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IntellectualLoafing.com: The Death Penalty - A Balanced Debate. An even two-sided essay covering all the major issues including discrimination, deterrence, life without parole and the risk of executing the innocent. Concludes with a series of questions enabling readers to reach their own logical opinion.
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The advocation of the death penalty is not a simple question, despite its almost immediate dismissal by most modern liberal thinkers. During the generally supported air campaign’s over Baghdad during the Gulf War and Belgrade during the Kosovo conflict completely innocent people were killed. Although the deaths were unintentional they were inevitable; a necessary sacrifice. How is it therefore that many people are against the execution of criminals guilty of capital murder? Is it also a sacrifice? Is it also necessary?
If we are to advocate the death penalty we have to prove three things. That it is morally correct, that there is a valid amoral reason for it and that it is practically the best option. We should not endorse practices that are not moral but we are not obliged to do something just because it is. If there is no reason to do something or if there is a practically better alternative (which is also moral), one cheaper or more effective for example, we can and should relinquish our moral right to carry out the first alternative.
If we take the Gulf War as an example, the Allied forces were morally right in intervening (wrongdoings morally deserve punishment), there was a valid reason to do so (to free the people of Kuwait from occupation) and, hopefully, we choose the practically best option (an air campaign followed by ground invasion).
Discrimination and Arbitrariness
In 1972, the United States Supreme Court ruled that capital punishment, as it was then being administered, was being applied in an arbitrary and capricious manner, which constituted “cruel and unusual punishment” and was therefore unconstitutional (Furman v Georgia, 1972). As a result of the Furman decision, states amended their death penalty statutes to address the Supreme Court's constitutional concerns. Most of the states introduced the pleading of mitigating and aggravating factors when considering a sentence of death.
However, some people claim that despite these improvements the death penalty still discriminates on grounds of race, sex and wealth or is simply arbitrary and therefore call for it's abolishment. There is not conclusive evidence for the truth of any of the above cases (though no system is perfect), but even if there were, it would still not be grounds for the abolishment of the death penalty but for another call for it's improvement. We do not abolish the workplace because it is sexist; we strive to remove the sexism. We do not remove the entire penal justice system because it discriminates; we try to reform it. Similarly, we should fight discrimination in the sentencing of the death penalty and not see it is as a call for its abolishment. The death penalty, in itself, is not inherently more discriminatory than any other form of punishment although the fact that it is more severe may create larger reservations. Are we willing to accept the inherent problems of inequality in any justice system when the sentence being considered is death and not imprisonment?
I include this section on the viewpoint of the Christian Church for two reasons. Firstly, because some people take their moral values from it's teaching and secondly because it makes a very good point. It is possible to make many out of context and easily misunderstood bible quotes on this topic but I will limit myself to quoting Pope John Paul II in his encyclical letter: Evangelium Vitae (The Gospel of Life) March 25, 1995. He clearly advocates the death penalty in some cases, but I believe many would agree with the following extract:
“In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.””
I believe this is one of the key questions of this debate: Are bloodless means sufficient?
Sanctity of Human Life
One argument, based in morality, commonly used against the death penalty is that it is an affront to the sanctity of human life. This is succinctly put in the bumper sticker: “We kill people to show that killing people is wrong”. Semantically, however, this is correctly put as: “We execute people to show that murder is wrong” (Casey Carmical, The Death Penalty: Morally Defensible?).
Life is the most fundamental right, rated above both freedom and personal property, but does this warrant it special protection? John Stuart Mill in a speech given before Parliament on April 21, 1868 in opposition to a bill banning capital punishment very eloquently suggests it does not:
“But I am surprised at the employment of this argument, for it is one which might be brought against any punishment whatever. It is not human life only, not human life as such, that ought to be sacred to us, but human feelings. The human capacity of suffering is what we should cause to be respected, not the mere capacity of existing. And we may imagine somebody asking how we can teach people not to inflict suffering by ourselves inflicting it? But to this I should answer--all of us would answer-- that to deter by suffering from inflicting suffering is not only possible, but the very purpose of penal justice. Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself, and that while no other crime that he can commit deprives him of his right to live, this shall.”
