Death Penalty (Anti) Historically, Much

Death Penalty (Anti)

Historically, much of the debate over capital punishment has focused on the core moral issue of whether it is right to take a life as a punishment for murder. This moral debate is important and necessary, but because a variety of cultural factors influence a society's sense of morality, it is unlikely that any society can ever reach a complete consensus on this key question. To borrow from Judeo-Christian ideology, there are some who believe in the philosophy of "an eye for an eye" and others who believe in "turn the other cheek," and defend the sanctity of life, under all conditions.

The goal of this paper is to move the debate on the death penalty beyond the core moral issue of whether it is ever permissible to intentionally kill, and toward an ethical debate on how the death penalty is administered in the United States. While the American public may never completely agree on whether death is a justifiable punishment for murder, there may be some issues surrounding the administration of the death penalty that are more black and white from an ethical perspective. And these issues, jointly and separately, make a compelling case for abolishing capital punishment as a sentencing option in the United States.

Among the many problems with the administration of capital punishment in the United States are:

The arguments for the death penalty, such as crime deterrence and wide public support, are flimsy.

Death penalty supporters argue that victims' families deserve justice, but prosecutors often ignore families' wishes to spare defendants lives.

Cases have been overturned by DNA technology and other forms of exoneration, demonstrating that many wrongly convicted people have been placed on death row, many are likely still on death row, and some have probably been executed.

There is a frightening racial component to the death penalty, and people of African-American descent are much more likely to be sentenced to death.

People who are mentally ill or retarded have been and continue to be executed.

People accused of capital murder, who are often poor and can not afford high-priced attorneys, are frequently assigned inexperienced and ineffective counsel.

The most common method of execution, lethal injection, may actually be extremely painful and constitute cruel and unusual punishment.

These seven conditions, and many more, have led many nations to completely abolish capital punishment or, at the very least, to stop carrying out executions. These factors also present a strong justification for ending the practice of capital punishment in the United States.

Does the death penalty deter crime - and do Americans really support it?

Supporters of the death penalty in America frequently argue that capital punishment powerfully deters would-be murderers, and that the American public widely supports the death penalty. In fact, we must concede that there is evidence that supports both of these arguments, but that evidence is hardly unassailable and is, in fact, quite weak.

For example, death penalty proponents cite a 2005 Gallup survey that found that 65% of Americans support the death penalty, but it is worth noting that this figure represents a sharp decrease from the 80% supporting the death penalty in a 1983 poll (Callahan 2006). Further, when life in prison is offered as an alternative punishment option, support for the death penalty slips below 50% (Callahan 2006). In short, there is no mandate among the American people in support of capital punishment, particularly when there are other punishment options.

In fact, we can take this argument a step further and point out that research has shown that many people who claim to support the death penalty do not feel that strongly about their position. A study by Unnever, et. al. found that when asked whether their support or opposition to the death penalty is strong or not strong, a large portion of the American public answers 'not strong' (Unnever, et.al. 2005). It is interesting here to note that many death penalty opponents also have weakly held views, but the real point to distill from this research, again, is that there is no strong and overwhelming support for capital punishment in America. Polls suggest American support for the death penalty decreasing and that even those who support capital punishment are not zealous defenders of the practice.

But doesn't the death penalty deter crime? Death penalty supporters have argued that the threat of this ultimate punishment may lead would-be killers to change their minds, thus saving lives. But the many studies that have been done on the death penalty as a deterrent do not provide the type of clear evidence that would support the retention of capital punishment. In short, it is impossible to count would-be murders, so we're only left to compare data in states or countries before and after the death penalty is either enacted or abolished. This is a flawed process, as a great number of factors, such as economic unrest, increases in drug addiction, or even single events such as school shootings or riots, can cause murder rates to jump.

Still, numerous researchers have attempted to quantify whether capital punishment deters people from murdering. A particularly ambitious study by Dezhbakhsh and Shepherd looked at murder rates over 40 years in all 50 states, applying 96 regression models to find what the authors deemed a "robust" connection between the death penalty and reduced murder rates (Dezhbakhsh and Shepherd 2006).

