Arguments for abolishing capital punishment in the United States

¶ … Capital Punishment Should Be Abolished in the United States

You have heard the law that says the punishment must match the injury: 'An eye for an eye, and a tooth for a tooth.' -- Matthew 5:38

Thou shalt not kill. -- Exodus 20:13

The epigraphs above make it clear that even the Holy Bible has vastly different things to say about the death penalty depending on the context. As an ultimate and irreversible punishment, though, it is important for Americans today to fully understand the implications of the imposition of the death penalty, including most especially its effectiveness as a deterrent to crime as well as the potential for innocent people being executed (Mannes & Ingaglio, 2015). In fact, some researchers have suggested that as many as one in 25 prisoners on death row is innocent, while others argue that although the figures could be even higher, it is impossible to know for certain just how many innocent people have been executed mistakenly in the past and how many more death row inmates will have to die unjustly before the practice is abolished nationwide. To determine the facts, this paper reviews the relevant literature concerning capital punishment concerning these issues to explain that the practice should be completely abolished in the United States, including an examination of the rationale in support of its use over time. Finally, a summary of the research and important findings concerning capital punishment, its history in the U.S. and its effectiveness as a deterrent to crime are presented in the paper's conclusion.

Review and Analysis

As the ultimate punishment, it is little wonder that the appropriateness of the death penalty has been the subject of debate since it has first been used. In this regard, Lulliano (2015) emphasizes that, "The death penalty is the worst punishment society can inflict upon one of its members. It is the most powerful act of reprobation -- the ultimate sign of condemnation for a fellow human" (p. 1377). Indeed, the debate over the appropriateness of capital punishment in the United States is certainly not new. In fact, as early as 1612, Virginia's governor "enacted the Divine, Moral and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, and trading with Indians" (History of the death penalty, 2015, para. 2).

While these may seem like trivial offenses undeserving of the death penalty to observers in the 21st century, these early settlers of the American wilderness were faced with a wide array of threats to their survival, including starvation if their food sources were plundered. Likewise, Native Americans represented another threat to their survival, making the death penalty seem far more appropriate to that day and age. These types of threats to survival, though, have long since vanished from the American landscape, and the types of crimes that are now regarded as capital offenses have been drastically narrowed over the years (History of the death penalty, 2015) until the U.S. Supreme Court weighed in on the issue in the mid- and late 20th century (Huffman, 2008).

As early as 1958, the U.S. Supreme Court was considering the constitutionality of the death penalty for capital crimes. In this regard, Baik (2012) reports that, "There are many arguments for and against capital punishment in the United States but the most notable standard for determining the constitutionality of capital punishment was noted by Chief Justice Warren in Trop v. Dulles [in] 1958" (p. 80). In this case, Warren argued that the meaning of "cruel and unusual" punishment should be settled by the "evolving standards of decency" and accordingly, the U.S. Supreme Court has responded to domestic and international pressures in capital punishment cases

In 1972, the U.S. Supreme Court holding in the seminal case, Furman v. Georgia, set the stage for the modern debate over the appropriateness of capital punishment in a modern society. In the Furman case, the Court held that "unfettered capital sentencing discretion [was] unconstitutional" and "by failing to provide safeguards against arbitrary sentencing decisions, capital punishment statutes like Georgia's violated the Eighth and Fourteenth Amendments" (Huffman, 2008, p. 1140). The impact of the Court's Furman ruling was profound, immediate and ubiquitous, and essentially voided all death penalty statutes throughout the United States in 1972, beginning a moratorium on capital punishment that would last for 4 years (Huffman, 2008).

In 1976, the moratorium ended with the Court's holding in Gregg v. Georgia based on revisions in Georgia's capital sentencing regimen (Huffman, 2008). In this regard, Huffman reports that, "Specifically, the Court found that the Georgia statute satisfied the constitutional mandate identified in Furman: to withstand Eighth Amendment scrutiny, a capital punishment statute must provide 'clear and objective' standards for determining death-eligibility" (2008, p. 1140). It is noteworthy that in Gregg, the classification of capital punishment as being cruel and unusual punishment was categorically rejected by the Court, making this the first time the Court had specifically held that capital punishment "does not invariably violate the Constitution" (cited in Huffman, 2008, p. 1141). As a direct result of this holding by the Court, dozens of states have reinstated capital punishments since 1972 by developing death penalty statutes that conformed to the criteria set forth in Furman and Gregg as well as subsequent cases (Huffman, 2008).

