Death penalty: arguments, ethics, and policy

¶ … Death Penalty

From the beginning of a capital punishment trial, the focus of the legal process is on the perpetrator's rights. If found guilty of the crime for which he or she stands accused, and once the death penalty sentence is imposed, the subsequent legal processes and efforts continue to be focused on the perpetrator's legal rights, but gain the added dimension of his or her human rights. The victim and the victim's surviving family members' rights exist only during the investigation of the crime, when the focus is to bring the perpetrator to justice. Justice, however, is structured to protect the perpetrator's rights; the victim's rights cease once the case goes to trial. Each death sentence becomes a new argument against capital punishment by opponents of the death penalty whose advocacy is relentless. Abolitionists argue for life imprisonment, but the prison system in the United States is a system for rehabilitation and reform (Lynch, 2007, p. 14), not punishment. The argument for life imprisonment lacks the logical consideration that pure evil cannot be rehabilitated.

Proponents of the death penalty understand that rehabilitation does not work for certain perpetrators and certain acts of criminal violence. For instance, there is no rehabilitative cure for pedophiles who murder children, because before they are murderers they are pedophiles, and there is no cure for pedophilia; and there is no rehabilitative cure for serial murderers. Often the violence of these types of criminals is consistent with psychiatric diagnoses like schizophrenia, paranoia, and brain damage (Vronsky, 2004, pp. 149, 274, 278).

Opponents of the death penalty hold that putting a person to death for a horrific crime is revenge, and not justice. They argue that innocent people have been put to death as a result of unfair trials or tainted legal evidence. Yet they do not stop to consider the innocent people who will die if the death penalty is abolished (Bedau, 2008, p. 188). The concept of rehabilitation is to treat and, then, to reinsert the rehabilitated individual back into society (Mellenhoff, 2009). We cannot achieve rehabilitation without release. The idea of reinserting back into society vicious criminals on the premise that they have been rehabilitated is absurd, but it has happened time and again (Vronsky, 2004, p. 263).

The research presented here focuses on life sentences over the death penalty, and it examines the role of rehabilitation in the life of prisoners who have committed violent crimes of murder. The question that is asked here is: Do we have the right to release convicted murderers back into society when there is no certainty that they will not kill again?

History of the Death Penalty

The death penalty came to America with colonization (Bedau and Cassell, 2005, p. 16). It was what the colonizers had known as part of the legal systems from their countries of origins. Just as long, arguments against the death penalty have been made along the lines of reason (Bedau and Cassell, 2005, p. 16).

"Benjamin Rush of Philadelphia -- physician, friend of Benjamin Franklin, and one of the Founding Fathers -- was second to none as an outspoken opponent of the hangman. In 1797 he published a lecture attacking public executions under the title "Considerations of the Injustice and Impolicy of Punishing Murder by Death (Bedau and Cassell, 2005, p. 16)."

As long as the United States has existed as a Republic, there has been the death penalty, and advocates to eliminate it. Early in our history when Benjamin Rush wrote his "Considerations," the death penalty was for crimes that endangered peoples' lives, as well as murder. A horse could mean the difference between life and death to a struggling farmer, as did chickens and other live stock. There was no form of public assistance or unemployment and people found ways to survive, mostly on charity of community with one another. They could not tolerate thievery and murder, and the death penalty was probably more of a deterrent than it is today. The methods of execution were archaic and executions were held in public to serve as a warning and as a lesson learned to others. Psychiatry was a little understood or practiced art, and the concept of rehabilitation and reform did not exist. Prison was about punishment, and the punishment imposed was harsh, as were the prison conditions in which people were held to serve out their punishment. Murderers were executed.

Today, of course, executions are held out of public sight, but there is much more publicity about the event of capital punishment being carried out than there is about the crime that caused the perpetrator to be on death row. Usually, the news of horrific murders committed by asocial individuals makes community headlines and perhaps a paragraph nationally. In either case, the details of the crime are often so offensive to a person's senses that they are left out, or at the time of the reporting there is an ongoing investigation and authorities cannot release the evidence or details of the case.

The investigation and prosecution of violent crimes have become time consuming processes of the legal system, and the details of the prosecution of each individual murder that is committed usually goes unreported unless it is a sensational case or the victim was a person well-known to the public, such as a celebrity. But the execution of the perpetrator, who has spent as long as a year in jail after his arraignment or after a grand jury reviews the evidence and indicts him or her, is often nationally followed to call attention to the issue of the death penalty and to renew the debate of what many people still believe to be the wrong response to murder. The victim, the family of the victim, the police detectives and officers, and lawyers and judges who have to work the case and who suffer the psychological impact of having to review crime scene photographs, review evidence, and follow a case through prosecution are rationalized away by anti-death penalty advocates.

Lawyer turned author, Scott Turow (2004) recalls one such case of a double murder in Illinois, and remembers how his friend and colleague who followed the case and ultimately prosecuted experienced grief and sadness of the senseless tragedy of random murder. When Turow's colleagues successfully prosecuted the case to a death penalty sentence, and Turow says, ". . . In 1984, I relished their victory (p. 5)." Turow relished the victory because he watched a close friend go through the emotional investment of bringing to justice a man who had committed a pure act of evil, and a man who had crossed a forbidden line in society from which there was no turning back, and if released back into society, he would surely kill again.

In the case Turow recalled the evidence against the murderer was flawless, and involved no reasonable doubt. It is reasonable doubt and the lack of evidence that anti-death penalty advocates often point to as a reason not to carry out a death penalty. Indeed, one of the most talented and experienced lawyers in America, and a well-known figure since he teamed with O.J. Simpson's "Dream Team," Barry Scheck, is amongst the most outspoken anti-death penalty advocates in America. Scheck has overturned death penalty sentences by taking convicted perpetrator's cases on appeal, and proving that the evidence with which the perpetrator was convicted on was lacking, tainted, and in some cases manufactured.