However, research by the Woodrow Wilson International Center for Scholars has found that murder and execution data, particularly when the 1960s are included, are often misrepresented (Woodrow Wilson International 2006). The center points out that the country experienced a surge in murders after 1962 and a reduction in executions starting in 1978, and that the two events involved a number of other factors (Woodrow Wilson International 2006). The center goes on to specifically cite the research by Dezhbakhsh and Shepherd for misrepresenting the data from the 1960s and for failing to explain why there were also surges in murder rates in states where there was no change in death penalty laws (Woodrow Wilson International 2006).

In short, scholars have found problems with just about every study ever done on the deterrence effect of the death penalty and, frankly, this will likely always be the case. The simple fact is that we can not easily measure murders that did not happen, so we are left to simply compare data sets (such as murder rates before and after changes in capital punishment laws) that may or may not be related.

The end result is that we will likely never be able to convincingly prove or disprove the deterrent effect of capital punishment. but, really, the burden of proof on this issue should be on death penalty proponents. Because death penalty proponents are advocating a punishment that involves a loss of life, the burden is on these proponents to prove that there is some resulting social good. As has been established, this proof has not been convincingly presented and likely never can be.

Arguments on behalf of victims' families ring hollow common argument made by death penalty proponents is that executing convicted murderers provides a sense of justice for murder victims' families. and, certainly, there are some people who have lost loved ones who would like to see harm done to their killers. This is an understandable human emotion, even if it smacks of vigilante-style justice.

However, a fundamental problem with the notion of executing murderers as a type of justice for victims' families is that the wishes of those family members can easily be disregarded during the trial process. A prosecutor may decide to give weight to the wishes of a victim's family, but the prosecutor is equally free to completely disregard those wishes.

Consider, for example, the case of Ricky Langley, who molested and killed a child in Louisiana in the early 1990s. The victim's mother wished to provide a victim impact statement saying that she was opposed to the death penalty and did not want Langley executed, and the prosecutor responded by appealing the judge's decision to let her speak (Lupo 2003).

In fact, according to Murder Victims' Families' for Reconciliation, an anti-death penalty group that counsels victims' families, it is not uncommon for prosecutors to ignore families' wishes or to deny them the right to speak. For example, in the case of Victoria Lamm, who was murdered in Nebraska in the 1980s, a prosecutor allowed a pro-death penalty sibling to address the court, but would not permit another sibling, who was opposed to the death penalty, to speak (Murder Victims' Families' for Reconciliation 2002).

In another case, a Texas prosecutor reportedly cut off all communication with Jeanette Popp after she said she would not support the death penalty for her daughter's murderer (Murder Victims' Families' for Reconciliation 2002). Popp's claims are similar to claims that have been made by other victims' relatives who oppose the death penalty.

Sometimes, victims' families oppose the death penalty because they know that pursuing capital punishment will result in years of appeals, preventing the family from moving on with their lives and forcing them to constantly revisit courtrooms and relive the heinous crimes against their loved ones. A good example is the 1985 murder of convenience store clerk Cynthia Barlieb, whose murder was prosecuted by a district attorney bent on securing execution for Barlieb's killer (Pompeilo 2005). The original trial and all the subsequent appeals forced Barlieb's family, including four young daughters, to spend 17 years in the legal process - her oldest daughter was 8 years old when Cynthia was first shot, and 25 when the process ended without a death sentence (Pompelio 2005). During those 17 years, Cynthia Barlieb's family was forced to repeatedly relive her murder.

When a person is murdered, it is understandable that American society demands justice, particularly on behalf of the victim's family and loved ones. But we can not advocate capital punishment under the guise of protecting the interests of victims' families, and then cut those members out of the process when they do not support the death penalty. and, yet, there are many examples of this occurring. It is especially heinous to pursue a death penalty sentence against the wishes of victims' families when the pursuit of that sentence will force the victims' families to be part of the legal process for years.

In the end, pursuing the death penalty is not about protecting the rights of victims' families - it is a matter of prosecutorial ambition and discretion. And that, by itself, is not nearly enough to construct an ethics-based defense of capital punishment.

The wrongly accused: DNA and other exonerations

The last quarter of the 20th century ushered in a variety of technological innovations in crime scene investigating, including the ability to test DNA to establish that someone was at the seen of a crime. Prior to DNA evidence, murder convictions were dependent on other types of physical evidence and more shaky forms of proof, such as eyewitness testimony. Now, DNA testing can often detect whether a person accused of a crime was at the scene - or whether he or she was not.

