I was prompted to write this diary as a result of reading several comments by self-proclaimed left-leaning bloggers stating that they support the death penalty. I considered offering my opposing viewpoint, but decided that the matter was too important for an off-topic "rebuttal" in a comment. While I am by no means an authority on legal matters, I think that The Death Penalty may well be the most important moral subject that can be contemplated by mere mortals.
I will make my arguments for opposing The Death Penalty on the flip.
The U.S. Supreme Court ruled that the Death Penalty was unconstitutional in the 1972 Furman v. Georgia case (408 U.S. 153) because it was "cruel and unusual punishment" and did not provide for "due process." Georgia, Texas, and Florida revised their statutes to provide for two trials in Death Penalty cases; one for determination of guilt, and another to consider aggravating and mitigating circumstances in sentencing. In 1976 the Supreme Court ruled that these procedures satisfied requirements of the Eighth and Fourteenth Amendments, so America was back in the Capital Punishment business. The first execution under the revised laws took place in Utah on January 17, 1977, when Gary Gilmore was executed by firing squad.
The issue of Capital Punishment has the subject of debate for decades. In general, the arguments in support of the Death Penalty fall into two categories: (1) the death sentance is the only appropriate punishment for some crimes, and (2) it serves as a deterrent to violent crimes.
I will address the second argument first, and demonstrate that the Death Penalty does not deter violent crimes by using an objective analysis of the facts. A good place to begin is to examine the scope of the criminal justice system is the United States.
In 2005, more than 7 million people were under some form of correctional supervision in the United States. Of these, 1,259,905 were in State custody and 179,220 were in Federal custody. Another 747,529 persons were in local jails awaiting trial or serving a sentence. (USDOJ) As of July 1, 2006, there were 3,366 prisoners awaiting execution in the United States. (Wikipedia)
The Department of Justice began keeping regular records of executions in the United States in 1930. Since then, 4,863 persons have been executed under civil (nonmilitary) jurisdiction. In 2005, 60 persons in 16 States were executed -- 19 in Texas; 5 each in Indiana, Missouri, and North Carolina; 4 each in Ohio, Alabama, and Oklahoma; 3 each in Georgia, and South Carolina; 2 in California; and 1 each in Connecticut, Arkansas, Delaware, Florida, Maryland, and Mississippi.(USDOJ)
If the Death Penalty does in fact deter violent crime, we should be able to determine that by examination of factual evidence. A review of murder rates in the U.S., by region, shows that the highest incidence of murders occur in the South, and the lowest rates are in the Northeast. The greatest number of executions in the country are found in the South, with the lowest number of executions found in the Northeast. This is exactly the opposite of what is claimed by those people who use the "deterrent effect" argument to justify capital punishment.
REGIONAL MURDER RATES PER 100,000 PEOPLE, 2001-2005
| | | | | | EXECUTIONS |
| | | | | | SINCE 1976 |
REGION | 2005 | 2004 | 2003 | 2002 | 2001 | (9/21/06) |
South | 6.6 | 6.6 | 6.9 | 6.8 | 6.7 | 856 |
West | 5.8 | 5.7 | 5.7 | 5.7 | 5.5 | 66 |
Midwest | 4.9 | 4.7 | 4.9 | 5.1 | 5.3 | 121 |
Northeast | 4.4 | 4.2 | 4.2 | 4.1 | 4.2 | 4 |
NATIONAL | | | | | |
AVERAGE | 5.6 | 5.5 | 5.7 | 5.6 | 5.6 |
Source:deathpenaltyinfo.org
What if we look at a smaller geographic area? Would the "deterrent effect" argument withstand that examination? If we were to examine Texas, the state with the most executions, we would find that the homocide rate is not lower than the national average. In fact, except for 1997, the homocide rate is typically 10%-12% higher than the national average.
TEXAS MURDER RATES PER 100,000 PEOPLE
YEAR | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | 1998 | 1997 | 1996 | 1995 |
Texas | 6.2 | 6.1 | 6.4 | 6.0 | 6.2 | 5.9 | 6.1 | 6.8 | 6.8 | 7.7 | 9.0 |
National | 5.6 | 5.5 | 5.7 | 5.6 | 5.6 | 5.5 | 5.7 | 6.3 | 6.8 | 7.4 | 8.2 |
Source:deathpenaltyinfo.org
In the state that has carried out 379 executions over the past 30 years, the homocide rate is not lower than the national average in any of the 11 years for which we have records. This is not a minor point. The State of Texas has been responsible for 36% of the 1057 executions for the record period, with absolutely no effect in reducing the number of homocides.
