Report: Capital Punishment
ACLU Analysis
Eight
Objections To The Death Penalty
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[Comment by Kwing Hung: ACLU is an
instrument of Satan.]
The
Case Against The Death Penalty
Hugo Adam Bedau for ACLU
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TABLE OF CONTENTS
INTRODUCTION
EIGHT OBJECTIONS TO THE DEATH PENALTY
Capital Punishment Is Not A Deterrent To Capital
Crimes
Capital Punishment Is Unfair
Capital Punishment Is Irreversible
Capital Punishment Is Barbarous
Capital Punishment Is Unjustified Retribution
Capital Punishment Costs More Than Incarceration
Capital Punishment Is Less Popular Than the
Alternatives
Internationally, Capital Punishment Is Widely
Viewed As
Inhumane And Anachronistic
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The American Civil Liberties Union believes the
death penalty inherently violates the constitutional ban against cruel and
unusual punishment and the guarantees of due process of law and of equal
protection under the law. Furthermore, we hold that the state should not
arrogate unto itself the right to kill human beings – especially when it kills
with premeditation and ceremony, in the name of the law or in the name of its
people, or when it does so in an arbitrary and discriminatory fashion.
Capital punishment is an intolerable denial of
civil liberties, and is inconsistent with the fundamental values of our
democratic system. Therefore, through litigation, legislation, commutation and
by helping to foster a renewed public outcry against this barbarous and
brutalizing institution, we strive to prevent executions and seek the abolition
of capital punishment.
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 Court,
concentrating its objections on the manner in which death penalty laws had been
applied, found the result so “harsh, freakish, and arbitrary” as to be
constitutionally unacceptable. Making the nationwide impact of its decision
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 Furman decision,
several hundred persons had been sentenced to death under new capital
punishment statutes written to provide guidance to juries in sentencing. These
statutes typically require a 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 1976, the Supreme Court moved away from
abolition, holding that “the punishment of death does not invariably violate
the Constitution.” The Court ruled that the new death penalty 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). Subsequently 38 state legislatures and the Federal government
have enacted death penalty statutes patterned after those the Court upheld in
Gregg. 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 as of May 1997,
over 3,200 men and women were under a death sentence and more than 360 had been
executed.
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Despite the Supreme Court’s 1976 ruling in Gregg
v. Georgia, the ACLU continues to oppose capital punishment on moral,
practical, and constitutional grounds:
* Capital punishment is cruel and unusual. It is
cruel because it is a relic of the earliest days of penology, when slavery,
branding, and other corporal punishments were commonplace. Like those barbaric
practices, executions have no place in a civilized society. It is unusual
because only the United States of all the western industrialized nations
engages in this punishment.
* Opposing the death penalty does not mean
sympathy with convicted murderers. On the contrary, murder demonstrates a lack
of respect for human life. For this very reason, murder is abhorrent, and a
policy of state-authorized killings is immoral. It epitomizes the tragic
inefficacy and brutality of violence, rather than reason, as the solution to
difficult social problems.
* Capital punishment denies due process of law.
Its imposition is often arbitrary, and always irrevocable – forever depriving
an individual of the opportunity to benefit from new evidence or new laws that
might warrant the reversal of a conviction, or the setting aside of a death
sentence.
* The death penalty violates the constitutional
guarantee of equal protection. It is applied randomly – and discriminatorily.
It is imposed disproportionately upon those whose victims are white, offenders
who are people of color, and on those who are poor and uneducated.
* Changes in death sentencing have proved to be
largely cosmetic. The defects in death-penalty laws, conceded by the Supreme
Court in the early 1970s, have not been appreciably altered by the shift from
unrestrained discretion to “guided discretion.” Such changes in death
sentencing merely mask the impermissible randomness of a process that results
in an execution.
* The death penalty is not a viable form of
crime control. When police chiefs were asked to rank the factors that, in their
judgement, reduce the rate of violent crime, they mentioned curbing drug use
and putting more officers on the street, longer sentences and gun control. They
ranked the death penalty as least effective.1 Politicians who preach the
desirability of executions as a method of crime control deceive the public and
mask their own failure to identify and confront the true causes of crime.
* Capital punishment wastes resources. It
squanders the time and energy of courts, prosecuting attorneys, defense
counsel, juries, and courtroom and correctional personnel. It unduly burdens
the criminal justice system, and it is thus counterproductive as an instrument
for society’s control of violent crime.
* A society that respects life does not
deliberately kill human beings. An execution is a violent public spectacle of
official homicide, and one that endorses killing to solve social problems – the
worst possible example to set for the citizenry. Governments worldwide have
often attempted to justify their lethal fury by extolling the purported
benefits that such killing would bring to the rest of society. The benefits of
capital punishment are illusory, but the bloodshed and the resulting
destruction of community decency are real.
Two conclusions are inescapable: Capital
punishment does not deter crime, and the death penalty is uncivilized in theory
and unfair and inequitable in practice.
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Deterrence is a function not only of a
punishment’s severity, but also of its certainty and frequency. The argument
most often cited in support of capital punishment is that the threat of
execution influences criminal behavior more effectively than imprisonment does.
As plausible as this claim may sound, in actuality the death penalty fails as a
deterrent for several reasons.
CAPITAL PUNISHMENT IS NOT A DETERRENT TO MURDER
Ratio of Executions to the National Murder Rate:
1976-1995
YEAR #
OF EXECUTIONS NATIONAL MURDER
RATE
1976
0 8.8
1977
1 8.8
1978
0 9
1979
2 9.7
1980
0 10.2
1981
1 9.8
1982
2 9.1
1983
5 8.3
1984
21 7.9
1985
18 7.9
1986
18 8.6
1987
25 8.3
1988
11 8.3
1989
16 8.7
1990
23 9.4
1991
14 9.8
1992
31 9.3
1993
38 9.5
1994
31 9
1995
56 8
Source: Death Penalty Information Center,
Washington, D.C.
1) A punishment can be an effective deterrent
only if it is consistently and promptly employed. Capital punishment cannot be
administered to meet these conditions.
* The proportion of first-degree murderers who
are sentenced to death is small, and of this group, an even smaller proportion
of people are executed. Although death sentences in the mid-1990s have
increased to about 300 per year,2 this is still only about one percent of all
homicides known to the police.3 Of all those convicted on a charge of criminal
homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death.4
* Mandatory death row sentencing is
unconstitutional. 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).
