by Hugo Adam Bedau
Hugo
Adam Bedau is Fletcher Professor of Philosophy =
at
Tufts University. He has written and edited a number of books on political
philosophy and on capital punishment, including Death is Different (1987) and =
The Death Penalty in Amer=
ica,
3rd edition (1982 ). He gratefully acknowledges =
the
assistance of Henry Schwarzschild, Director Emeritus of the ACLU Capital
Punishment Project.
The American Civil Liberties Union
holds that the death penalty inherently violates the constitutional ban aga=
inst
cruel and unusual punishment and the guarantee of due process of law and the
equal protection of the laws. The imposition of the death penalty is
inconsistent with fundamental values of our democratic system. The state sh=
ould
not arrogate unto itself the right to kill human beings, especially when it
kills with premeditation and ceremony, under color of law, in our names, and
when it does so in an arbitrary and discriminatory fashion. In the judgment=
of
the ACLU, capital punishment is an intolerable denial of civil liberties. We
shall therefore continue to seek to prevent executions and to abolish capit=
al
punishment by litigation, legislation , commutat=
ion,
or by the weight of a renewed public outcry against this brutal and brutali=
zing
institution.
Capital Punishment Project
American Civil Liberties Union
122 Maryland Avenue, N.E.
Washington, D.C. 20002
ISBN 0-86566-063-8
(c) American Civil Liberties Union
Permission to reprint, with credit given to the source, is granted.
In
1972, the Supreme Court declared that under then
existing laws "the imposition and carrying out of the death penalty ...
constitutes cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments." (Furman v. Georgia, 408 U.S.238) The majority =
of
the Court concentrated its objections on the way death-penalty laws had been
applied, finding the result so "harsh, freakish, and arbitrary" a=
s to
be constitutionally unacceptable. Making the nationwide impact of its decis=
ion
unmistakable, the Court summarily reversed death sentences in the many cases
then before it, which involved a wide range of state statutes, crimes, and
factual situations.
But within four years after the Fu=
rman
decision, more than 600 persons had been sentenced to death under new
capital-punishment statutes that provided guidance for the jury's sentencing
discretion. These statutes typically require a bifurcated (two-stage) trial
procedure, in which the jury first determines guilt or innocence and then
chooses imprisonment or death in the light of aggravating or mitigating
circumstances.
In July 1976, the Supreme Court mo=
ved
in the opposite direction, holding that "the punishment of death does =
not
invariably violate the Constitution." The Court ruled that these new
statutes contained "objective standards to guide, regularize, and make
rationally reviewable the process for imposing the sentence of death."
(Gregg v. Georgia, 428 U.S.153) Thus the states as well as Congress have had
for some years constitutionally valid statutory =
models
for death-penalty laws, and more than three dozen state legislatures have
enacted death penalty statutes patterned after those the Court upheld in Gr=
egg.
In recent years, Congress has enacted death penalty statutes for peacetime
espionage by military personnel and for drug-related murders.
Executions resumed in 1977, and by=
the
early 1990s nearly three thousand persons were under sentence of death and =
more
than 180 had been executed.
Despite the Supreme Court's 1976
ruling in Gregg v. Georgia, the ACLU continues to oppose capital punishment=
on
moral and practical, as well as on constitutional, grounds:
Two
conclusions buttress our entire case: Capital punishment does not deter cri=
me,
and the death penalty is uncivilized in theory and unfair and inequitable in
practice.
The
argument most often cited in support of capital punishment is that the thre=
at
of executions deters capital crimes more effectively than imprisonment. This
claim is plausible, but the facts do not support it. The death penalty fail=
s as
a deterrent for several reasons.
--1--
Any punishment can be an effective deterrent only if it is consistently and=
promptly
employed. Capital punishment cannot be administered to meet these condition=
s.
Only a small proportion of
first-degree murderers is sentenced to death, an=
d even
fewer are executed. Although death sentences since 1980 have increased in
number to about 250 per year,(1) this is still only 1 per cent of all homic=
ides
known to the police.(2) Of all those convicted on a charge of criminal
homicide, only 2 percent -- about 1 in 50 -- are eventually sentenced to
death.(3)
The possibility of increasing the
number of convicted murderers sentenced to death and executed by enacting
mandatory death penalty laws was ruled unconstitutional in 1976 (Woodson v.
North Carolina, 428 U.S. 280).
Considerable delay in carrying out=
the
death sentence is unavoidable, given the procedural safeguards required by =
the
courts in capital cases. Starting with empaneling the
trial jury, murder trials take far longer when the death penalty is involve=
d.