Furthermore, Edward Koch, former mayor of New York City, has said:
"It is by exacting the highest penalty for the taking of human life that we affirm the highest value of human life."
Indeed, it is the above arguments that have prompted people to say that we are morally obliged to execute murderers. As Chicago journalist Mike Royko stated:
“It's because I have so much regard for human life that I favor capital punishment. Murder is the most terrible crime there is. Anything less than the death penalty is an insult to the victim and society. It says…that we don't value the victim's life enough to punish the killer fully."
There is a certain transparent logic in taking the lives of those who take it from others, but why is this tit-for-tat thinking solely reserved for murder. The majority of people stopped advocating the literal application of “an eye for an eye” many years ago. Do we insult the victim of GBH by merely incarcerating the perpetrator and not insisting on reciprocal bodily damage? There are humane, surgical ways of removing limbs and yet we would condemn any suggestion of such punishment. Why? Because it is barbaric, uncivilised. Can the same be said of the death penalty?
If one believes that, morally, murdering somebody does deserve the punishment of death, one must also decide whether it is justified in every case. Many states in the U.S. have a system of aggravating circumstances (e.g. if the victim was under 12 years old, was an on duty fireman or was killed by discharging a firearm from a vehicle or while the perpetrator was attempting a burglary) and mitigating ones (e.g. if the defendant has no significant prior criminal conduct or was under 18 or was intoxicated at the time of the murder [all circumstances taken from Indiana Law]) for deciding if the death penalty is appropriate. Some of these circumstances seem a little arbitrary (obviously I have highlighted some of the more arbitrary ones) and therefore difficult to justify morally. As with discrimination, problems such as these cannot call for the abolition of the death penalty, simply for its improvement. However, any special cases that one does decide upon must be morally defensible.
Purpose of Punishment
The exact purpose of punishment has been the subject of much debate and is still not agreed upon. By way of introduction to this topic, I quote the statement Lord Justice Denning, former Master of the Rolls of the Court of Appeals in England made to the Royal Commission on Capital Punishment in 1950:
"Punishment is the way in which society expresses its denunciation of wrong doing; and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive and nothing else... The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not."
The moral imperative to carry out the required punishment (retribution), rehabilitation, incapacitation, respect for the victim, peace of mind for the victim’s family and deterrence have all been suggested as reasons for punishment.
It is clear it is morally correct to punish criminals, but as discussed previously the actual moral level of punishment is difficult to ascertain (public opinion has fluctuated significantly throughout history). Even if found, we recall that we are not obliged to carry it out, it must have a purpose and be practical.
It is also clear that with the death penalty, rehabilitation is non-existent and that incapacitation is absolute (the incapacitation effect is discussed later). I also believe that respect for the victim falls under our moral obligation as if we give the correct, moral, punishment for the crime we do indeed show respect to the victim.
Relief and piece of mind is certainly something that some victim’s relatives hope to receive from the execution of the criminal. The execution puts an “end to it all” in a way that a sentence of life without parole (LWOP) would not. However, according to Lula Redmond, a Florida therapist who works with families of murder victims, more often than not, such families do not experience the relief that they expected to feel at the execution: "Taking a life doesn't fill that void, but it's generally not until after the execution [that the families] realize this. Not too many people will honestly [say] publicly that it didn't do much, though, because they've spent most of their lives trying to get someone to the death chamber."(The place for vengeance, prodeathpenalty.com)
We must ask if the relief that relatives receive is really worth the criminal’s life? And whether, in a civilised society, punishments should take the emotions of the victim’s relatives into account? If there happened to be no grieving relatives this argument for the death penalty would disappear. Is it therefore not a little arbitrary? As an example, in Saudi Arabia, two Britons accused of murdering an Australian were sentenced to death in 1997 by beheading. Their sentence could have been commuted, however, if the victim's brother had been willing to accept monetary compensation.