* A considerable time between the imposition of
the death sentence and the actual execution is unavoidable, given the
procedural safeguards required by the courts in capital cases. Starting with
selecting the trial jury, murder trials take far longer when the ultimate
penalty is involved. Furthermore, post-conviction appeals in death-penalty
cases are far more frequent than in other cases. These factors increase the
time and cost of administering criminal justice.
We can reduce delay and costs only by abandoning
the procedural safeguards and constitutional rights of suspects, defendants,
and convicts – with the attendant high risk of convicting the wrong person and
executing the innocent.
2) Persons who commit murder and other crimes of
personal violence either may or may not premeditate their crimes.
* When crime is planned, the criminal ordinarily
concentrates on escaping detection, arrest, and conviction. The threat of even
the severest punishment will not discourage those who expect to escape
detection and arrest. It is impossible to imagine how the threat of any punishment
could prevent a crime that is not premeditated. 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.
* Most capital crimes are committed in the heat
of the moment. Most capital crimes are committed during moments of great
emotional stress or under the influence of drugs or alcohol, when logical
thinking has been suspended. In such cases, violence is inflicted by persons
heedless of the consequences to themselves as well as to others. Furthermore,
the death penalty is a futile threat for political terrorists because they
usually act in the name of an ideology that honors its martyrs.
* Capital punishment doesn’t solve our society’s
crime problem. Threatening capital punishment leaves the underlying causes of
crime unaddressed, and ignores the many political and diplomatic sanctions
(such as treaties against asylum for international terrorists) that could appreciably
lower the incidence of terrorism.
* Capital punishment is a useless weapon in the
so-called “war on drugs.” The attempt to reduce murders in the drug trade by
threat of severe punishment ignores the fact that anyone trafficking in illegal
drugs is already risking his life in violent competition with other dealers. It
is irrational to think that the death penalty – a remote threat at best – will
avert 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 deter any rational
person from committing a violent crime.
* 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.
Death-penalty states as a group do not have lower rates of criminal homicide
than non-death-penalty states. During the early 1970’s death-penalty states
averaged an annual rate of 7.9 criminal homicides per 100,000 population;
abolitionist states averaged a rate of 5.1.5
* Use of the death penalty in a given state may
actually increase the subsequent rate of criminal homicide. In Oklahoma, for
example, reintroduction of executions in 1990 may have produced “an abrupt and
lasting increase in the level of stranger homicides” in the form of “one
additional stranger-homicide incident per month.” Why? Perhaps because “a
return to the exercise of the death penalty weakens socially based inhibitions
against the use of lethal force to settle disputes…. “6
* In adjacent states – one with the death
penalty and the other without it – the state that practices the death penalty
does not always show a consistently lower rate of criminal homicide. For
example, between l990 and l994, the homicide rates in Wisconsin and Iowa
(non-death-penalty states) were half the rates of their neighbor, Illinois –
which restored the death penalty in l973, and by 1994 had sentenced 223 persons
to death and carried out two executions.7
* On-duty police officers do not suffer a higher
rate of criminal assault and homicide in abolitionist states than they do in
death-penalty states. Between l973 and l984, for example, lethal assaults
against police were not significantly more, or less, frequent in abolitionist
states than in death-penalty states. There is “no support for the view that the
death penalty provides a more effective deterrent to police homicides than
alternative sanctions. Not for a single year was evidence found that police are
safer in jurisdictions that provide for capital punishment.”8
* Prisoners and prison personnel do not suffer a
higher rate of criminal assault and homicide from life-term prisoners in
abolition states than they do in death-penalty states. Between 1992 and 1995,
176 inmates were murdered by other prisoners; the vast majority (84%) were
killed in death penalty jurisdictions. During the same period about 2% of all
assaults on prison staff were committed by inmates in abolition jurisdictions.9
Evidently, the threat of the death penalty “does not even exert an incremental
deterrent effect over the threat of a lesser punishment in the abolitionist
states.”10
Actual experience thus establishes beyond a
reasonable doubt that the death penalty does not deter murder. No comparable
body of evidence contradicts that conclusion.
Using methods pioneered by economists, three
investigators concluded that capital punishment does deter murderers.11
Subsequently, however, several qualified investigators independently examined
these claims – and all rejected them.12 In its thorough report on the effects
of criminal sanctions on crime rates, the National Academy of Sciences
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, 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.14
Although inflicting the death penalty guarantees
that the condemned person will commit no further crimes, it does not have a
demonstrable deterrent effect on other individuals. Further, it is a high price
to pay when studies show that few convicted murderers commit further crimes of
violence.15 Researchers examined the prison and post-release records of 533
prisoners on death row in 1972 whose sentences were reduced to incarceration
for life by the Supreme Court’s ruling in Furman. This research showed that
seven had committed another murder. But the same study showed that in four
other cases, an innocent man had been sentenced to death.16
Recidivism among murderers does occasionally
happen, but it occurs less frequently than most people believe; the media
rarely distinguish between a convicted offender who murders while on parole,
and a paroled murderer who murders again. Government data show that about one
in twelve death row prisoners had a prior homicide conviction.17 But as there
is no way to predict reliably which convicted murderers will try to kill again,
the only way to prevent all such recidivism is to execute every convicted
murderer – a policy no one seriously advocates. Equally effective but far less
inhumane is a policy of life imprisonment without the possibility of parole.
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Constitutional due process and elementary
justice both 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, 88 percent of
all executions have been for this crime), there has been substantial evidence
to show that courts have sentenced some persons to prison while putting others
to death in a manner that has been arbitrary, racially biased, and unfair.
Racial discrimination was one of the grounds on
which the Supreme Court ruled the death penalty unconstitutional in Furman.
Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal
reported that “the South makes the widest application of the death penalty, and
Negro criminals come in for much more than their share of the executions.” A
recent study of the death penalty in Texas shows that the current capital
punishment system is an outgrowth of the racist “legacy of slavery.”18 Between
1930 and the end of 1996, 4,220 prisoners were executed in the United States;
more than half (53%) were black.19
Our nation’s death rows have always held a
disproportionately large population of African Americans, relative to their
percentage of the total population. Comparing black and white offenders over
the past century, the former were often executed for what were considered
less-than-capital offenses for whites, such as rape and burglary. (Between 1930
and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were
black.) A higher percentage of the blacks who were executed were juveniles; and
the rate of execution without having one’s conviction reviewed by any higher
court was higher for blacks.20
In recent years, it has been widely believed
that such flagrant racial discrimination is a thing of the past. However, 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.21 Of the 3,200 prisoners on death row in
1996, 40% were black. This rate is not so obviously unfair if one considers
that roughly 50 percent of all those arrested for murder were also black.22
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 cases were 4.3
times higher in cases with white victims.”23 In 1987 these data were placed
before the Supreme Court in McCleskey v. Kemp and while the Court did not
dispute the statistical evidence, it held that evidence of an overall pattern
of racial bias was not sufficient. Mr. McCleskey would have to prove racial
bias in his own case – an impossible task. The Court also held that the
evidence failed to show that there was “a constitutionally significant risk of racial
bias....”(481 U.S. 279) Although the Supreme Court declared that the remedy
sought by the plaintiff was “best presented to the legislative bodies,”
subsequent efforts to persuade Congress to remedy the problem by enacting the
Racial Justice Act were not successful.24
In 1990, the U.S. General Accounting Office
reported to the Congress the results of its review of empirical studies 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 stages of the
criminal justice system process....”25
These results cannot be explained away by
relevant non-racial factors, such as prior criminal record or type of crime.
Furthermore, they lead to a very unsavory conclusion: In the trial courts of
this nation, even at the present time, the killing of a white person is treated
much more severely than the killing of a black person. Of the 313 persons
executed between January 1977 and the end of 1995, 36 had been convicted of
killing a black person while 249 (80%) had killed a white person. Of the 178
white defendants executed, only three had been convicted of murdering people of
color.26 Our criminal justice system essentially reserves the death penalty for
murderers (regardless of their race) who kill white victims.
Both gender and socio-economic class also
determine who receives a death sentence and who is executed. During the 1980s
and early 1990s, only about one percent of all those on death row were women27
even though women commit about 15 percent of all criminal homicides.28 A third
or more of the women under death sentence were guilty of killing men who had
victimized them with years of violent abuse.29 Since 1930, only 33 women (12 of
them black) have been executed in the United States.30
Discrimination against the poor (and in our
society, racial minorities are disproportionately poor) is also well
established.
Fairness in capital cases requires, above all,
competent counsel for the defendant. Yet “approximately 90 percent of those on
death row could not afford to hire a lawyer when they were tried.”31 Common
characteristics of death-row defendants are poverty, the lack of firm social
roots in the community, and inadequate legal representation at trial or on
appeal. As Justice William O. Douglas noted in Furman, “One searches our
chronicles in vain for the execution of any member of the affluent strata in
this society”(408 US 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.”32
Justice John Marshall Harlan, writing 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 who
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, appear to be tasks which are beyond
present human ability.” (402 U.S. 183 (1971))
Yet in the Gregg decision, the majority of the
Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the
new guided-discretion statutes could accomplish the impossible. The truth is
that death statutes approved by the Court “do not effectively restrict the
discretion of juries by any real standards, and they never will. No society is
going to kill everybody who meets certain preset verbal requirements, put on
the statute books without awareness of coverage of the infinity of special
factors the real world can produce.”33
Evidence recently obtained by the Capital Jury
Project has shown that jurors in capital trials generally do not understand the
judge’s instructions about the laws that govern the choice between imposing the
death penalty and a life sentence. Even when they do comprehend, jurors often
refuse to be guided by the law. “Juror comprehension of the law… is mediocre.
The effect… is to reduce the likelihood that capital defendants will benefit
from the safeguards against arbitrariness built into the… law.”34
Even if the jury’s sentencing decision were
strictly governed by the relevant legal criteria, there remains a vast
reservoir of unfettered discretion: the prosecutor’s decision to prosecute for
a capital or lesser crime, the court’s willingness to accept or reject a guilty
plea, the jury’s decision to convict for second-degree murder or manslaughter
rather than capital murder, the determination of the defendant’s sanity, and
the governor’s final clemency decision, among others.
Discretion in the criminal-justice system is
unavoidable. The history of capital punishment in America clearly demonstrates
the social desire to mitigate the harshness of the death penalty by narrowing
the scope of its application. Whether or not explicitly authorized by statutes,
sentencing discretion has been the main vehicle to this end. But when
sentencing discretion is used – as it too often has been – to doom the poor,
the friendless, the uneducated, racial minorities, and the despised, it becomes
injustice.
Mindful of such facts, the House of Delegates of
the American Bar Association (including 20 out of 24 former presidents of the
ABA) called for a moratorium on all executions by a vote of 280 to 119 in
February 1997. The House judged the current system to be “a haphazard maze of
unfair practices.”35
Thoughtful citizens, who might possibly support
the abstract notion of capital punishment, are obliged to condemn it in actual
practice. In its 1996 survey of the death penalty in the United States, the
International Commission of Jurists reinforced this point. Despite the efforts
made over the past two decades since Gregg to protect the administration of the
death penalty from abuses, the actual “constitutional errors committed in state
courts have gravely undermined the legitimacy of the death penalty as a
punishment for crime.”36
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Unlike all other criminal punishments, the death
penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830,
years after having witnessed the excesses of the French Revolution, the Marquis
de Lafayette said, “I shall ask for the abolition of the punishment of death
until I have the infallibility of human judgment demonstrated to me.”37
Although some proponents of capital punishment would argue that its merits are
worth the occasional execution of innocent people, most would hasten to insist
that there is little likelihood of the innocent being executed. However, a
large body of evidence from the 1980s and 1990s shows that innocent people are
often convicted of crimes – including capital crimes – and that some have been
executed.
Since 1900, in this country, there have been on
the average more than four cases each year in which an entirely innocent person
was convicted of murder. Scores of these individuals were sentenced to death.
In many cases, a reprieve or commutation arrived just hours, or even 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.38
Consider this handful of representative cases:
* In 1985, in Maryland, Kirk Bloodsworth was
sentenced to death for rape and murder, despite the testimony of alibi
witnesses. In 1986 his conviction was reversed on grounds of withheld evidence
pointing to another suspect; he was retried, re-convicted, and sentenced to
life in prison. In 1993, newly available DNA evidence proved he was not the
rapist-killer, and he was released after the prosecution dismissed the case. A
year later he was awarded $300,000 for wrongful punishment.
* In Mississippi, in 1990, Sabrina Butler was
sentenced to death for killing her baby boy. She claimed the child died after
attempts at resuscitation failed. On technical grounds her conviction was
reversed in 1992. At retrial, she was acquitted when a neighbor corroborated
Butler’s explanation of the child’s cause of death and the physician who
performed the autopsy admitted his work had not been thorough.