"Scheck calls for a critical look into the death penalty in America, quoting George Will that "capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order (deathpenalty.org, 2010, online)."

Scheck's work has indeed called into question death penalty sentences that were based on poor DNA and other questionable evidence. No one wants to believe that a person who was truly innocent of a horrific crime and who was put to death for that crime was actually innocent, but it has happened, as Scheck has proven time and again. And Americans need to have confidence in our legal system, and, above all, that the people prosecuting individuals to capital punishment penalties are honest and diligent in collecting evidence and in examining evidence. There should be severe penalties for manufactured evidence that leads to capital punishment. However, today, DNA testing, properly done, is irrefutable, and the instances that Scheck will have as technology improves of overturning a death penalty on the basis of invalid or manufactured evidence will certainly become fewer and fewer. There must be oversight and people, like Scheck, who are dedicated to oversight, are performing a valuable civil service to the rest of society. But if the system is flawed, it is a two-way flaw, because frequently we hear of people who have long criminal histories as rapists and even murders being released back into society as having been reformed or rehabilitated, and they kill again or repeat their violence as rapists, and their level of violence often escalates, and manifests itself in a more horrific way than the original incident for which they were originally imprisoned for.

The problem with eliminating the death penalty is that there are people who are so evil that it defies our ability to understand the act of violence that they committed against the victim(s). One such case occurred in Connecticut in 2007, when the brutal murders of a physician's family impacted the opinions of the state's citizens so deeply that there is widespread support for the death penalty for the perpetrators of the crime (Canning, Muir, Netter, and Kamlet, 2010, online). Connecticut has a death penalty law, but has not imposed the sentence or carried out an execution in thirty-four years (Canning, Muir, Netter, and Kamlet, 2010, online). This case has changed the minds of Connecticut's citizens away from death penalty abolition.

No one argues against withholding the death penalty in cases of refutable evidence, but when the evidence is conclusive, irrefutable, as it was in the Connecticut case of the Petit family, then, there is no reason to withhold the death penalty.

Since the 1600s, even before America became a republic, the death penalty was being carried out in the colonies (Bedau, 2008, p. 5). Today, the processes and the methods of carrying out capital punishment are carried out in humane ways, mostly by lethal injections; and the last public execution occurred in Missouri, in 1937.

Rehabilitation, Reform, and Life Imprisonment

Rehabilitation, reform, and life imprisonment are consistent with the social evolution towards equality, human rights, and the notion that individuals who are asocial are that way as a result of social inequities such as poverty, neglect, substance abuse, alcoholism, and other social conditions that breed violence. Many people believe that social intervention, treatment, and curing social conditions which precipitate crime will cure the human conditions that lead people to commit criminal acts of violence. Michael J. Lynch (2007) says:

"We seem to have forgotten that the idea behind the founding of prisons in the United States was the rehabilitation and reform of inmates. Indeed, the portion of utilitarian philosophy devoted to the idea of reform and rehabilitation informed the development of America's prison system for more than a century after its founding. In the 1960s and the 1970s rehabilitation made a short-lived return, though it failed largely because of inadequate implementation and faulty fiscal investment strategies (p. 14)."

Lynch holds that the current privatization of the prison system, which is expanding under a corporate philosophy of growing business, is because we failed to adequately financially invest in the rehabilitation and reform of inmates, thus failed in rehabilitation and reform (p. 14). Lynch's claim that the current prison system has gone corporate and for-profit, and, as a result, foregone rehabilitation and reform, is a false one. While rehabilitation and reform might have been foremost on the mind of the public during the 1960s and 1970s, and less so since that time because it has largely failed; the for-profit system merely operates the prison system, expanding to accommodate larger numbers of persons being sentenced to prison terms, but has designed itself around the rehabilitation and reform concept of American prison system philosophies.

The Clinton Administration and, subsequently, the Bush Administration both made significant financial contributions to prison rehabilitation and reform. George Bush signed into law the Second Chance Act in 2008 (Travis, 2009, p. 2). President Obama has followed through on Presidents Clinton and Bush's commitment with a request for $75 million for reentry programs in the 2010 budget (Travis, 2009, p. 2). These commitments recognize that, today, more than 700,000 prisoners a year are released back into society (Travis, 2009, p. 2); many of them after having served terms for violent criminal acts, including murder. This excludes those individuals whose violence was so egregious that they were sentenced to life in prison without parole; however, many of the prisoners being released into the community are violent offenders and, according to Bureau of Justice Statistics (BJS) 67% of them will commit offenses that cause them to be incarcerated within three years of their release back into society (Travis, 2009, p. 4).

Hugo Bedau (2008) says that the data on releasing rehabilitated murderers back into society is encouraging (p. 172). He does, however, concede that statistics also show that some murderers released back into society do kill again (p. 172). Bedau citing statistics in support of rehabilitation and release cites the statistics reporting on death row inmates released back into society this way:

"While execution would certainly have prevented seven additional murders, our data also show that 551 prisoners, or 98%, did not kill either in prison or in the free community (172)."

This takes a cavalier approach to the seven murders that did occur, and it lacks consideration of the pain and suffering of the families of the victims. Bedau does not indicate the age or health of the 551 prisoners at release. However, if the inmates were death row inmates whose sentences were commuted to life, and, then, released, it would be logical to conclude that these offenders were aged and even infirm when released back into society. Bedau, however, cites the inmates' claims that the personal of experience of being on death row contributed to their reformed behavior (p. 172). He does not report on their post-release social experiences except to comment that they did not murder. Bedau is willing to sacrifice a few innocent for the greater number of offenders who might not murder again.