The Supreme Court decided 5-4 yesterday to rule out the death penalty as punishment for any crime except that in which the victim’s life was taken.
Whew. (Pause to wipe sweat off forehead.) Using the death penalty as punishment for any crimes beyond murder was more than a slippery slope—it was a vast moral chasm spreading out between our highest ideals and our basest emotions. So thank god the Supreme Court has closed it up. The majority went beyond the child rape case in question and
laid down a critical standard: in cases of crimes against individuals (which excludes treason and espionage) the death penalty can be applied only when the victim's life is taken. That rule should deter efforts to extend the use of capital punishment.
Which is all good. But given all the recent hesitations, virtual moratoriums, and reversals on the death penalty, why do we still have one? Why is it that every time it seems that the country is finally going to come to its senses and do what most civilized countries in the world have done, banning capital punishment--we start killing people again?
I recently spent a day wandering around the brand spanking new Museum of Crime and Punishment in D.C. And as I followed the timeline of criminal punishments, I noticed that the punishments themselves seemed only slightly less barbaric in the twentieth century as they did in the High Middle Ages.
Certainly we've made progress in terms of our legal system and in how we try and convinct criminals--and like the recent Supreme Court decision, we decided that the punishment really should fit the severity of the crime. That's why, unlike China, we don't execute people for things like corruption. And that's progress, no doubt.
But as I wandered along, looking at all the different ways we tried to find to execute people in a more humane way, I wondered why we didn’t just stop executing them. At what point did the original torture machines of Europe stop cranking while we determinedly soldiered on here in the New World? And found ourselves allied with some countries with some truly abysmal human rights histories?
Here (based on Amnesty International's stats) are the countries that we keep company with for most executions in 2007:
China 470+
Iran 317+
Saudi Arabia 143+
Pakistan 135+
USA 42
Iraq 33+
And why? Is it our much-touted "Judeo-Christian" values, the old biblical adage about an "eye for an eye?" Or is it because of our unique and horrific culture of murder and violence here in America—and that we're just plain scared? When our country was born in the blood of Revolution, did we condemn ourselves to forever remain a nation steeped in violence? But if so, how do you explain France?
A new study might provide some answers, though not definitive ones, of course:
Professors David Greenberg from New York University and Valerie West of John Jay College examined data from 193 nations to test why some countries regularly use capital punishment while others have abandoned it altogether. They found, "In part, a country’s death penalty status is linked to its general punitiveness towards criminals. Countries that imprison more convicted criminals are also more likely to kill them."
And we certainly do imprison a gigantic percentage of our population--762 per 100,000, in fact, or five to eight times that of other highly developed countries, according to the Sentencing Project. But then again, the study also points out that, "countries with higher literacy rates and developed economies were least likely to have the death penalty."
Then again, we’ve always been a nation of contradictions. The United States is a terrifying parent, given to fits of unbelievable kindness alternating with uncontrollable and violent rages. So it wouldn’t be entirely surprising that we're as schizophrenic in regard to our methods of punishment as we are in regards to so many other things.
In today’s op-ed, the New York Times Editorial Board points outthat the majority opinion contains a warning that seems at least as important as the ruling itself:
Justice Kennedy’s opinion had a proper and welcome skepticism about the death penalty in general, warning that "when the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."
Why haven't we broken with our history of brutality in this regard, although we've civilized ourselves in so many other ways? Especially with a system that not only lacks decency and restraint, but that also contains endemic biases and unfairnesses that undermine it to the point where it has become utterly useless as a measure of real punishment.
We finally stopped condemning mentally retarded people in 2002, after the Supreme Court ruled in Atkins v. Virginia that it is unconstitutional to execute defendants with mental retardation.
We finally stopped condemning children to death, after the 2005 Supreme Court ruled in Roper v. Simmons, which struck down the death penalty for juveniles.
However, we still condemn people who are severely mentally ill—-those who are not responsible for their actions and often have little to no understanding about the process of trial and appeal and eventually, eventually, the process of dying itself. We do this despite The American Psychiatric Association, the American Psychological Association, the National Alliance for the Mentally Ill, and the American Bar Association all endorsing resolutions calling for an exemption of the severely mentally ill, according to the Dealth Penalty Information Center.