* In 1985, in Illinois, Rolando Cruz and
Alejandro Hernandez were convicted of abduction, rape, and murder of a young
girl and were sentenced to death. Shortly after, another man serving a life
term in prison for similar crimes confessed that he alone was guilty; but his
confession was inadmissible because he refused to repeat it in court unless the
state waived the death penalty. Awarded a new trial in 1988, Cruz was again
convicted and sentenced to death; Hernandez was also re-convicted, and
sentenced to 80 years in prison. In 1992 the assistant attorney general
assigned to prosecute the case on appeal resigned after becoming convinced of
the defendants’ innocence. The convictions were again overturned on appeal
after DNA tests exonerated Cruz and implicated the prisoner who had earlier
confessed. In 1995 the court ordered a directed verdict of acquittal, and
sharply criticized the police for their unprofessional handling of the case.
Hernandez was released on bail and the prosecution dropped all charges.
* In Alabama, Walter McMillian was convicted of
murdering a white woman in 1988. Despite the jury’s recommendation of a life
sentence, the judge sentenced him to death. The sole evidence leading the
police to arrest McMillian was testimony of an ex-convict seeking favor with
the prosecution. A dozen alibi witnesses (all African Americans, like
McMillian) testified on McMillian’s behalf, to no avail. On appeal, after
tireless efforts by his attorney Bryan Stevenson, McMillian’s conviction was
reversed by the Alabama Court of Appeals. Stevenson uncovered prosecutorial
suppression of exculpatory evidence and perjury by prosecution witnesses, and
the new district attorney joined the defense in seeking dismissal of the
charges.
* Another 1980s Texas case tells an even more
sordid story. In 1980 a black high school janitor, Clarence Brandley, and his
white co-worker found the body of a missing 16-year-old white schoolgirl.
Interrogated by the police, they were told, “One of you two is going to hang
for this.” Looking at Brandley, the officer said, “Since you’re the nigger,
you’re elected.” In a classic case of rush to judgment, Brandley was tried,
convicted, and sentenced to death. The circumstantial evidence against him was
thin, other leads were ignored by the police, and the courtroom atmosphere
reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to
freeing wrongly convicted prisoners – came to Brandley’s aid. Evidence had
meanwhile emerged that another man had committed the murder for which Brandley
was awaiting execution. Brandley was not released until 1990.39
Each of these cases has a reassuring ending: The
innocent prisoner is saved from execution and released. But other cases are
more troubling.
* In 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 efforts to delay or nullify his execution failed.40 Coleman’s case was
marked with many of the circumstances found in other cases where the defendant
was eventually cleared. Were Coleman still incarcerated, his friends and
attorneys would have a strong incentive to resolve these questions. But because
Coleman is dead, further inquiry into the crime for which he was convicted is
extremely unlikely.
* In 1990, Jesse Tafero was executed in Florida.
He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering
a state trooper. In 1981 Jacobs’ death sentence was reduced on appeal to life
imprisonment, and 11 years later her conviction was vacated by a federal court.
The evidence on which Tafero and Jacobs had been convicted and sentenced was
identical; it consisted mainly of the perjured testimony of an ex-convict who
turned state’s witness in order to avoid a death sentence. Had Tafero been
alive in 1992, he no doubt would have been released along with Jacobs.41
Tafero’s death is probably the clearest case in recent years of the execution
of an innocent person.
Several factors help explain why the judicial
system cannot guarantee that justice will never miscarry: overzealous prosecution,
mistaken or perjured testimony, faulty police work, coerced confessions, the
defendant’s previous criminal record, inept defense counsel, seemingly
conclusive circumstantial evidence, and community pressure for a conviction,
among others. And when the system does go wrong, it is volunteers outside the
criminal justice system – journalists, for example – who rectify the errors,
not the police or prosecutors. To retain the death penalty in the face of the
demonstrable failures of the system is unacceptable, especially since there are
no strong overriding reasons to favor the death penalty.
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Prisoners are executed in the United States by
any one of five methods; in a few jurisdictions the prisoner is allowed to
choose which one he or she prefers. These are the methods of capital punishment
in use in mid-1997.
The traditional mode of execution, hanging, is
an option still available in Delaware, New Hampshire and Washington. Death on
the gallows is easily bungled: If the drop is too short, there will be a slow
and agonizing death by strangulation. If the drop is too long, the head will be
torn off.
Two states, Idaho and Utah, still authorize the
firing squad. The prisoner is strapped into a chair and hooded. A target is
pinned to the chest. Five marksmen, one with blanks, take aim and fire.
Throughout the twentieth century, electrocution
has been the most widely used form of execution in this country, and is still
utilized in eleven states. The condemned prisoner 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 from 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 tied 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 re-fastened.
…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] reported 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 line 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.”42 Afterwards, officials were embarrassed by what one observer called
the “barbaric ritual.” The prison spokesman remarked, “This was supposed to be
a very clean manner of administering death.”43
The introduction of the gas chamber was an
attempt to improve on electrocution. In this method of execution the prisoner
is strapped into a chair with a container of sulfuric acid underneath. The
chamber is sealed, and cyanide is dropped into the acid to form a 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 took several
more quick gulps of the fumes.
“At this point Don’s body started convulsing
violently.... His face and body turned 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 face leaned partially forward, but he was still conscious. Every
few seconds he continued to gulp in. He was shuddering uncontrollably and his
body was racked with spasms. His head continued to snap back. His hands were
clenched.
“After several more minutes, the most violent of
the convulsions subsided. At this time the muscles along Don’s left arm and
back began twitching in a wavelike motion under his skin. Spittle 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)
Execution by suffocation in the lethal gas
chamber may soon be abolished. In 1996 a panel of judges on the 9th Circuit
Court of Appeals in California (where the gas chamber has been used since 1933)
ruled that this method is a “cruel and unusual punishment.”44
The latest mode of inflicting the death penalty,
enacted into law by more than 30 states, is lethal injection, first used in
1982 in Texas. It is easy to overstate the humaneness and efficacy of this
method; one cannot know whether lethal injection is really painless. As the
U.S. Court of Appeals observed, there is “substantial and uncontroverted
evidence… that execution by lethal injection poses a serious 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 execution by lethal injection always
proceed 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.”45 In 1988, during the execution of Raymond Landry, “a
tube attached to a needle inside the inmate’s right arm began leaking, sending
the lethal mixture shooting across the death chamber toward witnesses.”46
Its veneer of decency and subtle analogy with
life-saving medical practice no doubt makes killing by lethal injection more
acceptable to the public.
