The Case Against Capital Punishment in the United States

Introduction: Reframing the Death Penalty Debate

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 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 clear-cut from an ethical perspective. 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 following: the arguments for the death penalty, such as crime deterrence and wide public support, are weak; 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 and some have probably been executed; there is a disturbing 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 intellectually disabled have been and continue to be executed; people accused of capital murder, who are often poor and cannot afford experienced attorneys, are frequently assigned inadequate counsel; and the most common method of execution, lethal injection, may actually be extremely painful and constitute cruel and unusual punishment.

These conditions, and many more, have led many nations to completely abolish capital punishment or, at the very least, to stop carrying out executions. They 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 it. 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 65% of Americans support the death penalty, but it is worth noting that this figure represents a sharp decrease from the 80% who supported it 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 other punishment options exist.

Research has also shown that many people who claim to support the death penalty do not feel 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). Many death penalty opponents also hold weakly held views, but the real point is that there is no strong and overwhelming support for capital punishment in America. Polls suggest that American support for the death penalty is decreasing and that even those who support it 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. However, the many studies conducted on the death penalty as a deterrent do not provide the kind of clear evidence that would support the retention of capital punishment. It is impossible to count would-be murders, so researchers are 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 shift.

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 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 both trends involved a number of other factors (Woodrow Wilson International 2006). The center specifically cites the research by Dezhbakhsh and Shepherd for misrepresenting 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. We cannot easily measure murders that did not happen, so we are left to compare data sets — such as murder rates before and after changes in capital punishment laws — that may or may not be causally related.

The end result is that we will likely never be able to convincingly prove or disprove the deterrent effect of capital punishment. But the burden of proof on this issue should rest with death penalty proponents. Because they are advocating a punishment that involves the loss of life, the burden is on them to demonstrate 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

A common argument made by death penalty proponents is that executing convicted murderers provides a sense of justice for murder victims' families. Certainly, there are some people who have lost loved ones and would like to see harm done to their killers. This is an understandable human emotion, even if it carries an element 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 opposed 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).

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 opposed 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 those made by other victims' relatives who oppose capital punishment.

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 heinous crimes. A compelling example is the 1985 murder of convenience store clerk Cynthia Barlieb, whose case was prosecuted by a district attorney determined to secure execution for her killer (Pompeilio 2005). The original trial and all subsequent appeals forced Barlieb's family — including four young daughters — to endure 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 cannot advocate capital punishment under the guise of protecting the interests of victims' families and then exclude those family members from the process when they do not support the death penalty. It is especially troubling to pursue a death penalty sentence against the wishes of victims' families when that pursuit will force them to remain 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. 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 investigation, including the ability to test DNA to establish whether someone was present at the scene of a crime. Prior to DNA evidence, murder convictions were dependent on other types of physical evidence and more unreliable forms of proof, such as eyewitness testimony. Now, DNA testing can often determine 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, it must be borne in mind that they are somewhat understated. 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 his innocence following 16 years of incarceration (ACLU 2002). The American Civil Liberties Union has argued that Washington is intellectually disabled and was coerced into a confession by Virginia police (ACLU 2002).

Prisoners who cannot take advantage of DNA testing must hope for other means of exoneration. One such prisoner 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 from post-traumatic stress disorder (Johnson 2006). Another well-known case involved Anthony Porter of Illinois, who was exonerated by another man's confession just days before he was scheduled to be executed in 1999, leading the state to call a moratorium on executions (Walker 2006).

The point is clear: there is irrefutable evidence that innocent American citizens have been sentenced to death, and some have been fortunate enough to prove their innocence before being executed. But we must also assume that innocent people have been executed in America. Before DNA testing became available, exoneration for many of these individuals would have been impossible. It is logical to conclude — if we consider all Americans executed before DNA testing existed — that some of those people were innocent. Even death penalty supporters would have to agree that this is clearly morally wrong.

Conclusion

The death penalty has caused a significant moral debate in American society, although many other nations have no such qualms about declaring the practice immoral. Amnesty International points out that there has been a significant trend over the past half-century, with many nations outright abolishing the death penalty or, at least in practice, refusing to implement it (Amnesty International 2006).

When one looks at the list of nations that still allow the death penalty for ordinary crimes, it reads like a roster of the world's worst human rights observers. The United States has the distinct shame of being placed on this list alongside nations such as Afghanistan, China, Iran, Liberia, North Korea, Rwanda, and Syria (Amnesty International 2006). The moral weight of the world is turning against the death penalty, and there are many clear reasons the United States should follow suit.

American society needs to accept that the philosophical debate over whether it is ever justified to take a life will never be settled by complete consensus. Philosophers have debated everything from war to capital punishment for centuries without achieving resolution on the permissibility of taking life.

The problem is that we have been asking the wrong questions. As we examine capital punishment in America, we need to understand the clear inadequacies in how it is administered. Perhaps we can reach some form of consensus that these inadequacies are not morally permissible, and that they argue strongly for the abolition of the death penalty.

One of the most significant inadequacies is that the death penalty does no demonstrable public good. Capital punishment supporters have argued that it is a publicly supported punishment that deters crime, even though public support is waning and the studies purporting to show a deterrent effect are badly flawed (Callahan 2006; Woodrow Wilson International 2006). In fact, the majority of Americans do not support the death penalty when life in prison is offered as an alternative, and even those who do support it are not steadfast in that support (Callahan 2006).

Death penalty supporters have also argued that capital punishment delivers justice for the families of murder victims. However, research has shown that victims' families are often completely disregarded by prosecutors when they do not support the death penalty. In short, victims' families are being used as tools to secure death penalty sentences and, when those family members will not prove useful, they are discarded. This presents clear moral problems that undermine any argument that the death penalty exists to provide justice for the loved ones of murder victims.

The death penalty also creates the possibility of executing innocent people. DNA analysis has overturned several death penalty convictions since it became available, allowing us to infer that, before such science existed, innocent people were likely executed. Even in cases where DNA evidence was not involved, people have sat on death row for years before someone else confessed to the crime. The fact is that people are sometimes wrongly accused and convicted, and when those people are executed there is no way to undo the mistake.

The death penalty also discriminates. A disproportionate number of people of color have been executed or await execution, and there is clear evidence that racism infiltrates American juries (ACLU 2006). Furthermore, vulnerable groups such as the intellectually disabled and the mentally ill have been executed and, in some cases, continue to be, even though they may be far more likely to falsely admit to crimes they did not commit (Chemerinsky 2006).

The death penalty discriminates against the poor as well. People who cannot afford experienced defense attorneys are often assigned ineffective counsel or are forced to conduct their legal defense on a severely restricted budget. There are many documented examples of clearly inadequate representation in death penalty cases, yet these appeals are difficult to win because attorneys are granted wide latitude in choosing their strategy.

Finally, lethal injection — the most common form of execution — may constitute cruel and unusual punishment, as medical experts believe that a paralysis drug may simply be masking intense pain experienced by those being executed.

Quite clearly, the capital punishment system in America functions poorly and allows innocent people — and society's most vulnerable people — to be targeted. We can likely all agree that this is morally wrong, even if we never completely agree on whether killing is ever justified. The death penalty is riddled with too many serious problems to ever function fairly, and the arguments used to prop it up are easily discredited. As long as the death penalty exists in America, it will target vulnerable groups and present the risk of executing innocent people. These risks cannot be accepted, and the only way to mitigate them is to completely abolish capital punishment in America.