Clearly, one of the main reasons for punishing criminals is as a deterrent to other members of society. The practicalities of how deterrence is best carried out are of course heavily debated but I believe it can be safely divided into three parts; the probability of being caught, the probability of being convicted and the severity of the punishment. As an example of this division, I quote Dudley Sharp in Death Penalty and Sentencing Information in the United States (10/1/97):
“Assume all murderers would instantly die upon murdering. Murderers would then kill only if they wished to die themselves. Murder/suicide is an extremely small component of all murders. Therefore, if a swift and sure death penalty was universally applied to our worst criminals, it is logically conclusive that the death penalty would be a significant deterrent…”
I believe the steps in this argument would apply equally well if the penalty of death was substituted for LWOP. The concept of a swift and sure penalty applies to only the first two parts of any deterrent; the probability of capture and subsequent conviction.
Obviously, every law-abiding citizen would wish for an increase in the conviction rate of criminals, so the real question (and possibly the most important of this debate) is whether the threat of the death penalty over that of LWOP is a real and significant deterrent.
99.9% of all convicted capital murderers and their attorneys argue for life, not death, in the punishment phase of their trial. No life sentence has ever been ‘commuted’ to execution. The numbers of suicides in prisoners serving LWOP cases is low. These facts prove that murderers (along with the majority of the population) believe that LWOP is a less severe sentence than execution. As a deterrent then, the death penalty should be more effective than LWOP. Rational thinkers are less likely to commit murder if the threat of the death penalty exists. But is the case of the rational thinker worth considering?
Half of all murders are committed while under the influence of drugs or during an argument (U.S. Department of Justice Office of Justice Programs: American Indians and Crime) and as such not subject to rational thought. If the extra deterrent of the death penalty over LWOP were to deter these impulsive murderers it would have to do so subconsciously. However, it is difficult to believe that if the moral teaching of ‘do not murder’ has no effect in these situations, that the extra deterrent of the death penalty has.
Let us return to our rational would-be-murderer. The only ones deterred are those who think: “I won’t murder as I could be executed, but if the maximum sentence was LWOP I would”. Is this a likely thought? And what does a rational thinker conclude when the possibility of being executed is so low? Annually, there are 22,000 murders in the U.S. and only 60 executions (this statistic has been used to demand an expansion for the death penalty, but I believe most of the problem is due to the poor arrest and conviction record). True rational thinkers would also pay attention to the mitigating and aggravating factors applicable in their region in an attempt to mould their murder to prevent the option of a death sentence.
The above discussion is over the likelihood of the death penalty being a deterrent to individuals. There are in fact documented cases of criminals stating that the existence of the death penalty was a factor in their thinking: Larry Derryberry, "It Is The Fear That Death May Be The Punishment That Deters", Police Digest, Spring/Summer 1973, p.27, col.2. ; "Langley says Texas death penalty affected his actions during escape", by Stephen Martin, The Daily Democrat (Ft. Madison, Iowa), 1/8/97. I have not been able to read these articles (if anyone knows where they can be found I would be grateful for their help), but it appears that are several cases where people have restrained themselves for fear of the death penalty.
The Honourable B. Rey Shauer, former Justice of the Supreme Court of California, has said
"That the ever present potentiality in California of the death penalty, for murder in the commission of armed robbery, each year saves the lives of scores, if not hundreds of victims of such crimes, I cannot think, can reasonably be doubted by any judge who has had substantial experience at the trial court level with the handling of such persons. I know that during my own trial court experience...included some four to five years (1930-1934) in a department of the superior court exclusively engaged in handling felony cases, I repeatedly heard from the lips of robbers...substantially the same story: 'I used a toy gun [or a simulated gun or a gun in which the firing pin or hammer had been extracted or damaged] because I didn't want my neck stretched.' (The penalty, at the time referred to, was hanging.)"
In counter to this, however, there are clinically documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them (West, Solomon, and Diamond, in Bedau and Pierce, eds., Capital Punishment in the United States (1976))
The existence of the individual deterrent effect is one of the biggest thorns in the abolitionist’s argument. Are they just endangering innoncent people's by condeming the death penalty? However extrapolating from the individual to the general is always inaccurate and I believe we are best to consider the existence of a general deterrent effect separately.