Post-conviction appeals in death-penalty cases are far more frequent as wel=
l. All
these factors increase the time and cost of administering criminal justice.=
The sobering lesson is that we can
reduce such delay and costs only by abandoning the procedural safeguards and
constitutional rights of suspects, defendants, and convicts, with the atten=
dant
high risk of convicting the wrong person and executing the innocent.
--2--
Persons who commit murder and other crimes of personal violence either
premeditate them or they do not. If the crime is premeditated, the criminal
ordinarily concentrates on escaping detection, arrest, and conviction. The
threat of even the severest punishment will not deter those who expect to
escape detection and arrest. If the crime is not premeditated, then it is
impossible to imagine how the threat of any punishment could deter it. Most
capital crimes are committed during moments of great emotional stress or un=
der
the influence of drugs or alcohol, when logical thinking has been suspended.
Impulsive or expressive violence is inflicted by persons heedless of the co=
nsequences
to themselves as well as to others.
Gangland killings, air piracy,
drive-by shootings, and kidnapping for ransom are among the graver felonies
that continue to be committed because some individuals think they are too
clever to get caught. Political terrorism is usually committed in the name =
of
an ideology that honors its martyrs; trying to cope with it by threatening
death for terrorists is futile. Such threats leave untouched the underlying
causes and ignore the many political and diplomatic sanctions (such as trea=
ties
against asylum for international terrorists) that could appreciably lower t=
he
incidence of terrorism.
The attempt to reduce murders in t=
he
illegal drug trade by the threat of severe punishment ignores this fact: An=
yone
trafficking in illegal drugs is already betting his life in violent competi=
tion
with other dealers. It is irrational to think that the death penalty--a rem=
ote
threat at best -- will deter murders committed in drug turf wars or by
street-level dealers.
--3--
If, however, severe punishment can deter crime, then long term imprisonment=
is
severe enough to cause any rational person not to commit violent crimes. The
vast preponderance of the evidence shows that the death penalty is no more
effective than imprisonment in deterring murder and that it may even be an
incitement to criminal violence in certain cases.
Actual
experience establishes these conclusions beyond a reasonable doubt. No
comparable body of evidence contradicts them.
Three investigations since Furman,
using methods pioneered by economists, reported findings in the opposite
direction.(11) Subsequently, several qualified
investigators have independently examined these claims, and all have reject=
ed
them.(12) The National Academy of Sciences, in its thorough report on the
effects of criminal sanctions on crime rates, concluded: "It seems
unthinkable to us to base decisions on the use of the death penalty" on
such "fragile" and "uncertain" results. "We see too
many plausible explanations for [these] findings ... other than the theory =
that
capital punishment deters murder."(13)
Furthermore, cases have been
clinically documented where 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 but feared to take their
own life and committed murder so that society would kill them.(14)
It must, of course, be conceded th=
at
inflicting the death penalty guarantees that the condemned person will comm=
it
no further crimes. This is an incapacitative, n=
ot a
deterrent, effect of executions. Furthermore, it is too high a price to pay
when studies show that very few convicted murderers ever commit another cri=
me
of violence.(15) A recent study examined the pri=
son
and post-release records of 533 prisoners on death row in 1972 whose senten=
ces
were reduced to life by the Supreme Court's ruling in Furman. The research
showed that 6 had committed another murder. But the same study showed that =
in 4
other cases, an innocent man had been sentenced to death.(16)
Recidivism among murderers does
occasionally happen. But it happens less frequently than most people believ=
e;
the media rarely distinguish between a paroled murderer who murders again a=
nd other
murderers who have a previous criminal record but not for homicide.
There is no way to predict which
convicted murderers will kill again. Repeat murders could be prevented only=
by
executing all those convicted of criminal homicide. Such a policy is too
inhumane and brutal to be taken seriously. Society would never tolerate doz=
ens
of executions daily, yet nothing less would suffice. Equally effective but =
far
less inhumane is a policy of life imprisonment without the possibility of
parole.
Constitutional
due process as well as elementary justice require that
the judicial functions of trial and sentencing be conducted with fundamental
fairness, especially where the irreversible sanction of the death penalty is
involved. In murder cases (since 1930, 99 percent of all executions have be=
en
for this crime), there has been substantial evidence to show that courts ha=
ve
been arbitrary, racially biased, and unfair in the way in which they have
sentenced some persons to prison but others to death.
