The world has come a long way in securing human rights and promoting high moral grounding. However, a fundamental problem exists with capital punishment in this country – its inability to be reversed and the flaw-ridden system which invokes it. Capital punishment sentences innocent men/women to their deaths using a defective legal system and shaky moral reasoning as its tools.
The most common of moral arguments against the death penalty is as follows: Killing is immoral any way you look at it including capital punishment. For those of us with a Judeo-Christian upbringing, it is countered as such: ‘Kill’ in the original Hebrew was misinterpreted in the King James from its original connotation – murder. This makes “killing” acceptable in certain situations including self-defense and justifiable war. Accordingly capital punishment is tolerable as it’s society’s means of self-defense. Three fundamental errors are made in this approach. First, society as a whole is not in danger of complete destruction as an individual or nation would be in self-defensive action. Second, terminal force is not the only option society has for dealing with an individual, a necessary ground in a plea of self-defense. Finally, capital punishment has proven itself inadequate in achieving the goal that justifies its use. Furthermore, once a prisoner has been incarcerated and immobilized, the process by which they are executed becomes more premeditated and less self-defensive. Moral arguments aside, there are still acute problems with the system that enforces the death penalty in this country.
Although guaranteed by the Sixth Amendment, the right to an attorney does not always ensure that the attorney in question is competent. By now, many are familiar with a popular Texas case in which a defense attorney in a capital murder case slept through part of his client’s trial. In this same case, the defense attorney also failed to object when the prosecution urged jurors to seek the death penalty due to the defendant’s homosexuality (Tigar, 3). This may be an extreme case of incompetence but bear in mind that equally damaging incompetence has not been eradicated. Interestingly, an independent inquiry by the Chicago Tribune confirmed that 33 death row inmates in Illinois alone had been represented by lawyers that had either been disbarred or suspended from practice at some point in their career (Christian Century, 1). In 1990, the National Law Journal (NLJ) performed a survey conducted in six states on the competence of defense counsel in capital cases. The results were astonishing. Amongst their findings, the NLJ concluded that (a) “trial lawyers who represented death row inmates in the six states were disbarred, suspended, or otherwise disciplined at a rate three to forty-six times the discipline rates for lawyers in those states”, (b) “there were wholly unrealistic statutory fee limits on defense representation [in a capital case]”, (c) “nonexistent standards for appointment of counsel”, and (d) “capital trials were completed in one to two days, in contrast to two-week or two-month long trials in some states…where indigent defense systems were operating” (Tigar, 3). Another study carried out by Columbia Law School found that fundamental legal errors existed in two-thirds of all capital cases heard in the nation since the Supreme Court upheld the constitutionality of the death penalty in 1978 (Tigar, 2). There is a fundamental wrongdoing when a man convicted of drunk driving can afford the best lawyer the land can offer and yet a (typically) poor citizen facing death is only afforded a court appointed lawyer with often little or no experience in capital murder trials. Competent lawyers should be a must in cases where the stakes are the highest.
Jury selection also plays a significant role in the sentencing of innocent persons. As of a court decision in Witherspoon v. Illinois (1968), “death qualification” became an integral part of jury selection in capital cases (Conrad, 2). Here, the Supreme Court ruled that the state could not exclude a juror on the grounds that they “might hesitate to return a verdict inflicting [death]”. Twelve years later however, in Adams v. Texas (1980), the court reversed this decision and asserted that prosecutors could disqualify jurors with reservations over the death penalty as impeding the state’s ability to carry out a “constitutionally valid death penalty scheme” (Conrad, 2). A “substantial impairment” rule was implemented declaring that jurors with uncertainty over the death penalty would impair their own duty as a juror. The principles established in this case were later clarified in Wainwright v. Witt (1980), which significantly expanded upon the “substantial impairment” rule making it easier for prosecutors to weed out the more lenient jurors(Conrad, 2). Operationally, the process works like this. First, the judge and both attorneys question potential jurors individually. Any juror that expresses the slightest reservation over capital punishment can be crossed off the list including those that would only agree to its use under unusual circumstances. After this, both attorneys are afforded the chance to strike a certain number of jurors off the list of their own choosing. The argument goes as follows: By creating increasingly stringent guidelines for jury selection in capital cases, you are not taking an accurate representation of the community. Studies have shown that women and minorities are removed from capital case juries at a much higher rate than white males; furthermore that those jurors that make it through this process are “not only biased towards sentencing convicted defendants to death (as opposed to life in prison), but biased towards convicting the accused as well” (Conrad 1). Opponents argue that a jury of such should not be ruled unconstitutional on grounds that it resulted from a “state ordained process” when the same jury could be constructed by “mere chance” (Conrad, 3). This train-of-thought is flawed though as the Constitutional interpretation ensures a cross-section of society rather than a jury of those most prone to convict. Conrad points out that if an all male, female, single race, or entirely Republican jury were to convene out of mere chance it would be no more constitutional than these “death-qualified” juries (3). The fact remains that these juries are fully unconstitutional and studies have upheld the following convictions: “(1) jurors excluded because of their inability to impose the death penalty are more attitudinally disposed to favor the accused than are non-excluded jurors; (2) excluded jurors are more likely to be black or female than non-excluded jurors; and (3) excluded jurors are more likely to actually acquit the accused than non-excluded jurors (Conrad, 2). Until we can offer the accused a fair trial in front of a “jury of their peers”, society should not endeavor to assign death to any person.