Not surprisingly, capital punishment, or the death penalty, is reserved for the severest types of crimes today. For instance, according to the definition provided by Black's Law Dictionary (1990), capital punishment is "punishment by death for capital crimes" (p. 209). In this context, capital crimes include "those for which the death penalty, but need not necessarily, be imposed" (p. 209). As the research will show, though, the rationale in support of the use of capital punishment is flawed because the practice is not an effective deterrent to capital crimes. According to the death penalty information center (DPIC), as of July 2015 the U.S. currently has 31 states that allow the use of capital punishment; however, of these, four states are in an imposed moratorium which means that the death penalty will not be used for reasons articulated by the respective governors of these states (States, 2015).

The states that currently allow capital punishment, those that do not, and the four with governor-imposed moratoriums are depicted in Figure 1 below.

Figure 1. State breakdown of capital punishment

Source: DPIC, 2015

As shown in Table 1 below, there are hundreds of people awaiting the execution of their death sentences across the country (updated 1 April 2015 from the Facts section of DPIC, 2015).

Table 1

Current listing of death row prisoners in the U.S.

State

Number of Death Row Prisoners

California

Oklahoma

48

Kansas

10

Florida

Mississippi

48

Utah

9

Texas

South Carolina

44

Washington

9

Alabama

Oregon

36

Virginia

8

Pennsylvania

Arkansas

35

U.S. Military

6

North Carolina

Kentucky

34

South Dakota

3

Ohio

Missouri

33

Colorado

3

Arizona

Delaware

17

Montana

2

Georgia

85

Indiana

14

New Mexico

2

Louisiana

85

Connecticut

12

Wyoming

1

Nevada

78

Idaho

11

New Hampshire

1

Tennessee

73

Nebraska

11

TOTAL

3,002

Source: DPIC, 2015

As can be readily seen from the state-by-state breakdown of death row inmates in Table 1 above, thousands of condemned prisoners languish on death row across the country, and 1,413 others have been put to death since 1976 (DPIC, 2015). It is also noteworthy that states vary in what types of crime that qualify for the death penalty, with "first-degree murder," "capital murder," and "intentional murder" being common among states that allow capital punishment, but other crimes that qualify for the death penalty in some states are less severe, including the following set forth in Table 2 below.

Table 2

Capital crimes other than murder by state

State

Capital Crime(s)

California

Sabotage; train wrecking causing death; treason; perjury causing execution of an innocent person; fatal assault by a prisoner serving a life sentence

Florida

Capital drug trafficking; capital sexual battery

Idaho

First-degree kidnapping; perjury resulting in the execution of an innocent person

Kentucky

Capital kidnapping

Montana

Aggravated kidnapping; aggravated sexual intercourse without consent

Wyoming

Sexual abuse of a minor, arson, robbery, burglary, escape, resisting arrest, kidnapping, or abuse of a minor under 16 years old

Source: The Bureau of Justice Statistics, Capital punishment 2014

Certainly, none of the foregoing crimes can be regarded as minor or trivial, but the fact that there is such a high degree of variance in the definition of capital crimes across the country should be a source of concern for criminal justice authorities searching for optimal approaches to reducing crime rates. According to a survey of former and current presidents of the country's top academic criminological societies, though, the overwhelming majority (88%) of these experts rejected the notion that the death penalty acts as a deterrent to capital murder (Radelet & Lacock, 2009).