Journalist Susan Blaustein, reacting to having
witnessed an execution in Texas, comments:
“The lethal injection method … has turned dying
into a still life, thereby enabling the state to kill without anyone involved
feeling anything…. Any remaining glimmers of doubt – about whether the man
received due process, about his guilt, about our right to take life – cause us
to rationalize these deaths with such catchwords as “heinous,” “deserved,”
“deterrent,” “justice,” and “painless.” We have perfected the art of
institutional killing to the degree that it has deadened our natural,
quintessentially human response to death.”47
Most people observing an execution are horrified
and disgusted. “I was ashamed,” writes sociologist Richard 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.”48
Revulsion at the duty to supervise and witness
executions is one reason why so many prison wardens – however unsentimental
they are about crime and criminals – are opponents of capital punishment. Don
Cabana, who supervised several executions in Missouri and Mississippi reflects
on his mood just prior to witnessing an execution in the gas chamber:
“If [the condemned prisoner] was some awful
monster deemed worthy of extermination, why did I feel so bad about it, I
wondered. It has been said that men on death row are inhuman, cold-blooded
killers. But as I stood and watched a grieving mother leave her son for the last
time, I questioned how the sordid business of executions was supposed to be the
great equalizer…. The ‘last mile’ seemed an eternity, every step a painful
reminder of what waited at the end of the walk. Where was the cold-blooded
murderer, I wondered, as we approached the door to the last-night cell. I had
looked for that man before… and I still had not found him – I saw, in my grasp,
only a frightened child. [Minutes after the execution and before] heading for
the conference room and a waiting press corps, I… shook my head. ‘No more. I
don’t want to do this anymore.’”49
For some individuals, however, executions seem
to appeal to strange, aberrant impulses and provide an outlet for sadistic
urges. Warden Lewis Lawes of Sing Sing Prison in New York wrote of the many
requests he received to watch electrocutions, and told that when the job of
executioner became vacant. “I received more than seven hundred applications for
the position, many of them offering cut-rate prices.”50
Public executions were common in this country
during the 19th and early 20th centuries. One of the last ones occurred in 1936
in Kentucky, when 20,000 people gathered to watch the hanging of a young
African American male.51
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 such 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 Beccaria, in his highly influential treatise On Crimes and Punishment
(1764), asserted: “The death penalty cannot be useful, because of the example
of barbarity it gives men.” Beccaria’s words still ring true – 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 dignity of the
human personality.”52
Justice, it is often insisted, requires the
death penalty as the only suitable retribution for heinous crimes. This claim
does not bear scrutiny, however. By its nature, all punishment is retributive.
Therefore, whatever legitimacy is to be found in punishment as just retribution
can, in principle, be satisfied without recourse to executions.
Moreover, the death penalty could be defended on
narrowly retributive grounds only for the crime 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, drug trafficking). Few
defenders of the death penalty are willing to confine themselves consistently
to the narrow scope afforded by retribution. In any case, execution is more
than a punishment exacted in retribution for the taking of a life. As Nobel
Laureate Albert Camus wrote, “For there to be equivalence, the death penalty
would have to punish a criminal who had warned 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. Such a monster is not encountered in
private life.”53
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 just
desserts – “making the punishment fit the crime.” If this rule means
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 punishments on offenders.
It would require us to betray traitors and kill multiple murderers again and
again – punishments that are, of course, 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 murder.
If, however, the principle of just deserts means
the severity of punishments must be proportional to the gravity of the crime –
and since murder is the gravest crime, it deserves the severest punishment –
then the principle is no doubt sound. Nevertheless, this premise does not
compel support for the death penalty; what it does require is that other crimes
be punished with terms of imprisonment or other deprivations less severe than
those used in the punishment of murder.
Criminals no doubt deserve to be punished, and
the severity of the punishment should be appropriate to their culpability and
the harm they have caused the innocent. But severity of punishment has its
limits – imposed by both justice and our common human dignity. Governments that
respect these limits do not use premeditated, violent homicide as an instrument
of social policy.
Some people who have lost a loved one to murder
believe that they cannot rest until the murderer is executed. But this
sentiment is by no means universal. Coretta Scott King has observed, “As one
whose husband and mother-in-law have died the victims of murder and
assassination, I stand firmly and unequivocally opposed to the death penalty
for those convicted of capital offenses. An evil deed is not redeemed by an
evil deed of retaliation. Justice is never advanced in the taking of a human
life. Morality is never upheld by a legalized murder.”54
Kerry Kennedy Cuomo, daughter of the slain
Senator Robert Kennedy, has written:
“I was eight years old when my father was
murdered. It is almost impossible to describe the pain of losing a parent 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 another.
And I knew, far too vividly, the anguish that would spread through another
family – another set of parents, children, brothers, and sisters thrown into
grief.”55
Across the nation, many who have survived the
murder of a loved one have joined Murder Victims’ Families for Reconciliation
(headquartered in Virginia), in the effort to replace anger and hate toward the
criminal with a restorative approach to both the offender and the bereaved
survivors.
It is sometimes suggested that abolishing
capital punishment is unfair to the taxpayer, on the assumption that life
imprisonment is more expensive than execution. If one takes into account all
the relevant costs, however, just the reverse is true. “The death penalty is
not now, nor has it ever been, a more economical alternative to life
imprisonment.”56 A murder trial normally takes much longer when the death
penalty is at issue than when it is not. Litigation costs – including the time
of judges, prosecutors, public defenders, and court reporters, and the high
costs of briefs – are mostly 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.57
In Maryland, a comparison of capital trial costs
with and without the death penalty for the years 1979-1984 concluded that a
death penalty case costs “approximately 42 percent more than a case resulting
in a non-death sentence.”58 In 1988 and 1989 the 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.”59 Florida, with one
of the nation’s most populous death rows, has estimated that the true cost of
each execution is approximately $3.2 million, or approximately six times the
cost of a life-imprisonment sentence.”60
A 1993 study of the costs of North Carolina’s
capital punishment system revealed that litigating a murder case from start to
finish adds an extra $163,000 to what it would cost the state to keep the
convicted offender in prison for 20 years. The extra cost goes up to $216,000
per case when all first-degree murder trials and their appeals are considered,
many of which do not end with a death sentence and an execution.61
From one end of the country to the other public
officials decry the additional cost of capital cases even when they support the
death penalty system. “Wherever the death penalty is in place, it siphons off
resources which could be going to the front line in the war against crime….