With regard to the existence of a general deterrent effect it is possible to cite reports for both sides and death penalty statistics in general have been atrociously abused for this purpose. The only true test would be to measure murder rates in two states identical except for the existence of the death penalty in one of them. Clearly, this is impossible. Most comparisons quoted are flawed due to variations in general crime rate, location, level of urbanisation and local history. Comments such as “no deterrent exists, because despite an increasing execution rate we have an increasing murder rate” are utterly flawed as they neglect all the other factors that may be varying with time. I also believe that little can be gained from analysing results from before and after individual executions due to the inherent fact that they are just individual occurrences.
Any investigation into deterrence is also hampered by the fact that it is inherently a negative effect. As poet Hyam Barshay observes; "The death penalty is a warning, just like a lighthouse throwing beams out to sea. We hear about shipwrecks, but we do not hear about the ships the lighthouse guides safely on their way. We do not have proof of the number of ships it saves, but we do not tear the lighthouse down."
I believe that the best approach, to this obviously undecided question, by someone unfamiliar with the research field is to compare the views of those people who are familiar with it and are able take an overall view.
A survey of 67 current and former presidents of the American Society of Criminology, the Academy of Criminal Justice Sciences, and the Law and Society Association showed that the overwhelming majority did not believe that the death penalty is a proven deterrent to homicide. Over 80% believe the existing research fails to support a deterrence justification for the death penalty. Similarly, over 75% of those polled do not believe that increasing the number of executions, or decreasing the time spent on death row before execution, would produce a general deterrent effect. Most importantly, none of the criminologists believed that: "The death penalty significantly reduces the number of homicides". (M. Radelet and R. Akers, Deterrence and the Death Penalty? The Views of the Experts, 1995).
A 1995 Hart Research Associate Poll of police chiefs in the U.S found that also the majority of police chiefs (67%) do not believe that the death penalty significantly reduces the number of homicides. Also, U.S. Attorney General Janet Reno is quoted as saying:
"I have inquired for most of my adult life about studies that might show that the death penalty is a deterrent. And I have not seen any research that would substantiate that point," (Reuters, 1/21/00)
Many politicians have offered support for the death penalty, but interestingly all of the criminologists, discussed in the survey above, believed that: "Politicians support the death penalty as a symbolic way to show they are tough on crime.
However, crucially, Congress and 35 state legislatures have concluded; “that there are indeed certain circumstances in which the death penalty is the most efficacious deterrent of crime." This is also the view held by both George Bush and Al Gore.
The flip side to this argument is that some people believe, and some studies have shown, that having a death penalty actually increases the murder rate (Bowers, 1988; Forst, 1983; Stack, 1990). The effect is known as the ‘brutalisation effect’ and is explained as follows; legal executions can inculcate a belief in the low value of human life thereby increasing the likelihood of somebody taking one. Evidence for the brutalisation effect, however, is even weaker than that for the deterrent effect. It’s principle, though, is commonly used as an argument against the death penalty. Italian jurist Cesare Beccaria, in his On Crimes and Punishment (1764), asserted:
"The death penalty cannot be useful, because of the example of barbarity it gives men."
The death penalty has also been condemned for epitomizing the use of violence to solve problems. However, one of the biggest fallacies in the world is that “violence never solves anything”. Countless wars and revolutions have proven that violence can indeed solve problems and can even be the only moral solution.
There is no conclusive evidence on the subject of deterrence, which is why logic must side with the aforementioned criminologists, none of whom believed that: “The death penalty significantly reduces the number of homicides.”
(Note: I would like to mention a point that must be considered by all believers in the deterrent effect of the death penalty. A deterrent is only useful in as much as it is known as a reality. “The greater the publicity surrounding executions, the greater the deterrent effect.” concluded D. Phillips in The Deterrent Effect of Capital Punishment. (American Journal of Sociology, 86; 139-158, 1980). This should be enough incentive to ensure that the problem of willing execution witnesses is removed permanently. If greater public awareness improves the deterrent effect then not only should executions be publicised, but they should be made a compulsory part of the academic syllabus. Of course, the same reasoning can be made on all forms of punishment and probably should.)