Racial discrimination was one of t=
he
grounds on which the Supreme Court relied in Furman in ruling the death pen=
alty
unconstitutional. Half a century ago, Gunnar Myrdal, in his classic American
Dilemma (1944), reported that "the South makes the widest application =
of
the death penalty, and Negro criminals come in for much more than their sha=
re
of the executions." Statistics confirm this discrimination, only it is=
not
confined to the South. Between 1930 and 1990, 4,016 persons were executed in
the United States. Of these, 2,129 (or 53 percent) were black. For the crim=
e of
murder, 3,343 were executed; 1,693 (or 51 percent) were black.(17)
During these years African-Americans were about 12 per cent of the nation's
population.
The nation's death rows have alway=
s had
a disproportionately large population of African-Americans, relative to the=
ir
fraction of the total population. Over the past century, black offenders, as
compared with white, were often executed for crimes less often receiving the
death penalty, such as rape and burglary. (Between 1930 and 1976, 455 men w=
ere
executed for rape, of whom 405 (or 90 percent) were black.) A higher percen=
tage
of the blacks who were executed were juveniles; and blacks were more often
executed than were whites without having their conviction reviewed by any
higher court.(18)
In recent years, it has been widely
believed that such flagrant discrimination is a thing of the past. Since the
revival of the death penalty in the mid-1970s, about half of those on death=
row
at any given time have been black(19) -- a
disproportionately large fraction given the black/white ratio of the total
population, but not so obviously unfair if judged by the fact that roughly =
50
percent of all those arrested for murder were also black.(20) Nevertheless,
when those under death sentence are examined more closely, it turns out that
race is a decisive factor after all.
An exhaustive statistical study of
racial discrimination in capital cases in Georgia, for example, showed that
"the average odds of receiving a death sentence among all indicted cas=
es
were 4.3 times higher in cases with white victims."(21) In 1987 these =
data
were placed before the Supreme Court in McCleskey v.
Kemp and the Court did not dispute the statistical evidence. The Court did
hold, however, that the evidence failed to show that there was "a
constitutionally significant risk of racial bias....&qu=
ot; .
(481 U.S. 279)
In 1990, the U.S. General Accounti=
ng
Office reported to the Congress the results of its review of empirical stud=
ies
on racism and the death penalty. The GAO concluded: "Our synthesis of =
the
28 studies shows a pattern of evidence indicating racial disparities in the
charging, sentencing, and imposition of the death penalty after the Furman
decision" and that "race of victim influence was found at all sta=
ges
of the criminal justice system process...." .
These results cannot be explained =
away
by relevant non-racial factors (such as prior criminal record or type of
crime), and they lead to a very unsavory conclusion: In the trial courts of
this nation, even at the present time, the killing of a white is treated mu=
ch
more severely than the killing of a black. Of the 168 persons executed betw=
een
January 1977 and April 1992, only 29 had been convicted of the killing of a
non-white, and only one of these 29 was himself white.(23) Where the death
penalty is involved, our criminal justice system essentially reserves the d=
eath
penalty for murderers (regardless of their race) who kill white victims.
Both sex and socio-economic class =
are
also factors that enter into determining who receives a death sentence and =
who
is executed. During the 1980s and aerially 1990s, only about I percent of a=
ll
those on death row were women,(24) even though women commit about 15 percen=
t of
all criminal homicides.(25) A third or more of the women under death senten=
ce
were guilty of killing men who had victimized them with years of violent
abuse.(26) Since 1930, only 33 women (12 of them black) have been executed =
in
the United States.(27)
Discrimination against the poor (a=
nd
in our society racial minorities are disproportionately poor) is also well
established. "Approximately ninety percent of those on death row could=
not
afford to hire a lawyer when they were tried."(28) A defendant's pover=
ty,
lack of firm social roots in the community, inadequate legal representation=
at
trial or on appeal--all these have been common factors among death-row
populations. As Justice William O. Douglas noted in Furman, "One searc=
hes
our chronicles in vain for the execution of any member of the affluent stra=
ta
in this society." (408 U.S. 238)
The demonstrated inequities in the
actual administration of capital punishment should tip the balance against =
it
in the judgment of fair-minded and impartial observers. "Whatever else
might be said for the use of death as a punishment, one lesson is clear from
experience: this is a power that we cannot exercise fairly and without
discrimination."(29)
Justice John Marshall Harlan, writ=
ing
for the Court, noted: "...the history of capital punishment for
homicides...reveals continual efforts, uniformly unsuccessful, to identify
before the fact those homicides for which the slayer should die.... Those w=
ho
have come to grips with the hard task of actually attempting to draft means=
of
channeling capital sentencing discretion have confirmed the lesson taught by
history.... To identify before the fact those characteristics of criminal
homicides and their perpetrators which call for the death penalty, and to
express these characteristics in language which can be fairly understood and
applied by the sentencing authority, appears to be tasks which are beyond
present human ability." (McGautha v. Calif=
ornia,
402 U.S . 183 (1971))
Yet in the Gregg decision, the
majority of the Supreme Court abandoned the wisdom of Justice Harlan and ru=
led
as though the new guided-discretion statutes could accomplish the impossibl=
e.
