Capital Punishment / Death Penalty

Capital Punishment / Death Penalty

The death penalty should be outlawed in the United States -- or at the very least there should be a moratorium on the death penalty until serious flaws and injustices can be addressed. The currently employed feeble justifications for keeping the death penalty -- along with the fact that capital punishment does not deter murder and other serious crime -- lead logically to the conclusion that capital punishment should be on its way out. Moreover, there is evidence that wrongful convictions have led to the killing of innocent individuals, and there is strong evidence of bias against people of color. This paper will present current data regarding the death penalty -- including the states that currently enforce capital punishment and the number of executions carried out in recent years.

The Literature -- Background Facts

According to a 2008 Gallup Poll, about 64% of Americans responding to this question ("Are you in favor of the death penalty for a person convicted of murder?") embraced the death penalty (Saad, 2008, p. 1). The percentage of Americans that favor the death penalty has remained fairly consistent through the years: in 2002 it was 68%; in 2003 70% were in favor; from 2004 through 2006 64% favored the death penalty; the percentage in favor went up to 69% in 2007 and back down to 64% in 2008 (Said, p. 1).

Gallup's polling people asked participants if the death penalty is imposed frequently enough; 48% said it is not used often enough while 21% said it is used too often. As far as political parties are concerned, 78% of Republicans support the death penalty, 66% of independents support it and 52% of Democrats support the death penalty (Said, p. 2).

Meanwhile, according to the Texas Law Review (Steiker, et al., 2010), the number of states that have capital punishment on the books is thirty-six, along with the federal government; of the thirty-six states with capital punishment, twenty-four presently have "at least ten inmates on death row" and nineteen of the thirty-six states have carried out "at least ten executions" in the past forty years (Steiker, p. 368). The number of executions has declined over the past few years, Steiker explains; to wit, in 1998 there were 98 executions but that number shrank to 53 executions in 2006, 42 executions in 2007, and 34 in 2008 (p. 368).

The number of death sentences handed down have dropped "even more precipitously" than the shrinking number of executions, Steiker explains on page 368. In the mid-1990s the high-water mark for sentences was 326 in 1995; by 2004 the number of sentences was down to 140 and in 2007 there were only 110 death sentences handed down in the U.S. (Steiker, p. 368).

What states carry out the most executions? Texas is always far and away more comfortable with killing convicted murderers (the Lone Star state has carried out 422 executions in recent years) than any other state in the union; Virginia has executed 102; Oklahoma 88, Florida and Missouri have executed 66 men, Steiker reports.

The Literature -- the Death Penalty Criteria is Uneven / Unfair / Arbitrary

Professor Steiker (Harvard University) points to instances where capital punishment is anything but a perfect science. For example there are "arbitrary factors" such as geography (where the court case took place), and the quality of representation (wealthy people have an enormous advantage in that they hire top notch lawyers), Steiker explains (p. 369). Besides the arbitrary factors there are also "invidious factors" (often the conviction is based on "race") on the "distribution of capital verdicts" (p. 369).

Even more disturbing, Steiker writes, is the evidence in the literature of "numerous wrongful convictions of the innocent" -- albeit many of those wrongfully accused and convicted were (fortunately) "exonerated" prior to their executions (p. 369). These wrongful convictions leads Steiker to worry about the "likelihood of similar miscarriages of justice in the future." Moreover, the professor believes the above-mentioned failures are due "in part" to the difficulties and complexities of the task of "rationalizing the death penalty decision."

Due to the "competing demands of even-handed administration and individualized consideration" as well as the complications vis-a-vis "deeply rooted institutional and structural obstacles" that stand in the way of a fair and adequate process for capital justice (pp. 369-70). Among the obstacles to a fair and objective administering of capital justice include what Steiker calls: a) the "intense politicization" of the process; b) the "inadequacy of resources for capital defense services"; and c) the dearth of "meaningful independent federal reviews" of capital convictions (p. 370).

Professor Steiker has other concerns about capital punishment: a) capital trials are "enormously more expensive than their non-capital counterparts" and these trials frequently have "significant financial consequences" for the local justice system; b) indigent defense legal components are often under-funded and over-burdened leading to "daunting costs" to local prosecutors and their county budgets (p. 419); and c) the "preconditions" for a capital punishment regime to be "adequately administered" cannot "reasonably be expected to be achieved" and are not currently available (p. 421).

In 2001, the American Bar Association called for a "general moratorium on executions" until the many flaws in the system "are eliminated" (ABA). The bar association hasn't backed off that proposal, in part because the association's research disclosed that the nation's capital punishment system is "…so fundamentally flawed that it is not only tragically and irreparably harming defendants" in myriad cases, it is also "undermining public confidence in the fairness of the legal system as a whole" (ABA, p. 4). There are specific reasons why the ABA has taken this position, and those reasons do not include issues of morality, philosophy or penologic theory, according to the association's statement. The ABA has not taken a moral position on capital punishment except in cases where "mentally retarded individuals" are involved, or individuals that were under the age of 18 at the time.

The positions taken by the ABA in opposition to the present capital crime system of justice include: a) the lack of consistent competency by "state-appointed counsel"; b) the "independence and thoroughness of post-conviction and habeas corpus review of capital cases"; c) the "continuing racial discrimination in the exercise of discretion"; and d) the "imposition of the death penalty on the mentally retarded" and on those under the age of 18 (ABA, p. 4).

The bar association points to specific flaws in the system, including the situation in Illinois in 2000, when the number of "innocent people" that the state was obliged -- based upon new evidence -- to release from its own version of "death row" actually surpassed the number of people that Illinois had executed. The association also points to the FBI's discovery that a man put to death in Florida was innocent of wrongdoing; indeed, the document published by the ABA references the fact that between 1972 and 2001 "…almost 100 individuals originally sentenced to death have been exonerated" (p. 4).

Another study referenced by the ABA (published originally by Columbia University School of Law) shows that in reviewing capital cases between 1973 and 1995, the courts "overturned more than two-thirds" of the death sentences (p. 4). The reasons for those cases being thrown out? "Serious state or federal constitutional violations in the processes" that originally led to the death penalty sentences, the ABA continues (p. 4). When individuals who are accused of capital crimes are not provided lawyers that are "competent" to represent them, it leads to "serious errors," the ABA asserts.