Politicians could address this crisis, but, for the most part they either
endorse executions or remain silent.”62 The only way to make the death penalty
more “cost effective” than imprisonment is to weaken due process and curtail
appellate review, which are the defendant’s (and society’s) only protection
against the most aberrant miscarriages of justice. Any savings in dollars
would, of course, be at the cost of justice: In nearly half of the
death-penalty cases given review under federal habeas corpus provisions, the
murder conviction or death sentence was overturned.63
In 1996, in response to public clamor for
accelerating executions, Congress imposed severe restrictions on access to
federal habeas corpus64 and also ended all funding of the regional death
penalty “resource centers” charged with providing counsel on appeal in the
federal courts.65 These restrictions virtually guarantee that the number and
variety of wrongful murder convictions and death sentences will increase. The
savings in time and money will prove to be illusory.
It is commonly reported that the American public
overwhelmingly approves of the death penalty. More careful analysis of public
attitudes, however, reveals that most Americans prefer an alternative; they
would oppose the death penalty if convicted murderers were sentenced to life
without parole and were required to make some form of financial restitution. A
1993 nationwide survey revealed that although 77% of the public approves of the
death penalty, support drops to 56% if the alternative is punishment with no
parole eligibility until 25 years in prison. Support drops even further, to
49%, if the alternative is no parole under any conditions. And if the
alternative is no parole plus restitution, it drops still further, to 41%.66
Only a minority of the American public would favor the death penalty if offered
such alternatives.
An international perspective on the death
penalty helps us understand the peculiarity of its use in the United States. As
long ago as 1962, it was reported to the Council of Europe that “the facts
clearly show that the death penalty is regarded in Europe as something of an
anachronism….”67
Today, either by law or in practice, all of
Western Europe has abolished the death penalty. In Great Britain, it was
abolished (except for cases of treason) in 1971; France abolished it in 1981.
Canada abolished it in 1976. The United Nations General Assembly affirmed in a
formal resolution that throughout the world, it is desirable to “progressively
restrict the number of offenses for which the death penalty might be imposed,
with a view to the desirability of abolishing this punishment.”68 By mid-1995,
eighteen countries had ratified the Sixth Protocol to the European Convention
on Human Rights, outlawing the death penalty in peacetime.69
Underscoring worldwide support for abolition was
the action of the South African constitutional court in 1995, barring the death
penalty as an “inhumane” punishment. Between 1989 and 1995, two dozen other
countries abolished the death penalty for all crimes. More than half of all
nations have abolished it either by law or in practice.70
Once in use everywhere and for a wide variety of
crimes, the death penalty today is generally forbidden by law and widely
abandoned in practice, in most countries outside the United States. Indeed, the
unmistakable worldwide trend is toward the complete abolition of capital
punishment. In the United States, opposition to the death penalty is widespread
and diverse. Catholic, Jewish, and Protestant religious groups are among the
more than 50 national organizations that constitute the National Coalition to
Abolish the Death Penalty.
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FOR FURTHER INFORMATION AND REFERENCE
Additional copies of this pamphlet, as well as
resource material such as newsletters, books, legal and legislative
information, death-row census, reprinted articles, bibliographies, and
referrals to other national and statewide anti-death penalty groups may be
obtained from the Capital Punishment Project, American Civil Liberties Union,
122 Maryland Avenue NE, Washington, DC, 20002. Diann Y. Rust-Tierney, Esq., is
the project’s director. This pamphlet and other ACLU publications are available
through the ACLU at 800-775-ACLU or on the Internet at http://www.aclu.org.
The Death Penalty Information Center, 1320 18th
Street, NW, Washington, DC 20036, (202-293-6970), periodically issues reports
on various aspects of capital punishment, among them: Sentencing for Life:
Americans Embrace Alternatives to the Death Penalty (April 1993); On the Front
Line: Law Enforcement Views on the Death Penalty (February 1995); With Justice
for Few: The Growing Crisis in Death Penalty Representation (October 1995) and
Twenty Years of Capital Punishment: A Reevaluation (June 1996).
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 1436 U Street, NW, Suite 104, Washington
DC 20009.
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RESOURCES
No one volume about the death penalty currently
serves as an up-to-date source book on all aspects of the subject but a number
of useful materials are available. The Death Penalty in America: Current
Controversies, Oxford University Press, 1997, ed. H. A. Bedau, is the most
recent and comprehensive single volume. In addition to books and articles cited
in the endnotes, several other volumes published during the past decade contain
valuable information and arguments, including:
Margery B. Koosed, ed., Capital Punishment, 3
vols., Garland Publishing, 1996; Randall Coyne and Lyn Entzeroth, eds., Capital
Punishment and the Judicial Process, Carolina Academic Press, 1994; Victor L.
Streib, ed., A Capital Punishment Anthology, Anderson Publishing Co., 1993;
Welsh S. White, The Death Penalty in the Nineties, University of Michigan
Press, 1991; Raymond Paternoster, Capital Punishment in America, Free Press,
1991: Samuel R. Gross and Robert Mauro, Death and Discrimination, Northeastern
University Press, 1989; Michael L. Radelet, ed., Facing the Death Penalty,
Temple University Press, 1989; Kenneth C. Haas and James A. Inciardi, eds.,
Challenging Capital Punishment, Sage Publications, 1988; Franklin E. Zimring
and Gordon Hawkins, Capital Punishment and the American Agenda, Cambridge
University Press, 1986.
Several more specialized volumes also deserve
mention: William A. Schabas, The Death Penalty As Cruel Treatment and Torture:
Capital Punishment Challenged in the World’s Courts, Northeastern University
Press, 1997; William A. Schabas, Abolition of the Death Penalty in
International Law, Cambridge University Press, 1997; Herbert H. Haines, Against
Capital Punishment: The Anti-Death Penalty Movement in America, 1972-1994,
Oxford University Press, 1996; Peter Hodgkinson and Andrew Rutherford, eds.,
Capital Punishment: Global Issues and Prospects, Waterside Press, England,
1996; Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putman, In Spite of
Innocence: Erroneous Convictions in Capital Cases, Northeastern University
Press, 1992 (rev. ed. 1994); Robert M. Bohm, ed., The Death Penalty in America:
Current Research, Anderson Publishing Co., 1991; Victor L. Streib, Death
Penalty for Juveniles, Indiana University Press, 1987; and Louis P. Masur,
Rites of Execution: Capital Punishment and the Transformation of American
Culture, 1776-1865, Oxford University Press, 1989.