Naturally, many Americans were sentenced to death before DNA technology was available, and those who have not yet been executed have often used the new technology to establish their innocence. According to the Death Penalty Information Center, since 1973-122 death row inmates in 25 states have been exonerated, often through the use of DNA evidence (Walker 2006).

As startling as these numbers are, we must bear in mind that they are somewhat blunted. Death row inmates can only overturn their convictions through DNA testing when items containing DNA (such as hair, blood or semen) were collected and are still available to be tested.

One death row inmate cleared by DNA testing is Earl Washington, who was sentenced to death for the rape and murder of a woman, but was pardoned after DNA evidence proved him innocent after 16 years of incarceration (ACLU 2002). The American Civil Liberties Union has argued that Washington is retarded and was bullied into a confession by Virginia police (ACLU 2002).

Prisoners who can not take advantage of DNA testing have to hope for other miracles. One of those prisoners was Juan Melendez, who spent 18 years on Florida's death row before another person confessed to the crime (Johnson 2006). Melendez lost a wife and three children and still suffers post-traumatic disorder (Johnson 2006). Another famous case involved Anthony Porter of Illinois, who was exonerated by another man's confession days before he was scheduled to be executed in 1999, leading the state to call a moratorium on executions (Walker 2006).

The point is, there is irrefutable evidence that innocent American citizens have been sentenced to death, and that some have been fortunate enough to prove their innocence before being executed. But we must assume that innocent people have been executed in America. For example, DNA evidence has been used to overturn murder convictions in cases where the accused would have otherwise been executed. Before such testing was available, exoneration for these people would have been impossible. It is logical to assume, if we consider all of the Americans who were executed before DNA testing became possible, that some of those people were innocent. Even death penalty supporters would have to agree that this is clearly morally wrong.

Racism and the death penalty

Besides exhibiting the potential for executing innocent people, capital punishment in American has proven to be racially biased. Data show that racial discrimination often finds its way into American courtrooms and that skin color plays a significant role in who receives the death sentence and who is spared execution.

According to the American Civil Liberties Union, people of color have accounted for 43% of all executions since 1976, and 55% of all people currently awaiting executions - statistics that are disproportionate to the percentage of the general population that consists of people of color (ACLU 2006). Further, ACLU points out that although white people account for half of all murder victims, 80% of all capital punishment cases involve white victims (ACLU 2006). There seems to be a greater tendency to pursue the death penalty when a white person has been killed.

Quite simply, race has a tremendous effect on trial attorneys and even the juries themselves. It is an open secret that prosecutors and defense attorneys 'jury shop' by race - if an African-American is on trial for capital murder, a prosecutor may try to assemble a predominantly Caucasian jury and a defense lawyer may try to do the opposite. In fact, in the case of Miller-El v. Dretke in 2004, the U.S. Supreme Court overturned a death sentence because prosecutors obviously tried to exclude African-Americans from the jury and even asked different questions, depending on a potential juror's race (Chemerinsky 2006).

Racial bias has been a part of capital murder trials for some time. Research by Minkes and Vanstone into capital murder cases during the 1950s that resulted in executions found that racial biases and stereotypes were commonly allowed to infiltrate routine courtroom arguments (Minkes and Vanstone 2006). In short, those accused of capital murder are prosecuted and judged by other human beings who bring their personal biases into the process.

In fact, racial biases are common among juries. The reason prosecutors and defense attorneys shop for juries by race is because it works. Dezhbakhsh and Shepherd point out that when states began in the 1960s to give juries authority to impose the death penalty, the process became completely arbitrary, influenced by the various biases of the jurors (Dezhbakhsh and Shepherd 2006). Research by Antonio has shown just how arbitrary juries are, proving that life and death decisions are often made by jurors based on such simple criteria as how emotionally engaged the jurors perceive the defendants as being (Antonio 2006). Naturally, this opens doors to discrimination, as members of various cultures may be conditioned to handle the shame or tragedy of a criminal trial dissimilarly (Antonio 2006).