We still kill despite the grave concerns over the most common method of administering the death penalty, lethal injection:
Concerns surrounding lethal injection are being raised by inmates in courts as well as by legislators. Inmates raising lethal injection challenges are generally claiming that the drugs used in executions cause extreme and unnecessary pain, and that the combination of chemicals, Pavulon in particular, masks any pain being experienced by the inmate from the sight of those administering the execution. The appeals assert that this is a violation of the Eighth Amendment's ban on cruel and unusual punishment. These challenges have resulted in executions being effectively halted in numerous states due to concerns about the lethal injection procedure, including Arkansas, California, Delaware, Florida, Maryland, Missouri, New Jersey, and North Carolina. Additionally, legislation is pending in many states to change or study the lethal injection procedure.
We kill despite the financial costs:
•The California death penalty system costs taxpayers $114 million per year beyond the costs of keeping convicts locked up for life. Taxpayers have paid more than $250 million for each of the state’s executions. (L.A. Times, March 6, 2005)
• In Kansas, the costs of capital cases are 70% more expensive than comparable non-capital cases, including the costs of incarceration.(Kansas Performance Audit Report, December 2003).
• In Indiana, the total costs of the death penalty exceed the complete costs of life without parole sentences by about 38%, assuming that 20% of death sentences are overturned and reduced to life. (Indiana Criminal Law Study Commission, January 10, 2002).
• The most comprehensive study in the country found that the death penalty costs North Carolina $2.16 million per execution over the costs of sentencing murderers to life imprisonment. The majority of those costs occur at the trial level. (Duke University, May 1993).
• Enforcing the death penalty costs Florida $51 million a year above what it would cost to punish all first-degree murderers with life in prison without parole. Based on the 44 executions Florida had carried out since 1976, that amounts to a cost of $24 million for each execution. (Palm Beach Post, January 4, 2000).
• In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. (Dallas Morning News, March 8, 1992).
We kill despite the horrific race biasbuilt into the system. Since 1977, blacks and whites have been the victims of murders in nearly equal numbers, yet 80% of the people executed in that period were convicted of murders involving white victims.
And perhaps most disturbingly of all, we kill despite the giant flaws in the system in regards to innocence: since 1973, 129 people in 26 states have been released from death row on evidence of innocence. There’s no way to tell how many innocent people have been executed, since innocence isn’t generally investigated after death.
People deeply involved in the system have changed their minds, swayed by overwhelming evidence of race bias and lingering doubts about innocence, as well as our simple ability to fairly mete out and carry out the ultimate punishment.
Justice Stevens, once a moderate and appointed by Ford, just two months ago renounced capital punishment:
In that case, Uttecht v. Brown, a 5-to-4 majority gave state courts great leeway in death penalty trials to remove jurors who express even mild doubt about capital punishment.
"Millions of Americans oppose the death penalty" and yet can serve as conscientious jurors, Justice Stevens objected then, adding that the majority "has gotten it horribly backwards" in enabling prosecutors to weed them out.
In his opinion on Wednesday, Justice Stevens said the Uttecht decision was "of special concern to me," and used it to explain his journey from Jurek v. Texas to Baze v. Rees. Those who voted to uphold the death penalty in 1976, he said, "relied heavily on our belief that adequate procedures were in place" to treat death penalty cases with special care so as to minimize bias and error.
"Ironically, however," he continued, "more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders."
In other words, capital punishment had become for him, in the court’s hands, a promise of fairness unfulfilled.
His decision was, though milder, an echo of Justice Blackmun’s ringing renunciation of capital punishment years before, when he said, "From this day forward, I no longer will tinker with the machinery of death."
And famously, the now-disgraced Governor Ryan of Illinois used the same phrase himself when he commuted the sentences of all 156 Illinois inmates waiting on death row.
"I'm going to sleep well tonight knowing that I made the right decision," said Governor Ryan.
"Because the Illinois death penalty system is arbitrary and capricious - and therefore immoral - I no longer shall tinker with the machinery of death," he said.
Governor Ryan changed his mind after a commission he set up in Illinois found that the death sentences were "given disproportionately to the poor, people from ethnic minorities and in cases in which informers' evidence was used."
That was in 2003. Here we are 2007, after several Supreme Court and lower court rulings that ring out with scorn for our inability to properly and fairly administer the machinery of death. And yet we’re still killing people.
Why? Why are we still trying to trade an eye for an eye? Why are we still attemping, with all-too-human fallibility, to see justice done in an irreversible, final fashion?
Why is the state still executing people? And will we ever stop?