The truth is that death statutes approved by the Court "do not effecti=
vely
restrict the discretion of juries by any real standards. They never will. N=
o society
is going to kill everybody who meets certain preset verbal requirements, pu=
t on
the statute books without awareness of coverage of the infinity of special
factors the real world can produce."(30)
Even if these statutes were to suc=
ceed
in guiding the jury's choice of sentence, a vast reservoir of unfettered
discretion remains: the prosecutor's decision to prosecute for a capital or
lesser crime, the court's willingness to accept or reject a guilt y plea, t=
he
jury's decision to convict for second-degree murder or manslaughter rather =
than
capital murder, the determination of the defendant's sanity, the final deci=
sion
by the governor on clemency.
Discretion in the criminal-justice
system is unavoidable. The history of capital punishment in American society
clearly shows the desire to mitigate the harshness of this penalty by narro=
wing
its scope. Discretion, whether authorized by statutes or by t heir silence,=
has
been the main vehicle to this end. But when discretion is used, as it always
has been, to mark for death the poor, the friendless, the uneducated, the
members of racial minorities, and the despised, then discretion becomes
injustice.
Thoughtful citizens, who in
contemplating capital punishment in the abstract might support it, must con=
demn
it in actual practice.
Unlike
all other criminal punishments, the death penalty is uniquely irrevocable.
Speaking to the French Chamber of Deputies in 1830, years after the excesse=
s of
the French Revolution, which he had witnessed, the Marquis de Lafayette sai=
d,
"I shall ask for the abolition of the punishment of death until I have=
the
infallibility of human judgment demonstrated to me."(31) Although some
proponents of capital punishment would argue that its merits are worth the
occasional execution of innocent people, most would also insist that there =
is
little likelihood of the innocent being executed. Yet a large body of evidence shows that innocent people are often
convicted of crimes, including capital crimes and that some of them have
been executed.
Since 1900, in this country, there
have been on the average more than four cases per year in which an entirely
innocent person was convicted of murder. Scores of these persons were sente=
nced
to death. In many cases, a reprieve or commutation arrived just hours, or e=
ven
minutes, before the scheduled execution. These erroneous convictions have
occurred in virtually every jurisdiction from one end of the nation to the
other. Nor have they declined in recent years, despite the new death penalty
statutes approved by the Supreme Court.(32) Consider this handful of
representative cases:
Each
of the five stories told above has a reassuring ending: The innocent prison=
er
is saved from execution and is released. But when prisoners are executed, no
legal forum exists in which unanswered questions about their guilt can be
resolved. In May 1992, Roger Keith Coleman was executed in Virginia despite
widely publicized doubts surrounding his guilt and evidence that pointed to
another person as the murderer -- evidence that was never submitted at his
trial. Not until late in the appeal process did anyone take seriously the
possibility that the state was about to kill an innocent man, and then effo=
rts
to delay or nullify his execution failed. Was Coleman really innocent? At t=
he
time of his execution, his case was marked with many of the features found =
in
other cases where the defendant was eventually cleared. Were Coleman still =
in
prison, his friends and attorneys would have a strong incentive to resolve
these questions. But with Coleman dead, further inquiry into the facts of t=
he
crime for which h e was convicted is unlikely.
Overzealous prosecution, mistaken =
or
perjured testimony, faulty police work, coerced confessions, the defendant's
previous criminal record, inept defense counsel, seemingly conclusive
circumstantial evidence, community pressure for a conviction -- such factors
help explain why the judicial system cannot guarantee that justice will nev=
er
miscarry. And when it does miscarry, volunteers outside the criminal justice
system -- newspaper reporters, for example -- and not the police or prosecu=
tors
are the ones who rectify the errors. To retain the death penalty in the fac=
e of
the demonstrable failures of the system is unacceptable, especially as there
are no strong counterbalancing factors in favor of the death penalty.
The
traditional mode of execution, still available in a few states, is hanging.
Death on the gallows is easily bungled: If the drop is too short, there wil=
l be
a slow and agonizing death by strangulation. If the drop is too long, the h=
ead
will be torn off.
Two states, Idaho and Utah, still
authorize the firing squad. The prisoner is strapped into a chair, and hood=
ed.
A target is pinned to the chest. Five marksmen, one with blanks, take aim a=
nd
fire.