One might argue that such racial biases could influence individual jurors, but what are the chances that an entire jury would be tainted by racial bias? The rebuttal to that argument is simple: the entire jury does not have to be tainted. In Florida, for example, once a defendant has been convicted of murder, it only takes a simple majority of the 12 jurors to recommend execution in order for a death sentence to be handed down (Taylor 2006). In Florida, it only takes one racist juror to swing a jury recommendation from life in prison to death.

The criminal justice system is run by people and, as such, will always be imperfect. As long as there are racial biases in America, such biases will find their way into courtrooms. It is particularly troubling that the opportunities for these biases to affect a murder trial are so pervasive. From jury selection to deliberations, race can and does play a significant role in capital murder cases. And the results are clear - a disproportionate percentage of people of color are being executed.

The death penalty is not just theoretically racist - it is quantifiably racist, which presents a strong argument for the abolition of the death penalty.

Executing the mentally and psychologically incompetent

The administration of capital punishment in America has not only resulted in discrimination against people of color, it also has resulted in the execution of the mentally and psychologically incompetent. People who are mentally ill or even retarded have been sentenced to death and even executed, as attorneys and juries employ an overly simple standard such as whether the person knew right from wrong. This burden is unreasonably low - after all, many young children know right from wrong, but we would be hard pressed to find Americans who advocate the execution of young children.

Many states impose death sentences on convicted murderers who are demonstrably mentally or psychologically incompetent, and these cases sometimes reach the U.S. Supreme Court. In his research on Supreme Court death penalty decisions under the leadership of Chief Justice William Rehnquist, Chemerinsky points out that the Supreme Court has been busy over the past five years trying to prevent states from executing the mentally and psychologically unfit (Chemerinsky 2006).

For example, in 2002 the Supreme Court overturned several death sentences on the grounds that executing groups such as the mentally retarded constituted cruel and unusual punishment, although there were remarkably still three dissentions (Chemerinsky 2006). Importantly, in its decision the Supreme Court pointed out how most civilized nations consider executing the mentally retarded a heinous act and that people with mental disabilities are far more likely to falsely admit committing a crime (Chemerinsky 2006).

So, at least for the past five years, there has been legal protection against executing retarded individuals, assuming there is a consensus that an individual is retarded, which is not always the case. But what happened to mentally retarded people sentenced to die before this nationwide protection was enacted? Quite certainly, some of them were executed. For example, in 1995 Texas executed Mario Marquez for rape and murder, even though the state agreed with defense assertions that Marquez was retarded (Bonner 2001).

And, certainly, there are many cases where the mentally ill have been executed, particularly because prosecutors and defense attorneys can not always agree when someone is insane, as there is some subjectivity involved. Experts say states are not sure where to draw the line that would determine when someone with mental problems has crossed over into insanity. and, as the debate continues, mentally ill people are executed.

One example is Kelsey Patterson, who was executed by Texas in 2004 despite being diagnosed as a paranoid schizophrenic, spending his life in and out of mental institutions, and insisting until his execution that he had a radio-controlled chip implanted in his body (Malone 2005). In 2002, Texas executed Monty Allen Delk, who believed he was the president of Kenya and a nuclear submarine commander from the Civil War, and whose insanity claims were backed by the chief prison mental health officer (Hawkins 2002).

Arguably, the retarded and the mentally ill are two of American society's most vulnerable groups, and it is unreasonable to hold these groups to the same standards as mentally and psychologically average adults. Historically, however, the death penalty has not made such distinctions and has executed retarded and insane individuals. Only recently have some protections been enacted at the federal level, and these protections are still not a fail-safe and they still do not protect people with crippling psychological disabilities.

The fact that capital punishment does not make allowances for some of society's most vulnerable groups, such as the psychologically ill, is yet another reason the death penalty is morally indefensible.

Ineffective counsel

When celebrities such as Robert Blake or O.J. Simpson are charged with murder, it is not uncommon for millions of dollars to be spent on their defense. While we may not expect such extremes when poor or middle-class people are charged with murder, we would expect that these defendants would at least have competent legal representation. Quite clearly, this is often not the case.