So, is the State of Texas an anomoly? What if we expand our review to include the 10 states with the most executions since 1976. These states are shown below:
EXECUTIONS BY STATE
TEXAS | 379 |
VIRGINIA | 98 |
OKLAHOMA | 83 |
MISSOURI | 66 |
FLORIDA | 64 |
NORTH CAROLINA | 43 |
GEORGIA | 39 |
SOUTH CAROLINA | 36 |
ALABAMA | 35 |
LOUISIANA | 27 |
Source: deathpenaltyinfo.org
A review of the MURDER RATES PER 100,000 PEOPLE for those states, arranged in order of the number of executions is shown below:
| | | | | | | | | | | | TOTAL |
YEAR | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | 1998 | 1997 | 1996 | 1995 | EXECUTIONS |
STATE | | | | | | | | | | | | (1976-6/2006) |
Texas | 6.2 | 6.1 | 6.4 | 6.0 | 6.2 | 5.9 | 6.1 | 6.8 | 6.8 | 7.7 | 9.0 | 379 |
Virginia | 6.1 | 5.2 | 5.6 | 5.3 | 5.1 | 5.7 | 5.7 | 6.2 | 7.2 | 7.5 | 7.6 | 98 |
Oklahoma | 5.3 | 5.3 | 5.9 | 4.7 | 5.3 | 5.3 | 6.9 | 6.1 | 6.9 | 6.8 | 12.2 | 83 |
Missouri | 6.9 | 6.2 | 5.0 | 5.8 | 6.6 | 6.2 | 6.6 | 7.3 | 7.9 | 8.1 | 8.8 | 66 |
Florida | 5.0 | 5.4 | 5.4 | 5.5 | 5.3 | 5.6 | 5.7 | 6.5 | 6.9 | 7.5 | 7.3 | 64 |
North Carolina | 6.7 | 6.2 | 6.1 | 6.6 | 6.2 | 7.0 | 7.2 | 8.1 | 8.3 | 8.5 | 9.4 | 43 |
Georgia | 6.2 | 6.9 | 7.6 | 7.1 | 7.1 | 8.0 | 7.5 | 8.1 | 7.5 | 9.5 | 10.0 | 39 |
South Carolina | 7.4 | 6.9 | 7.2 | 7.3 | 6.3 | 5.8 | 6.6 | 8.0 | 8.4 | 9.0 | 7.9 | 36 |
Alabama | 8.2 | 5.6 | 6.6 | 6.8 | 8.5 | 7.4 | 7.9 | 8.1 | 9.9 | 10.4 | 11.2 | 35 |
Louisiana | 9.9 | 12.7 | 13.0 | 13.2 | 11.2 | 12.5 | 10.7 | 12.8 | 15.7 | 17.5 | 17.0 | 27 |
National | 5.6 | 5.7 | 5.6 | 5.6 | 5.5 | 5.7 | 6.3 | 6.8 | 7.4 | 8.2 | | 1057 |
Source: deathpenaltyinfo.org
In 5 of the 10 states, the homocide rate is higher than the national rate in all years reported. In the other states, the homocide rate is approximately the same as the national rate. This table shows data for 11 years for 10 stares, or 110 individual years. The actual homocide rate is lower than the national rate in 21 of the 110 years examined. Recall, these states have the highest number of executions in the country. If the Death Penalty did in fact deter violent crimes, these are the states where this should be evident.
If the claim that Capital Punishment has no effect in deterring violent crimes is to be valid, we must examine those states that do not have the Death Penaly. Eleven states and the District of Columbia do not have any provision for the Death Penalty in their laws. A summary of the homocide rates for those states is shown below.