Death Penalty Vs. Life Without Parole
As I have previously stated, the death penalty is seen as a worse punishment than that of LWOP. It is this latter punishment that virtually all opponents of the death penalty would advocate as the one sentenced to those convicted of capital murder and, indeed, already is to most murderers in the U.S..
The sentence of LWOP has come under a lot fire for many reasons; that in many cases it isn’t actually life, that prisons are too comfortable and that it allows criminals to recommit either in prison or during escape. I will tackle these issues individually.
Life without parole could be exactly that, but in many cases it isn’t. Laws change and parole boards can decide to release a convicted murderer. However, any release is done in good faith. The parole board genuinely believes that the criminal will not recommit and can be a productive member of society. If the parole board is not genuine or makes an incorrect assessment then it is the fault of the parole board and I believe this passes no judgment on the original sentence. If parole boards are making continual mistakes, or if the entire concept of parole for convicted murderers is flawed then these issues must be addressed, but addressed separately to that of the death penalty versus the actual sentence of LWOP. (Note: with the U.S. Department of Justice estimating that “convicted criminals free on parole and probation . . . commit at least 84,800 violent crimes every year, including 13,200 murders, 12,900 rapes, and 49,500 robberies." (American Guardian, May 1997, pg. 26.), parole is certainly an issue that should be addressed, but I do believe this is a separate issue).
Many prisons all over the world have been criticised for being too comfortable; air-conditioning, cable, free meals, personal recreation time, and regular visits with friends and family. On the other hand, many more have been criticised for being inhumane, and I believe this is the crux of this issue. In a civilised society, prisons should be humane places to live. Inhumane treatment is uncivilised. Food, recreation and study time, contact with family are certainly required; cable can of course be debated. Though, even with benefits such as the latter, I find it difficult to believe that prisons are pleasant places to live. Indeed, I don’t believe there are many cases where a criminal has asked to serve extra time. It is everyone’s prerogative to believe that, morally, capital murderers deserve a more severe penalty than LWOP but you must still be sure that there is a valid reason to use the death penalty and that it is practically the best option.
It is certainly true that convicted murderers do murder again in prison and while escaped. Of the 3,452 inmates on Death Row as of Jan 1, 1999, 9% had a prior homicide conviction at the time of the murder though presumably most of these previous murders did not warrant execution. The effects of this problem can certainly be reduced. Prisons could be made more secure, with better protection for prison wardens. Clearly, in practice, no amount of security would be sufficient and that the problem of murderers reoffending could be eliminated by executing them, but so could the problem of reoffence by any criminal. Nobody advocates the use of the death penalty for convicted robbers to prevent their reoffence and by the same measure it should not be used as an argument for the death penalty for criminals convicted of murder. It is immoral to increase someone’s punishment on the belief that they will commit another crime at a later date; however, one can call for clemency on the grounds that it is very unlikely that they will reoffend. (This argument is very often stated the wrong way round by opponents of the death penalty who claim that people are being sentenced to death for crimes they haven’t yet committed. They are, in fact, receiving a reduced sentence on the belief that they will not recommit.)
Only if, solely on the basis of his crimes to date, you believe that morally the state has a right to execute a murderer, then and only then can you consider the practicalities of LWOP. If one does, it can be seen that, even with any amount of precautions, the criminal does have a chance to commit further crimes. “My morality dictates that the state has a right to execute capital murderers and I do not believe that LWOP is a suitable alternative as it gives them the chance to do further harm” is certainly a valid viewpoint though not a complete one. Other reasons and practicalities must also be considered. (Note: the similar argument: “My morality dictates…but I do not believe that LWOP is a suitable alternative because it gives them a chance for parole” is not valid as it is possible, through legislation, to remove all possibility of parole. “My morality dictates…is a suitable alternative because I believe that LWOP is, morally, to weak a punishment” is valid however.)