Electrocution has been the most wi=
dely
used form of execution in this country in this century. The condemned priso=
ner
is led--or dragged--into the death chamber, strapped into the chair, and
electrodes are fastened to head and legs. When the switch is thrown the body
strains, jolting as the voltage is raised and lowered. Often smoke rises fr=
om
the head. There is the awful odor of burning flesh. No one knows how long
electrocuted individuals retain consciousness.
In 1983, the electrocution of John
Evans in Alabama was described by an eyewitness as follows: "At 8:30 p=
.m.
the first jolt of 1900 volts of electricity passed through Mr. Evans' body.=
It
lasted thirty seconds. Sparks and flames erupted ... from the electrode tie=
d to
Mr. Evans' left leg. His body slammed against the straps holding him in the
electric chair and his fist clenched permanently. The electrode apparently
burst from the strap holding it in place. A large puff of grayish smoke and
sparks poured out from under the hood that covered Mr. Evans' face. An
overpowering stench of burnt flesh and clothing began pervading the witness
room. Two doctors examined Mr. Evans and declared that he was not dead.
"The electrode on the left leg
was refastened.... Mr. Evans was administered a second thirty second jolt of
electricity. The stench of burning flesh was nauseating. More smoke emanated
from his leg and head. Again, the doctors examined Mr. Evans. [They] report=
ed
that his heart was still beating, and that he was still alive. At that time=
, I
asked the prison commissioner, who was communicating on an open telephone l=
ine
to Governor George Wallace, to grant clemency on the grounds that Mr. Evans=
was
being subjected to cruel and unusual punishment. The request ... was denied=
.
"At 8:40 p.m., a third charge=
of
electricity, thirty seconds in duration, was passed through Mr. Evans' body=
. At
8:44, the doctors pronounced him dead. The execution of John Evans took
fourteen minutes."(38) Afterwards, officials were embarrassed by what =
one
observer called the "barbaric ritual." The prison spokesman remar=
ked,
"This was supposed to be a very clean manner of administering
death."(39)
An attempt to improve on electrocu=
tion
was the gas chamber. The prisoner is strapped into a chair, a container of
sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into
the acid to form lethal gas. Here is an account of the 1992 execution in
Arizona of Don Harding, as reported in the dissent by U. S. Supreme Court
Justice John Paul Stevens:
"When the fumes enveloped Don=
's
head he took a quick breath. A few seconds later he again looked in my
direction. His face was red and contorted as if he were attempting to fight
through tremendous pain. His mouth was pursed shut and his jaw was clenched
tight. Don then look several more quick gulps of the fumes.
"At this point Don's body sta=
rted
convulsing violently....His face and body fumed a deep red and the veins in=
his
temple and neck began to bulge until I thought they might explode.
"After about a minute Don's f=
ace
leaned partially forward, but he was still conscious. Every few seconds he
continued to gulp in. He was shuddering uncontrollably and his body was rac=
ked
with spasms. His head continued to snap back. His hands were clenched.
"After several more manuals, =
the
most violent of the convulsions subsided. At this time the muscles along Do=
n's
left arm and back began twitching in a wavelike motion under his skin. Spit=
tle
drooled from his mouth.
"Don did not stop moving for
approximately eight minutes, and after that he continued to twitch and jerk=
for
another minute. Approximately two minutes later, we were told by a prison
official that the execution was complete.
"Don Harding took ten minutes=
and
thirty one seconds to die." (Gomez v. U.S. District Court, 112 S.Ct. 1652)
The latest mode of inflicting the
death penalty, enacted into law by nearly two dozen states, is lethal
injection, first used in Texas in 1982. It is easy to overstate the humanen=
ess
and efficacy of this method. There is no way of knowing that it is really
painless. As the U.S. Court of Appeals observed, there is "substantial=
and
uncontroverted evidence ... that execution by lethal injection poses a seri=
ous
risk of cruel, protracted death.... Even a slight error in dosage or
administration can leave a prisoner conscious but paralyzed while dying, a
sentient witness of his or her own asphyxiation." (Chaney v. Heckler, =
718
F.2d 1174 [1983])
Nor does the execution always proc=
eed
smoothly as planned. In 1985 "the authorities repeatedly jabbed needles
into ... Stephen Morin, when they had trouble finding a usable vein because=
he
had been a drug abuser."(40) In 1988, during the execution of Raymond
Landry, "a tube attached to a needle inside the inmate's right arm beg=
an
leaking, sending the lethal mixture shooting across the death chamber toward
witnesses."(41)
Indeed, by its veneer of decency a=
nd
by subtle analogy with life-saving medical practice, death by lethal inject=
ion
makes killing as punishment more acceptable to the public. Even when it pre=
vents
the struggles of the condemned person and avoids maiming the body, it is no
different from hanging or shooting as an expression of the absolute power of
the state over the helpless individual.