For example, the state of Florida allocates only $3,500 for a person to defend themselves against murder charges when a private lawyer can not be afforded and a public defender is unavailable (Payne 2006). That is, in fact, much less than what one might expect to pay for a reliable used car, and yet it is all the money that is allocated for people trying to save themselves from execution. Further, the state also caps how much can be spent by the defense on appeal (no such cap exists for the prosecution), resulting in what State Supreme Court Justice Raoul Cantero has referred to as "some of the worst lawyering" he has ever witnessed (Payne 2006).

Not surprisingly, defendants sentenced to death have often argued that their trial counsel was ineffective, and on many occasions appeals courts have agreed. President George W. Bush, an ardent supporter of the death penalty, even seemed to agree in his 2005 State of the Union when he spoke about the need for people on trial for their lives to be represented by effective counsel (Walker 2006).

And, really, the stories about shoddy legal representation during capital murder cases are numerous and terrifying. In one example, Rompilla v. Beard, the U.S. Supreme Court overturned a death penalty conviction because the defense attorney failed to read a file on the defendant's prior convictions, which were obviously going to be discussed at the trial (Chemerinsky 2006). In 2002, the Supreme Court upheld a Texas court's decision to overturn a death sentence for Calvin Burdine, whose attorney slept through portions of his trial (ACLU 2002).

Put simply, all lawyers are not created equal. The issue of ineffective counsel can not be solved by simply raising the amount states are willing to spend on defense efforts, because the state, if it so chooses, can almost always outspend the defense. Wealthy people can at least endeavor to keep the spending race close, but poor people have no such options. They must choose between spending their own meager resources on their defense, and accepting whatever financial or legal assistance the state provides. Either choice seems perilous.

Clearly, the death penalty in America is inherently biased against the poor. On many occasions, this bias has resulted in claims of ineffective counsel that provide some egregious examples of legal incompetence. And yet, as Chemerinsky points out, the ineffective counsel claim is still notoriously difficult to prove, as courts often give defense counsel wide latitude to select, and ultimately defend, their choice of strategy (Chemerinsky 2006).

So, for every death penalty conviction that is overturned because of ineffective counsel, there are certainly convictions that are allowed to stand even though the counsel was arguably ineffective. Americans have been, and will likely continue to be, executed even though they were not provided a high-quality defense. This unequal access to quality defense creates an economic bias in capital punishment that argues strongly for its abolition.

Methods are not as painless as some argue

Death penalty supporters tout America's most current form of execution, lethal injection, as an almost serene experience where a person is put to sleep and then killed by a cocktail of drugs that stop respiratory and cardiac function. In fact, supporters may argue that lethal injection is a far cry from the firing squads or hangman's noose of old, and that it is designed to reduce or eliminate physical suffering.

But is it really? Consider a person being executed by firing squad - waiting nervously for the moment of death, and then experiencing terrible pain as the bullets tear through the flesh. Opponents of lethal injection say the experience is not terribly different.

As this paper is being written, lethal injection is being challenged in California as a cruel form of execution that is not all it purports to be. The process of lethal injection involves the injection of three drugs; one puts the person to sleep; one creates paralysis; and one stops respiratory and cardiac function. However, U.S. District Judge Jeremy Fogel agreed to hear death row inmate Michael Morales's death row appeal because of evidence that six California inmates were executed even though the first drug failed to render them completely unconscious (Callahan 2006).

Attorneys and medical experts say a variety of factors, such as low drug dosages and poorly trained prison personnel, may lead to the drugs not working effectively, which would cause prisoners to feel intense pain and a feeling of drowning (Callahan 2006). Dr. Mark Heath, a professor of anesthesiology at Columbia University Medical School, testified at the appeal that people being executed may not be deeply unconscious - or even unconscious at all - and that they may be experiencing intense pain that is being masked to observers by the paralyzing drug administered as the second step of the process (Dolan and Weinstein 2006).

In essence, if these claims are true, execution has not come far from the days of the firing squad or hangman's noose. Patients are still being put through intensely painful experiences - the process has simply been legitimized by the hospital-like environment that is now part of the execution process. Sister Helen Prejean, the nun whose crusade against the death penalty was the subject of the book and movie "Dead Man Walking," believes that the more people learn about death penalty processes, the more they will be convinced that there is no such thing as a 'humane' way to execute someone (Callahan 2006).