Several scholarly and legal journals have
devoted whole issues to various legal, sociological, and historical aspects of
the problem of the death penalty, notably Thomas Cooley Law Review, Vol. 13,
No. 3 (1996); Buffalo Law Review, Vol. 44, No. 2 (Spring 1996); Indiana Law
Journal, Vol. 70, No. 4 (Fall 1995); American University Law Review, Vol. 45,
No. 2 (December 1995); Notre Dame Journal of Law, Ethics, & Public Policy,
Vol. 8, No. 1 (1994); American Journal of Criminal Law, Vol. 22, No. 1 (Fall
1994); Journal of Social Issues, Vol. 50, No. 2 (Summer 1994); Law &
Society Review, Vol. 27, No. 1 (1993);Florida State University Law Review, Vol.
20, No. 1 (Summer 1992); Dickinson Law Review, Vol. 95, No. 4 (Summer 1991);New
York University Review of Law & Social Change, Vol. 18, Nos. 2 and 3,
(1990-1991); Albany Law Review, Vol. 54, Nos. 3 and 4 (1990);Loyola of Los
Angeles Law Review, Vol. 23, No. 1 (November 1989);Journal of Contemporary
Criminal Justice, Vol. 5, No. 4 (December 1989).
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 1950’s. The NAACP Legal 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.
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NOTES
1. Dieter, Death Penalty Information Center, On
the Front Line (1995), p. 2.
2. See U.S. Dept. of Justice, “Capital
Punishment,” annually, 1990 et seq.
3. See Uniform Crime Reports, annually, 1990 et
seq.
4. See Uniform Crime Reports, 1993, and note 2
et seq.
5. See Uniform Crime Reports, annually, 1990 et
seq.
6. Cochran, Chamlin and Seth. “Deterrence, or
Brutalization?” in Criminology (1994).
7. U.S. Bureau of Justice Statistics, “Capital
Punishment 1994,” p. 14; “Death Row U.S.A.”, Summer 1996, pp. 7-8.
8. Bailey and Peterson, Criminology (1987), p.
22. See also their general discussion of death penalty deterrence in Bedau, ed.
The Death Penalty in America: Current Controversies (1997).
9. Sourcebook of Criminal Justice Statistics,
1994, p. 587, and Sourcebook 1995, p. 603.
10. Wolfson, in Bedau, ed., The Death Penalty in
America, 3rd ed. (1982),p. 167.
11. Ehrlich, in American Economic Review (1974);
Phillips, in American Journal of Sociology (1980); and Layson, in Southern
Economic Journal (1985).
12. Lempert, in Crime & Delinquency (1983);
Peterson and Bailey, in Chambliss, ed., Criminal Law in Action, 2nd ed. (1984);
Bowers, in Hasse and Inciardi, eds., Challenging Capital Punishment (1988);
Peterson and Bailey, inSocial Forces (1988), and Fox and Radelet, in Loyola of
Los Angeles Law Review (1989).
13. Blumstein, Cohen and Nagin, eds., Deterrence
and Incapacitation, (1975), p. 358.
14. West, Solomon, and Diamond, in Bedau and
Pierce, eds., Capital Punishment in the United States (1976).
15. Bedau, “Recidivism, Parole, and Deterrence,”
in Bedau, ed.,Death Penalty in America, 3rd ed.
16. Marquart and Sorensen, in Loyola of Los
Angeles Law Review (1989).
17. Bureau of Justice Statistics, “Capital
Punishment 1994.”
18. Marquart, Ekland-Olson, and Sorensen, The
Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990 (1994)
19. Bureau of Justice Statistics, “Capital
Punishment 1977”; Death Row USA,” Summer 1996.
20. Bowers, Legal Homicide (1984); Streib, Death
Penalty for Juveniles (1987); “Death Row USA,” Summer 1996.
21. “Death Row USA,”
1976 et seq. Bureau of Justice Statistics, “Capital
Punishment, 1995.”
22. Uniform Crime Reports, 1972-1995.
23. Baldus, Woodworth, and Pulaski, Equal
Justice and the Death Penalty (1990), p. 401.
24. See Edwards and Conyers, in University of Dayton
Law Review (1995).
25. U.S. General Accounting Office, Death
Penalty Sentencing (1990), pp. 5,6.
26. “Death Row, USA,” Summer 1996 and Sourcebook
of Criminal Justice Statistics – 1995.
27. U.S. Bureau of Justice Statistics, “Capital
Punishment,” 1980-1994.
28. Uniform Crime Reports, 1980-1994.
29. Memorandum, National Coalition to Abolish
the Death Penalty, January 1991.
30. U.S. Bureau of Justice Statistics, “Capital
Punishment, 1979”; “Death Row USA,” Summer 1995.
31. Tabak, in Loyola of Los Angeles Law Review
(1984).
32. Gross and Mauro, Death and Discrimination
(1989), p. 224.
33. Black, Capital Punishment: The Inevitability
of Caprice and Mistake, 2nd ed. (1982).
34. Symposium on the Capital Jury Project,
Indiana Law Journal (1995), p.1181.
35. “Bar Association Leaders Urge Moratorium on
Death Penalty,” The New York Times, Feb. 4, 1997, p. A 20.
36. International Commission of Jurists,
Administration of the Death Penalty In The United States (1996), p. 69
37. Lucas, Receuil
des Debats... (1831), pt. II, p. 32.
38. Radelet, Lofquist, and Bedau, in Thomas M.
Cooley Law Review (1977); Radelet, Bedau, and Putnam, In Spite of Innocence
(1992); Bedau and Radelet, “Miscarriages of Justice in Potentially Capital
Cases,” in Stanford Law Review (1987),
39. Davies, White Lies (1991)
40. David Kaplan, “Hung on Technicality,”
Newsweek, April 6, 1992; Jill Smolow, “Must This Man Die?”, Time, May 18, 1992,
p. 40.
41. Radelet, Lofquist, and Bedau, in Thomas M.
Cooley Law Review (1997).
42. Glass v. Louisiana, 471 U.S. 1080 (1985).
43. Boston Globe, April 24, 1983. p. 24.
44. Eric Brazi, “State Prepares for Switch to
Lethal Injection,” San Francisco Examiner, Jan. 14, 1996.
45. “Murderer Executed After a Leaky Lethal
Injection,” The New York Times, December 14, 1988, p. A29.