Most people observing an execution=
are
horrified and disgusted. "I was ashamed," writes sociologist Rich=
ard
Moran, who witnessed an execution in Texas in 1985. "I was an intruder,
the only member of the public who had trespassed on [the condemned man's]
private moment of anguish. In my face he could see the horror of his own
death."(42) Revulsion at the duty to supervise and witness executions =
is
one reason why so many prison wardens -- however unsentimental they are abo=
ut
crime and criminals -- are opponents of capital punishment.
In some people, however, executions
seem to appeal to strange, aberrant impulses and give an outlet to sadistic
urges. Warden Lewis Lawes wrote of the many req=
uests
he received to watch electrocutions, and told that when the job of executio=
ner
became vacant, "I received more than seven hundred applications for the
position, many of them offering cut-rate prices."(43)
Public executions were common in t=
his
country during the 19th century; one of the last was in 1936 in Kentucky, w=
hen
20,000 people gathered to watch a young African-American male hanged.(44) Delight in brutality, pain, violence, and death =
may
always be with us. But surely we must conclude that it is best for the law =
not
to encourage these impulses. When the government sanctions, commands, and
ceremoniously carries out the execution of a prisoner, it lends support to =
this
destructive side of human nature.
More than two centuries ago, the
Italian jurist Cesare Becc=
aria,
in his highly influential treatise On Crimes and Punishments (1764), assert=
ed:
"The death penalty cannot be useful, because of the example of barbari=
ty
it gives men." True, and even if the death penalty were a
"useful" deterrent, it would still be an "example of
barbarity." No society can safely entrust the enforcement of its laws =
to
torture, brutality, or killing. Such methods are inherently cruel and will
always mock the attempt to cloak them in justice. As Supreme Court Justice
Arthur J. Goldberg wrote, "The deliberate institutionalized taking of
human life by the state is the greatest conceivable degradation to the dign=
ity
of the human personality."(45)
Justice,
it is often insisted, requires the death penalty as the only suitable
retribution for heinous crimes. This claim will not bear scrutiny. All
punishment by its nature is retributive, not only the death penalty. Whatev=
er
legitimacy, therefore, is to be found in punishment as just retribution can=
in
principle be satisfied without recourse to executions.
It is also obvious that the death
penalty could be defended on narrowly retributive grounds only for the crim=
e of
murder, and not for any of the many other crimes that have frequently been =
made
subject to this mode of punishment (rape, kidnapping, espionage, treason, d=
rug
kingpins). Few defenders of the death penalty are willing to confine themse=
lves
consistently to the narrow scope afforded by retribution. In any case,
execution is more than a punishment exacted in retribution for the taking o=
f a
life.
As Camus wrote, "For there to=
be
equivalence, the death penalty would have to punish a criminal who had warn=
ed
his victim of the date at which he would inflict a horrible death on him and
who, from that moment onward, had confined him at his mercy for months. Suc=
h a
monster is not encountered in private life."(46)
It is also often argued that death=
is
what murderers deserve, and that those who oppose the death penalty violate=
the
fundamental principle that criminals should be punished according to their
deserts--"making the punishment fit the crime."
If this principle is understood to
require that punishments are unjust unless they are like the crime itself, =
then
the principle is unacceptable. It would require us to rape rapists, torture
torturers, and inflict other horrible and degrading punishment s on offende=
rs.
It would require us to betray traitors and kill multiple murderers again and
again, punishments impossible to inflict. Since we cannot reasonably aim to
punish all crimes according to this principle, it is arbitrary to invoke it=
as
a requirement of justice in the punishment of murderers.
If, however, the principle of just
deserts is understood to require that the severity of punishments must be
proportional to the gravity of the crime, and that murder being the gravest
crime deserves the severest punishment, then the principle is no doubt soun=
d.
But it does not compel support for the death penalty. What it does require =
is
that crimes other than murder be punished with terms of imprisonment or oth=
er
deprivations less severe than those used in the punishment of murder.
Criminals no doubt deserve to be
punished, and punished with severity appropriate to their culpability and t=
he
harm they have caused to the innocent. But severity of punishment has its
limits -- imposed both by justice and our common human dignity. Governments
that respect these limits do not use premeditated, violent homicide as an
instrument of social policy.