Perhaps the biggest gun in the capital punishment supporters' arsenal is the irrefutable fact that once they are executed, condemned prisoners can never reoffend and is therefore an absolute guarantee of deterrence. For instance, Mannes and Ingaglio (2015) report that, "One argument in support of the death penalty rests on predictions of future dangerousness. However, some researchers have questioned the relative dangerousness of different categories of inmates and have suggested that the death penalty may be obsolete" (p. 351). In fact, innovations in forensic science technologies, most especially DNA analysis, have shown that fully one-in-25 people, or about 4.1%, who have been sentenced to death in the United States since 1973 were actually innocent. For instance, a report by Levy (2014) emphasizes that, "Since 1973, 144 people on death row have been exonerated. As a percentage of all death sentences, that's just 1.6%. But if the innocence rate is 4.1%, more than twice the rate of exoneration, an untold number of innocent people have been executed" (para. 2).

The statistics compiled by the Innocence Project indicate that although more than 300 condemned prisoners have been exonerated as a result of new DNA evidence, at least 18 of these prisoners were forced to spend some length of time on death row (Mannes & Ingaglio, 2015). Moreover, although African-Americans only comprise around 12% of the general U.S. population, the make up more than 33% of the prisoners currently condemned to die in the prison population (Mannes & Ingaglio, 2015). As Mannes and Ingaglio conclude, "Based on these inequities and statistics, the necessity of rethinking the death penalty becomes evident" (2015, p. 351).

Although the precise numbers of innocent people who have been executed in the United States over the years may never be fully known, it is reasonable to conclude that based on these percentages, the numbers are not only unacceptable, they are downright alarming. Most recently, in May 2014, Jermaine Wright, the longest death row resident in Delaware was granted a new trial after serving 23 years in prison for the murder of a clerk during a liquor store robbery (Mannes & Ingaglio, 2015). At his new trial, Mr. Wright was found not guilty of these charges due to extenuating circumstances, including most especially the withholding of exculpatory evidence by the prosecution, and he has since been released from prison (Mannes & Ingaglio, 2015).

Indeed, the argument can be made that state and federal governments are committing the very same types of capital crimes that they are executing these innocent people for by taking their lives unjustly, but governorships change hands and newly elected officials can claim their hands are clean because these actions were taken before they assumed office. Moreover, some authorities believe that the innocence rate of condemned prisoners may even be higher than 4.1%, making capital punishment a fundamentally inappropriate punishment given its finality and irreversibility (Levy, 2014).

Can a modern society that regards itself as enlightened and compassionate continue to allow these types of miscarriages of justice persist? Some critics of the death penalty argue that as long as capital punishment continues to be allowed for any types of crime, the United States remains associated with totalitarian regimes such as China, Iran and Saudi Arabia where basic civil liberties are ignored in the hasty pursuit of seeming justice at any price. For instance, Baik (2012) reports that, "A majority of western democracies reject capital punishment in law or practice and in 1999, the U.N. Commission on Human Rights called for a worldwide moratorium on executions" (p. 80). In fact, the UN Secretary-General, Ban Ki-moon made it clear how the international community is regarding capital punishment when he stated, "The death penalty has no place in the 21st century" (Ki-moon, 2015, para. 1). In response to the UN's call and the growing recognition among national policymakers that capital punishment is an obsolete practice that should be relegated to the Dark Ages, more than 160 nations have abolished the death penalty in recent years or no longer practice it (Ki-moon, 2015). It is especially noteworthy that the abolishment of the death penalty is one of the few commonalities shared by these countries. In this regard, UN Secretary-General Ki-Moon adds that, "More than 160 Members States of the United Nations with a variety of legal systems, traditions, cultures and religious backgrounds, have either abolished the death penalty or do not practice it. Yet, prisoners in a number of countries continue to face execution" (2015, para. 3).

Despite these trends and calls for a moratorium by the UN, the United States remains one of the few countries in the entire world to continue to use capital punishment, purportedly as a deterrent to crime. In this regard, Baik (2012) adds that, "The United States accounts for a majority of executions with three other countries -- China, Iran and Saudi Arabia" (p. 81). It is reasonable to suggest that many Americans do not want to be lumped together with these countries and their sad track record of human rights abuses, but the harsh reality is that not only is the U.S. smack-dab in the middle of these countries in practicing capital punishment, it is among the countries that use it the most. For instance, Saul (2015) reports that in 2014, "Aside from China, Iran at 289 officially recorded, Saudi Arabia [with] at least 90 and the U.S. at 35 continue to execute the highest number of people" (para. 4).