46. Ibid.
47. Blaustein, “Witness to Another Execution,”
Harpers Magazine, May 1994, p. 53.
48. Los Angeles Times, March 24, 1985, Pt IV, p.
5.
49. Cabana, Death at Midnight: The Confession of
an Executioner (1996), p. 177, 186, 190.
50. Lawes, Life and Death in Sing Sing (1928).
51. Teeters, in Journal of the Lancaster County
Historical Society (1960).
52. The Boston Globe, August 16, 1976, p. 17.
53. Camus, “Reflections on the Guillotine,”
inResistance, Rebellion, and Death (1960).
54. Coretta Scott King, Speech to National
Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981.
55. Kerry Kennedy, Foreword to Gray and Stanley,
A Punishment in Search of A Crime (1989).
56. Spangenberg and Walsh, in Loyola of Los
Angeles Law Review (1989), p. 47.
57. N.Y. State Defenders Assn., “Capital Losses”
(1982).
58. U.S. Govt. Accounting Office, Limited Data
Available in Costs of Death Sentences (1989), p. 50.
59. Cited in Spangenberg and Walsh, note 56.
60. David von Drehle, “Capital Punishment in
Paralysis,” Miami Herald, July 10, 1988.
61. Cook and Lawson, The Costs of Processing
Murder Cases in North Carolina (1993), pp. 97-98.
62. Dieter, Millions Misspent: What Politicians
Don’t Say About the High Costs of the Death Penalty (1992), p. 9.
63. Greenhouse, “Judicial Panel Urges Limits on
Appeals by Death Row Inmates,” The New York Times, Sept. 22, 1989.
64. See Tabak, in Seton Hall Law Review (1996);
Yackel, in Buffalo Law Review (1996); Coyle, in National Law Journal (May 20
1996); and the Panel Discussion in Loyola University Chicago Law Journal
(1996).
65. Carol Castenada, “Death Penalty Centers
Losing Support Funds,” USA Today, Oct. 24, 1995, p. 38; Coyle, in National Law
Journal (Sept. 18, 1995 and Jan. 15, 1996).
66 Dieter, Sentencing For Life: Americans
Embrace Alternatives to the Death Penalty (1993).
67. Ancel, The Death Penalty in European
Countries (1962), p. 55
68. UN, Ecosoc, Official Records 58th Sess.
(1971), Suppl. 1, p. 36.
69. Hood, The Death Penalty: A Worldwide
Perspective, rev. ed. (1996).
70. Hood, The Death Penalty (1996); Amnesty
International, press release, Oct. 1996.
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ABOUT THE AUTHOR
Hugo Adam Bedau is Austin Fletcher Professor of
Philosophy at Tufts University. He is the author of Death Is Different: Studies
in the Morality, Law, and Politics of Capital Punishment (1987), the co-author
of In Spite of Innocence: Erroneous Convictions in Capital Cases (1992, rev.
ed. 1994), the editor of The Death Penalty in America (1964, 1982, 1997), and
the co-editor of Capital Punishment in the United States (1976).
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Abolishment Myth vs. Fact
The Abolishment movements disguise of full facts
and figures......
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Abolishment Myth: It only costs $23,000 per year
to keep a prisoner in prison.
Fact: The actual costs for keeping a prisoner in
a maximum security prison, ranges from $53,000 to $75,000 per year. Source:
Time Magazine. The $23k figure is for the general prison population as a whole,
and averaging the general prison population through out the entire USA.
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Abolishment Myth: The Death penalty is a
violation of the Basic Human Rights declaration of the United Nations.
Fact: No where in the original declaration does
it state specifically that the death penalty is a violation. Article 5 states:
No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. This is very subjective and open for interpretation,
and most all countries at the time of its induction were practicing capital
punishment. source http://www.un.org/Overview/rights.html
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Abolishment Myth: The death penalty serves as no
deterrent.
Fact: 30 years of studies suggest that the death
penalty is a deterrent. (See works by Profs. D. Cloninger, S. Cameron, I.
Ehrlich, W. Bailey, D. Lester, S. Layson, K. I. Wolpin, L. Phillips, S. C. Ray,
S. Stack, etc.) Examples: a) A 1967-68 study revealed 27 states showed a
deterrent effect (Bailey, W.,1974); b) The 1960’s showed a rapid rise in all
crimes, including murder, while both prison terms and executions declined
(Passell, P. & Taylor, T., 1977; Bowers, W. & Pierce, G., 1975); c)
Murder increased 100% during the U.S.,s moratorium on executions (Carrington,
F., Neither Cruel Nor Unusual); d) A review of 14 nations that abolished the
death penalty showed that murder rates increased 7% from the 5 year
pre-abolition period to the 5 year post abolition period (Archer, et al, 1977);
e) A 37 state study showed that 24 states showed a deterrent effect, 8 states
showed a brutalization effect and 5 states showed no effect (Bailey, W.,
1979-80); and f) econometric studies indicate that each execution may deter 8
or more murders ( Cameron, S., 1994). With so few executions and so many
murders, the general deterrent effect will likely never be conclusive. Source
http://www2.jfa.net/jfa/DP.html
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Abolishment Myth: The death penalty is racist.
Fact: 82% of the murder victims in death penalty
cases are white, 13% are black, or a 6:1 ratio (NAACP Legal Defense Fund (LDF),
1996). Opponents, such as Kica Matos, NAACP LDF, Steven Hawkins, Executive
Director, National Coalition to Abolish the Death Penalty(NCADP) and Sister
Helen Prejean, longtime Chairperson of the NCADP and author of Dead Man
Walking, present this fact as evidence that the “system values white lives more
than black lives. If true, then we must wonder why whites represent 55% of
those executed, and blacks 39%, when blacks have committed 49% of all murders,
and whites 39%, from 1976-94(BJS,1995). Source http://www2.jfa.net/jfa/DP.html
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Abolishment Myth: the death penalty is
unconstitutional according to the United State’s constitution articles
Fact: “No fewer than three of the Justices with
whom I have served (Justices Brennan, Marshall, and Blackmun) have maintained
that the death penalty is unconstitutional, even though its use is explicitly
contemplated in the Constitution. The Due Process Clause of the Fifth and
Fourteenth Amendments says that no person shall be deprived of life without due
process of law; and the Grand Jury Clause of the Fifth Amendment says that no
person shall be held to answer for a capital crime without grand-jury
indictment.”
- U.S. Supreme Court Justice Antonin Scalia, A
Matter of Interpretation: Federal Courts and the Law, 1997.
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