Some whose loved one was a murder
victim believe that they cannot rest until the murderer is executed. But th=
e feeling
is by no means universal. Coretta Scott King has observed, "As one who=
se
husband and mother-in-law have died the victims of murder assassination, I
stand firmly and unequivocally opposed to the death penalty for those convi=
cted
of capital offenses. An evil deed is not redeemed by an evil deed of
retaliation. Justice is never advanced in the tacking of a human life. Mora=
lity
is never upheld by a legalized murder."(47)
Kerry Kennedy, daughter of the sla=
in
Senator Robert Kennedy, has written: "I was eight years old when my fa=
ther
was murdered. It is almost impossible to describe the pain of losing a pare=
nt
to a senseless murder.... But even as a child one thing was clear to me: I
didn't want the killer, in turn, to be killed. I remember lying in bed and =
praying,
'Please, God. Please don't take his life, too.' I saw nothing that could be
accomplished in the loss of one life being answered with the loss of anothe=
r.
And I knew, far too vividly, the anguish that would spread through another
family -- another set of parents, children, brothers, and sisters thrown in=
to
grief."(48)
It
is sometimes suggested that abolishing capital punishment is unfair to the
taxpayer, as though life imprisonment were obviously more expensive than
executions. If one takes into account all the relevant costs, the reverse is
true. "The death penalty is not now, nor has it ever been, a more
economical alternative to life imprisonment."(49)
A murder trial normally takes much
longer when the death penalty is at issue than when it is not. Litigation c=
osts
- including the time of judges, prosecutors,public defenders, and court reporters, and the=
high
costs of briefs -- are all borne by the taxpayer.
A 1982 study showed that were the
death penalty to be reintroduced in New York, the cost of the capital trial
alone would be more than double the cost of a life term in prison.(50)
In Maryland, a comparison of capit=
al
trial costs with and without the death penalty for the years 1979-1984
concluded that a death penalty case costs "approximately 42 percent mo=
re
than a case resulting in a non-death sentence."(51) In 1988 and 1989 <=
span
class=3DSpellE>th e Kansas legislature voted against reinstating the=
death
penalty after it was informed that reintroduction would involve a first-year
cost of "more than $ 11 million."(52) Florida, with one of the
nation's largest death rows, has estimated that the true cost of each execu=
tion
is approximately $3.2 million, or approximately six times the cost of a
life-imprisonment sentence.(53)
The only way to make the death pen=
alty
a "better buy" than imprisonment is to weaken due process and cur=
tail
appellate review, which are the defendant's (and society's) only protections
against the grossest miscarriages of justice. The savings in dollar s would=
be
at the cost of justice: In nearly half of the death-penalty cases given rev=
iew
under federal habeas corpus, the conviction is overturned.(54)
The
media commonly report that the American public overwhelmingly supports the
death penalty. More careful analysis of public attitudes, however, reveals =
that
most Americans would oppose the death penalty if convicted murderers were
sentenced to life without parole and were required to make some form of
financial restitution. In California, for example, a Field Institute survey
showed that in 1990,82 percent approved in princ=
iple
of the death penalty. But when asked to choose between the death penalty and
life imprisonment plus restitution, only a small minority--26
percent--continued to favor executions.(53)
A comparable change in attitude to=
ward
the death penally has been verified in many oth=
er
states and contradicted in none.
The
death penalty in the United States needs to be put into international
perspective. In 1962, it was reported to the Council of Europe that "t=
he
facts clearly show that the death penalty is regarded in Europe as somethin=
g of
an anachronism...."(56)
Today, 28 European countries have
abolished the death penalty either in law or in practice. In Great Britain,=
it
was abolished (except for treason) in 1971; France abolished it in 1981. Ca=
nada
abolished it in 1976. The United Nations General Assembly affirmed in a for=
mal
resolution that, throughout the world, it is desirable to "progressive=
ly
restrict the number of offenses for which the death penalty might be impose=
d,
with a view to the desirability of abolishing this punishment."(57)
Conspicuous by their indifference =
to
these recommendations are nations generally known for their disregard for t=
he
human rights of their citizens: China, Iraq, Iran, South Africa, and the fo=
rmer
Soviet Union.(58) Americans ought to be embarrassed to find themselves link=
ed
with the governments of such nations in retaining execution as a method of
crime control.
Opposition to the death penalty in=
the
United States is widespread and diverse. Catholic, Jewish, and Protestant
religious groups, national organizations representing people of color, and
public-interest law groups are among the more than fifty national organizat=
ions
that constitute the National Coalition to Abolish the Death Penalty.
Once in use everywhere and for a w=
ide
variety of crimes, the death penalty today is generally forbidden by law and
widely abandoned in practice. The unmistakable worldwide trend is toward the
complete abolition of capital punishment.