MURDER RATES PER 100,000 PEOPLE
YEAR | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | 1998 | 1997 | 1996 | 1995 |
STATE | | | | | | | | | | | |
Alaska | 4.8 | 5.6 | 6.0 | 5.1 | 6.1 | 4.3 | 8.6 | 6.7 | 8.9 | 7.4 | 9.1 |
Hawaii | 1.9 | 2.6 | 1.7 | 1.9 | 2.6 | 2.9 | 3.7 | 2.0 | 4.0 | 3.4 | 4.7 |
Maine | 1.4 | 1.4 | 1.2 | 1.1 | 1.4 | 1.2 | 2.2 | 2.0 | 2.0 | 2.0 | 2.0 |
Massachusetts | 2.7 | 2.6 | 2.2 | 2.7 | 2.3 | 2.0 | 2.0 | 2.0 | 1.9 | 2.6 | 3.6 |
Michigan | 6.1 | 6.4 | 6.1 | 6.7 | 6.7 | 6.7 | 7.0 | 7.3 | 7.8 | 7.5 | 8.5 |
Minnesota | 2.2 | 2.2 | 2.5 | 2.2 | 2.4 | 3.1 | 2.8 | 2.6 | 2.8 | 3.6 | 3.9 |
North Dakota | 1.1 | 1.4 | 1.9 | 0.8 | 1.1 | 0.6 | 1.6 | 1.1 | 0.9 | 2.2 | 0.9 |
Rhode Island | 3.2 | 2.4 | 2.3 | 3.8 | 3.7 | 4.3 | 3.6 | 2.4 | 2.5 | 2.5 | 3.3 |
Vermont | 1.3 | 2.6 | 2.3 | 2.1 | 1.1 | 1.5 | 2.9 | 2.6 | 1.5 | 1.9 | 2.2 |
West Virginia | 4.4 | 3.7 | 3.5 | 3.2 | 2.2 | 2.5 | 4.4 | 4.3 | 4.1 | 3.8 | 4.9 |
Wisconsin | 3.5 | 2.8 | 3.3 | 2.8 | 3.6 | 3.2 | 3.4 | 3.6 | 4.0 | 4.2 | 5.1 |
NATIONAL | 5.6 | 5.5 | 5.7 | 5.6 | 5.6 | 5.5 | 5.7 | 6.3 | 6.8 | 7.4 | 8.2 |
DATA SOURCE: FBI Uniform Crime Statistics for 2005 (Published Sept, 2006)
NOTE: New York and Kansas death penalty statutes were declared unconstitutional in 2004.
Source: deathpenaltyinfo.org
Except for the States of Alaska and Michigan, the average murder rate is lower than the national for all years reported. The average murder rate among death penalty states in 2005 was 5.3/100,000 and the average murder rate among non-death penalty states in 2004 was 2.8/100,000. Again, these data show the opposite of what is claimed by those people who use the "deterrent effect" argument to justify Capital Punishment.
As shown above, there is no evidence to support the assertion that the Death Penalty serves as a deterrent to violent crime. To the contrary, the opposite is clearly shown by an objective review of the facts.
Relative to the argument frequently offered that the death sentance is the only appropriate punishment for some crimes, that is a subjective argument that cannot be rebutted with facts. Presumably, people who take that position are concerned with "justice being rendered" to those deserving of punishment. In common usage, "justice" can mean administration of law, fairness, moral rightness, equity, or conformity to truth, fact, or reason. I will attempt to show why the Death Penalty is not fair or morally right and frequently does not conform to truth, fact, or reason.
Not only is the Death Penalty ineffective in deterring crime, it is applied unfairly. People of color are much more likely to be given a Death Sentence than white people. Since 1976, 43% of all executions, and 55% of those currently awaiting execution are people of color.(ACLU) In 2005, the non-white proportion of the U.S. population was 25.3%. (Wikipedia) There is obviously a racial bias involved in giving the death sentence as punishment for a crime.
The American Civil Liberties Union (ACLU) has documented the fact that the death penalty is imposed differently from one state to another, and even from one county to another county in the same state. For example, in Maryland a felony murder is an unintentional murder that occurs in the course of a serious crime, but it is not a capital crime. The same crime, with the same circumstances is a capital crime New Jersey. This is not consistent with the Constitutional right of "due process...[and]... equal protection of the laws" guaranteed by the fourteenth amendment.
Another factor that significantly affects the outcome of trials where the Death Penalty is imposed is ineffectual counsel; that is, an incompetent defense lawyer. The ACLU goes so far as to say "The quality of legal representation is a better predictor of whether or not someone will be sentenced to death than the facts of the crime." The American Bar Association (ABA) published a Guide for Examining the Administration of the Death Penalty in the United States in 2001, titled "Death without Justice," (LARGE pdf file) in which they concluded:
... For many years, the ABA has conducted studies, held educational programs, and produced studies and law review articles about the administration of the death penalty. As a result of that work, the Association has identified numerous, critical flaws in current practices. Those flaws have not been redressed; indeed, they have become more severe in recent years, and the new federal habeas law and the defunding of the PCDO's have compounded these problems. This situation requires the specific conclusion of the ABA that executions cease, unless and until greater fairness and due process prevail in death penalty implementation.