The flaws do not end here. With the advent of DNA testing, scores of death row inmates have been found to be completely innocent of the crimes for which they were convicted. Since 1973, over 100 inmates sentenced to death have been exonerated due to post-trial evidence (Talkleft, 1). In fact, the ratio of exonerated inmates to executions is one to seven nationwide since 1976 (Lovinger, 1). In Illinois alone (1977-2000), 14 people have been freed from death row – more than were executed over the same length of time (Hall, 1). Staggering statistical data shows us the horror and reality of what our justice system is capable of. In executions predating DNA testing procedures, the odds are that dozens of innocent people have met an unwarranted death.
Cruel and unusual punishment, prohibited by the Eighth Amendment, has all but failed to encompass capital punishment. Proponents argue that the methods used today ensure near instantaneous death and do not torture the condemned. In 1888, the electric chair was first introduced in New York as a more humane method of administering death (Fairrie, 2). This method has proved anything but humane. In several instances, inmates have not died on the first round of shocks, leaving them badly burned and in agonizing pain. In one case, John Evans, a condemned man, was shocked in installments for fourteen minutes and pronounced alive by doctors twice before he died (Keys, 4). One of the most convincing arguments against the chair is that both courts and the American Veterinarian Medical Association have found electrocution unfit and inhumane as a means to put animals to sleep (Keys, 12). Most states have ruled out the use of “old sparky” and now rely on lethal injections and gas chambers as the alternative. Witnesses under these methods have been quoted saying, “he just fell asleep,” but this is far from the truth. Hypoxia caused by the inhaling of cyanide gas results in epileptic spasms accompanied by possible stomach pain and difficulty breathing (Fairrie, 3). In a California case, the execution of Aaron Mitchell by means of lethal gas was reported as taking seven minutes to complete. A journalist at the scene, Howard Brodie, vividly reported, “his head came up and he looked directly into the window I was standing next to. For nearly seven minutes, he sat up that way, with his chest heaving, saliva bubbling between his lips” (Fairrie, 4). Lethal injection has its quirks as well. The creator of the lethal injection table, Fred Leuchter, confessed that some 80% of Texas cases since 1977 had problems with the process (Fairrie, 6). It was not uncommon for prisoners to “choke, cough, spasm, and writhe as they die[d]” (Fairrie, 6). Because doctors are forbidden to participate in the administration of death, accidents are more prone to occur. In the case of Jason Autry, death took nearly ten minutes and the prisoner was conscious for several minutes complaining of pain (Fairrie, 6). Incorrect mixtures of the drugs caused another inmate to “choke and heave throughout his execution” (Fairrie, 6). The means by which the nation has chosen to execute its prisoners are no less cruel and unusual than hanging and burning were centuries ago; they merely mask the act for the benefit of those observing.
More practical reasons for opposing capital punishment do exist. It has been estimated that the execution process after initial conviction may run as high as $2.5M (Economist, 1). This figure is just over four times higher than the costs of housing an inmate for life. Texas alone could stand to save nearly $400M if it abolished the death penalty. Aside from the monetary aspect, capital punishment has proven ineffective in deterring potential killers. In fact, studies show that places that have had an active death penalty for some time tend to have higher crime rates than places without. In Texas, which has more executions than any other state, homicide rates have remained relatively constant (DPIC, 1). Conclusions from this particular study revealed that there was no evidence suggesting that the number of executions could be related to felony rates including homicides. In a similar study conducted in California just after a 25-year moratorium on the death penalty had expired, the eight months following the first execution yielded slightly higher homicide rates than before the execution (DPIC, 2).
The American judicial system is not perfect and no system is. Most of the world has rejected the notion of capital punishment. Strikingly, the United States is amongst the six nations in the world that continue to execute juveniles. The others are Pakistan, Iran, Nigeria, Saudi Arabia, and Yemen. Anything look strange here? Yes, the US is the only democratic state on the list. The high moral road coupled with both a seriously flawed legal system and practical reasoning demonstrates the need to abstain from executions. Above all, no one will argue that killing innocent man/women is acceptable. If the nation as a whole chooses to keep the practice alive, a nation-wide moratorium should be raised until the legal system can be fixed. Leading the world in so many other fields and an advocate of human rights worldwide, it is curious how the US can lag so far behind much of the world in this particular area.
Sources:
“California Death Row Statistics.” Untitled. (Revision Date N/A). Death Penalty Focus. 4/23/03. < http://208.55.30.156/facts/other/facts_statistics.shtml>.
“Does Death Work.” The Economist Vol. 333 12/10/94, p27
“New Deterrence Studies.” Facts about Deterrence and the Death Penalty. 2003. Death Penalty Information Center. 4/23/03.
< http://www.deathpenaltyinfo.org/article.php?scid=12&did;=167>.
“We Must Pass the Innocent Protection Act.” The Politics of Crime. 2/16/03. TalkLeft. 4/23/02. < http://www.talkleft.com/archives/002313.html>.
Conrad, Clay. “Death Qualification Leads to Biased Juries” USA Today Magazine, Vol. 129 Issue 2670, Mar 2001: p20
Hall, David. “Death and the Lucky Thirteen.” (Revision Date N/A). American Partisan. 4/23/03 < http://www.american-partisan.com/cols/hall/042500.htm>.
Klaas, Marc. “Voices From the Front” NEA Today, Vol. 20 Issue 2, Oct2001: p23
Lovinger, Caitlin. “Death Row’s Living Alumni.” Protest Net. (Revision Date N/A). Protest.net. 4/23/03. < http://www.protest.net/view.cgi?view=1501>.
Fairrie, Laura. “Execution as Torture.” Peace Review. Vol. 13 (2001). p. 511
Tigar, Michael. “Lawyers, Jails, and the Law’s Fake Bargains.” Monthly Review: An Independent Socialist Magazine, Vol. 53 Issue 3, Jul/Aug2001, p29
