penalty with not only the evidence that says that capital punishment is negative for society, but also with the moral clarity as to why it should be abolished. We can and should win that debate any day.