Without a doubt, the thing that is most unfair and morally wrong with the Death Penalty is the execution of an innocent person. As of February 2006, one hundred twenty three (123) people have been found innocent and released from death row, according to Death Penalty Information Center (DPIC). The criteria used to establish this claim is that the defendants must have been convicted and sentenced to death, and subsequently:
a) their conviction was overturned and they were acquitted at
a re-trial, or all charges were dismissed; or
b) they were given an absolute pardon by the governor based
on new evidence of innocence.
The Innocence Project is a non-profit legal clinic at the Benjamin N. Cardozo School of Law at Yeshiva University. According to their website, One hundred eighty one (181) people have been exonerated while serving time on "Death Row." The Innocence Project only handles cases where DNA tests can yield conclusive proof of innocence. Some of the causes for these wrongful convictions include: mistaken eyewitnesses, corrupt scientists, inept defense counsel, and overzealous police and prosecutors.
One recent instance of justice causing the government to admit that they intended to kill an innocent person was in Florida. John Ballard was convicted of murdering two of his acquaintances in 1999, and sentenced to death. In February 2006, The Florida Supreme Court unanimously overturned his conviction and ordered his acquittal. The Court concluded that the evidence against Ballard was so weak that the trial judge should have dismissed the case immediately. Only 9 of the 12 Ballard trial jurors recommended a death sentence, but the judge decided to sentence Ballard to death anyway.
Former Illinois Governor George Ryan imposed a moratorium on the state's death penalty, after thirteen (13) people were proven innocent and released from the state's death row. Governor Ryan said:
... In 1976, after the U.S. Supreme Court ruled the death penalty was constitutional...But in looking back, it is clear that I only dealt with the issue in the abstract. In those days, my opinion was just that, my opinion. I had no say on how the capital punishment system would be administered and applied... But, thirteen times, innocent men were convicted of capital crimes by judges and juries based on evidence they thought was beyond a reasonable doubt. On thirteen occasions, innocent men were condemned to die ... until I can be sure that everyone sentenced to death in Illinois is truly guilty until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate.
The Death Penalty has been abolished by 106 countries. Of the countries that still use executtion as a means of punishment, the most prolific are China, the Democratic Republic of Congo, the United States and Iran. That puts this country in rather dubious company. In 2004, 97% of all executions in the world took place in China, Iran, Viet Nam, and the United States.
I think that in some cases, there may be some confusion between "vengeance" and "justice." To those who are fond of quoting the "... Eye for eye, tooth for tooth..." scripture from Exodus, there are other passages that they should consider:
Exodus 20:13: Thou shalt not kill
Deuteronomy 35,36: To me belongeth vengeance, and recompense ... For the Lord shall judge his people ...
Romans 12:19: Vengeance is mine; I will repay, saith the Lord
Matthew 5:7 Blessed are the merciful: for they shall obtain mercy.
Matthew 5:38,39: Ye have heard that it hath been said, An eye for a eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn the other to him also.
Matthew 6:14,15: For if ye forgive men their trespasses, your heavenly Father will also forgive you: But if ye forgive not men their trespasses, neither will your Father forgive your trespasses.
Other justifications for "vengeance" cannot be refuted with reason. I will agree that Andrei Chikatilo, Ted Bundy, and many others have commited heinous crimes against humanity; but I submit that exceptions to allow the Death Penalty should be not made for them. To me, requiring such monsters to live the rest of their life in prison seems to be at least as severe as killing them. And, should it ever be proven that they are not guilty, the situation can be remedied. In the case of Andrei Chikatilo, a man was arrested, tried and executed for the murder of Yelena Zakotnova, which Chikatilo convincingly confessed to commiting. A 99.9% "Success Rate" is not good enough for those people who find themselves in the 0.1% "Failures."
Another argument for having the Death Penalty as a punishment for capital crimes is that investigators can offer life imprisionment rather than the death sentence for suspects who cooperate. Apparently, that was the case in the investigation of David Berkowitz (aka Son of Sam), who entered a guilty plea in exchange for receiving life imprisonment rather than facing the death penalty. I have no rebuttal for that argument. This seems to be the only "tradeoff" in abolishing the Death Penalty. But if this the cost for ending state sanctioned murder and removing the possibility that an innocent person is put to death, it is a price that I think society should be willing to pay.
Crossposted at MLW.