Additional
copies of this pamphlet, as well as resource materials such as newsletters,
books, legal and legislative information, death-row census, reprinted artic=
les,
bibliographies, and referrals to other national and state-wide anti-death
penalty groups may be obtained from the Capital Punishment Project, American
Civil Liberties Union, 122 Maryland Avenue N.E., Washington, D.C., 20002. <=
span
class=3DSpellE>Diann Y. Rust-Tierney, Esq., is the project's directo=
r. The
National Coalition to Abolish the Death Penalty, which coordinates the work=
of
a wide variety of organizations opposed to capital punishment, is located at
1325 G St. N.W. Lower Level B, Washington, D.C., 20005.
No one volume on the death penalty
currently serves as an up-to-date source book on all aspects of the subject.
The Death Penalty in America, 3rd ed., ed. Hugo Adam B=
edau,
Oxford University Press, 1982, is still useful, and a new edition is in
preparation. Many other recent volumes contain valuable information and
argument, including: Welsh S. White, The Death Penalty in the Nineties,
University of Michigan Press,1991; Samuel R. Gross and Robert Mauro, Death =
and
Discrimination, Northeastern University Press, 1989; Michael L. Radelet, ed., Facing the Death Penalty, Temple Univer=
sity
Press, 1989; Kenneth C. Haas and James A. Inciardi,
eds., Challenging Capital Punishment, Sage Publications, 1988; United State=
s of
America -- The Death Penalty, Amnesty International Publications, 1987;
Franklin E. Zimring and Gordon Hawkins, Capital
Punishment and the American Agenda, Cambridge University Press, 1986; Willi=
am
J. Bowers, Legal Homicide: Death as Punishment in America, 1864-1982,
Northeastern University Press , 1984; Charles L. Black, Jr., Capital Punish=
ment,
2nd ed., W. W. Norton, 1981. The wealth of scholarly literature up through =
1988
can be traced with the help of Capital Punishment in America: An Annotated
Bibliography, Garland Publishing, 1988, edited by Michael L. Radelet and Margaret Vandiver.
Four more specialized volumes dese=
rve
mention as well: Michael L. Radelet, Hugo Adam =
Bedau, and Constance E. Putnam, In Spite of Innocence:
Erroneous Convictions in Capital Cases, Northeastern University Press, 1992;
Robert M. Bohm, ed., The Death Penalty in Ameri=
ca:
Current Research. Anderson Publishing Co., 1991: Victor T. Streib,
Death Penalty for Juveniles, Indiana University Press, 1987; and Louis P. <=
span
class=3DSpellE>Masur, Rites of Execution: Capital Punishment and the
Transformation of American Culture, 1776-1865 , Oxford University Press, 19=
89.
Several scholarly and legal journa=
ls
have devoted whole issues to various legal, sociological, and historical
aspects of the problem of the death penalty, notably Dickinson Law Review, =
vol.
95, no. 4, Summer 1991; New York University Review of Law & Social Chan=
ge,
vol. 18, nos. 2 and 3, 1990-1991; Albany Law Review, vol. 54, nos. 3/4, 199=
0;
Loyola of Los Angeles Law Review, vol. 23, no. 1, November 1989; Journal of
Contemporary Criminal Justice, vol. 5, no. 4, December 1989; Law and Human
Behavior, vol. 8, nos. 1/2, June 1984; U.C. Davis Law Review, vol. 18, no. =
4,
summer 1985; Journal of Criminal Law and Criminology. vol. 74, no. 3, fall
1983.
Among the recent U.S. government
publications containing information of general interest are: "The Fede=
ral
Death Penalty Act of 1989," Report of the Senate Committee on the
Judiciary, 101st Congress, 1st Session, October 1989; "Death
Penalty," Hearings Before Committee on the Judiciary, U.S. Senate, 101=
st
Congress, 1st Session, September-October 1989; "Establishing
Constitutional Procedures for the Imposition of Capital Punishment,"
Report of the Senate Committee on the Judiciary, 99th Congress, 2d Session,
April 1986; "Capital Punishment," Hearings Before Subcommittee on=
Criminal
Justice, U.S. House of Representatives, 99th Congress, 1st and 2d Sessions,
November 1985-July 1986; "Death Penalty Legislation," hearing Bef=
ore
the Committee on the Judiciary, U.S. Senate, 99th Congress, 1st Session,
September 1985. For earlier federal government publications, see the
bibliography by Radelet and Vandiver,
pp. 219-20.
Statistical information on death
sentences and executions since 1930 may be obtained in the U.S. Bureau of
Justice Statistics Bulletin, Capital Punishment, an
annual report appearing under various titles since the 1950s. The NAACP Leg=
al
Defense and Educational Fund publishes "Death Row, U.S.A.," issued
since the 1970s several times a year; it reports current demographic
information on executions and the death row population. Notes
Revised July 1992.