Another argument used to support the death penalty is the insistence that a punishment greater than LWOP needs to exist. Otherwise it is claimed, what is the deterrent, to criminals already sentenced to LWOP, to refrain from committing further crimes either in prison or while escaped? In direct answer to the above there is the removal of all privileges but as I have previously stated there is a limit to this as the treatment of prisoners must be humane at all times. A better answer, however, is that there must always be some maximum punishment. Where is the incentive to those on death row not to reoffend? Again, it is simply the removal of privileges until their execution. This time in limbo is not insignificant; those criminals executed during 1998 spent an average of 10 years and 10 months awaiting execution. Obviously this is a shorter period of time than life, but I have already addressed the issue of reoffence.
Risk of Executing The Innocent
The absolute incapacitation effect discussed above can be seen as a benefit of the death penalty over LWOP, but it is also one of the main arguments against it. A miscarriage of justice that results in the execution of an innocent person cannot be undone. As John Stuart Mill, in the very same speech as quoted from before, states:
“There is one argument against capital punishment, even in extreme cases, which I cannot deny to have weight--on which my hon. Friend justly laid great stress, and which never can be entirely got rid of. It is this--that if by an error of justice an innocent person is put to death, the mistake can never be corrected; all compensation, all reparation for the wrong is impossible.”
However, he continues:
“This would be indeed a serious objection if these miserable mistakes--among the most tragical occurrences in the whole round of human affairs--could not be made extremely rare. … Our rules of evidence are even too favorable to the prisoner; and juries and Judges carry out the maxim, "It is better that ten guilty should escape than that one innocent person should suffer," not only to the letter, but beyond the letter. Judges are most anxious to point out, and juries to allow for, the barest possibility of the prisoner's innocence.”
And indeed, this is the very point that advocates of the death penalty do make with regard to the possibility of executing the innocent, namely that it is very small. Very small possibly, but an inevitable risk. As the late U.S. Supreme Court Justice Thurgood Marshall once said:
"No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony and human error remain too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some."
One of the most extensive studies to evaluate the evidence for executions of innocent people is the Bedau-Radelet Study (Miscarriages of Justice in Potentially Capital Cases, 40, 1 Stanford Law Review, 11/87). The study concluded that 23 innocent persons had been executed since 1900. However, this report has been widely criticised: Markman, Stephen J. & Cassell, Paul G. in Protecting the Innocent: A Response to the Bedau-Radelet Study (41, 1 Stanford Law Review, 11/88) stated that Bedau and Radelet "consistently presented incomplete and misleading accounts of the evidence."
Michigan Court of Appeals Judge, Stephen Markman, found that " . . . the Bedau-Radelet study is remarkable not (as retired Supreme Court Judge Harry Blackmun seems to believe) for demonstrating that mistakes involving the death penalty are common, but rather for demonstrating how uncommon they are . . . This study - the most thorough and painstaking analysis ever on the subject - fails to prove that a single such mistake has occurred in the United States during the twentieth century ("Innocents on Death Row?", National Review, September 12, 1994).
Even Bedau and Radelet, themselves have conceded: "We agree with our critics that we have not proved these executed defendants to be innocent; we never claimed that we had." (41, 1 Stanford Law Review, 11/1988).
There is no proof that any innocent people have been executed but it is a fact that over 65 people have been released, declared innocent, from death row since 1973 (Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center). The size of this figure indicates that there are errors in the system and creates the possibility that innocent people have been executed. As advocates of the death penalty are quick to point out it is highly likely that some of the people released did indeed commit the crimes of which they were charged (Critique Of the Death Penalty Information Center List- Justice For All), but our system of justice is, rightly, weighted in favour of the defendant and we would have been, morally, wrong to execute any of these peoples while doubts surrounding their guilt have existed. Sadly, many of these pardons have only occurred due to supreme efforts of some very good lawyers whom are unavailable to the majority of death row inmates. A point worthy of remembrance for those that would have fast track executions; In the last 27 years, over 65 people who have been declared innocent would have been executed.
It is also true that we have, in fact, executed people when doubts surrounding their guilt have still existed. In U.S. law, once a defendant has been found guilty the burden falls on the defendant to prove to the court that he is not guilty. To overturn a conviction it is no longer enough to raise a reasonable doubt, the defendant must produce "clear and convincing" proof of his innocence. In many states this new evidence must be presented within a limited time, which can prevent the admission of crucial evidence (Michael Ross).
One factor that may increase the possibility of convicting innocent people is the necessity for “death qualified” juries. For a sentence of death to be imposed, the jury must unanimously make such a recommendation. Therefore, a lone juror who is opposed to capital punishment could vote against recommending the death penalty and, thereby, ensure that the defendant not be sentenced to death. To avoid this possibility, jurors must indicate that they would be willing to vote for the death penalty in at least some cases (Cowan, Thompson, & Ellsworth, 1984). Jurors who satisfy this requirement are known as "death qualified jurors" and those who feel unable to recommend a sentence of death in any situation are known as "excludables." Excludables are prohibited from serving on capital juries.
Although the death qualification process is essential to make capital sentencing possible, compared to excludables, death qualified jurors have been found to be "conviction prone" – that is, more likely to find defendants guilty (Cowan et al., 1984; Jurow, 1970). One possible reason for this is that the very raising of the issue of what the punishment will be before the trial can send a signal to prospective jurors that the issue of guilt is in little doubt.
There are no proven cases where innocent people have been executed but there are obvious problems with the current system. It is clear that wherever the death penalty exists so does the possibility of executing an innocent person.
However, even if executions of innocent people were proven to have taken place they would still not be a complete argument against the death penalty. Whenever we punish, we inevitably risk punishing the innocent. It is a question of risk, and whether that risk is worth the procured benefit. We obviously have a major aversion to the thought of state approved execution of innocent people, but when does such a sacrifice become worth it, or indeed morally justified? And, without wishing to trivialise this point, should the wrongly convicted, as one Internet chat-site user put it: “take it for the team”.
For example, if it were certain that each execution deterred ten murderers and that for every 100 people executed, one was innocent would we advocate the death penalty? Would we save 1,000 innocent victims of murder for the state approved execution of one innocent person? What if it was just 10 innocent victims of murder that we saved? Or 100,000? Does one innocent life equal another? Or does no number of innocent murder victims offset one state approved murder? I do not believe that we can use a moral absolute to answer these questions. It is a question of how one, personally, rates human life and in what type of society one wishes to live.
Although many people will say cost should play no part in a basically moral debate, as I stated at the beginning of this essay, we must decide if the death penalty is the most practical sentence for capital murder and cost is very much a part of practicalities. The budget for crime fighting is always limited and should therefore be spent in the most efficient way. The cost of enforcing the death penalty must be compared with it’s best alternative; that of LWOP. The Death Penalty Information Center has furnished me with these reports and quotes:
The most comprehensive study carried out in the U.S. found that the death penalty costs North Carolina $2.16 million per execution over the costs of a non-death penalty murder case with a sentence of imprisonment for life (Duke University, May 1993.) On a national basis, these figures translate to an extra cost of over $1 billion dollars spent since 1976 on the death penalty
In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. (Dallas Morning News, March 8, 1992).
"Elimination of the death penalty would result in a net savings to the state of at least several tens of millions of dollars annually, and a net savings to local governments in the millions to tens of millions of dollars on a state-wide basis." --Joint Legislative Budget Committee of the California Legislature, Sept. 9, 1999 (The Catalyst, 2/22/00)
It seems clear that the death penalty is a more expensive option than LWOP, which begs the question of whether it is money well spent. Could a more effective deterrent be created by spending the money saved, by not pursuing the death penalty, on increasing the effectiveness of the other two parts of any deterrent; the probabilities of the capture and conviction of the guilty? The money could also be spent on improving the security of prisons, education or any other crime reduction program.
I would now like to draw together all the arguments in this debate. I repeat that I believe, of all the arguments covered in this essay, that the possibility for the discriminatory use of the death penalty, the possibility of parole (for both can be removed) and Christian doctrine (unless as your source of morality) are irrelevant to this debate.
The first two questions that must be answered are, I believe, purely personal:
Does the state have the moral right to execute anyone?
Is LWOP a morally wrong (i.e. too weak) punishment for capital murder?
If the answer is yes to either of the above questions, you must consider the morality of the literal application of “an eye for an eye” to every crime and the consequences of that. If your answer is no to both, you must be able to provide a clear distinction between execution and other forms of killing that you may, morally, believe to be right; the inevitable killing of innocent civilians during war or in self-defence, for example.
A third, personal, moral question is:
Does the state have the moral right to risk executing somebody who is innocent?
Again, if you answer no to this question distinctions must be made between execution and other forms of state condoned killing and indeed, a no also begs the question: Does the state have the moral right to risk the incarceration or subjection to any type of punishment of somebody who is innocent?
If your answers to the above questions are not yes, no and yes respectively the death penalty debate ends here through simply moral beliefs. If, however, you believe that the state has a moral right to execute some criminals even with the possibility of innocence but also that it can waive that right without being morally wrong then you must also consider the practicalities. The practicalities are as follows:
Deterrence/Brutalisation: Despite documented cases of individual deterrence, no conclusive evidence exists for either effect. In a survey of 67 current and former presidents of the American criminology societies none of them believed that: “The death penalty significantly reduces the number of homicides”.
Execution of the innocent: No proven cases. 65 people previously sentenced to death have been ‘declared innocent’ since 1973. The possibility of executing innocent people does exist but is clearly small.
Incapacitation:This cannot be argued for by using crimes a criminal is yet to commit but only if, morally, you believe he has forfeited his right to live and should not be given the chance to do any further harm. In the latter case, deciding against the death penalty becomes a matter of risk. If a man lives, he can commit crimes, but the prison service can be improved to reduce his opportunity. Unfortunately the number of crimes committed by convicted murderers who would have received the death penalty, if it had been an option, while in prison or escaped is unavailable. (Information on crimes committed by inmates would be appreciated)
Cost It is estimated that in the U.S. an extra $2 million per case is spent in securing the death penalty instead of LWOP.
We now have two more questions:
Are the benefits of absolute incapacitation and deterrence outweighed by the possibility of executing innocent people and the harm done from living in a society that does deliberately kill defenceless people?
And even if the above is not true can the money saved by not having a death penalty be used in a different way to produce a more favourable result?
An answer of no to both of these questions is required if one is to support the death penalty.
We must also ask whether we are willing to accept the inherent problems of inequality in any justice system when the sentence being considered is death and not imprisonment. One final question:
How far is it possible to view criminals as men subject to the frailties and depravities of human nature without undermining our system of justice and sacrificing our moral beliefs?
The references for this essay can be found on the Useful Links page.
View facts on the death penalty in general or in the US specifically.
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Facts About The Death Penalty
The number of abolitionist and retentionist countries as of April 1, 2000:
Abolitionist for all crimes: 73
Abolitionist for ordinary crimes only: 13
Abolitionist de facto: at least 22
TOTAL-Abolitionist in law or practice: 108
Retentionist Countries: 87
In 1998, there were 1,625 known executions in 37 countries, 80% of which took place in China (1067), the Democratic Republic of Congo (100), the USA (68) and Iran. Because these figures include only documented cases; the true figures are likely to be much higher. (Source: Amnesty International)
The Death Penalty in the US
As of June 1, 2000, the Death Penalty was authorized by 38 states, the Federal Government, and the U.S. Military. Those jurisdictions without the Death Penalty include 12 states and the District of Columbia. (Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin).
US EXECUTIONS SINCE 1977 (as of June 1, 2000):638 (1999 : 98)
Sentenced to Death 1973 - Jan 1, 1999 Executed Died Death Sentence Vacated on Appeal Commuted 6,431 500 (7.8%) 180 (2.8%) 2,124 (33.0%) 146 (2.3%)
As of April 1, 2000, 3,679 inmates were awaiting execution on Death Row in the U.S..
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