2012-02-17 / Columnists

The New Frontiers

Death Knell
Commentary By Daniel Solomon

Capital punishment has always been a hotly contested issue in the United States, and at the time of the Constitution’s ratification, there was a fierce battle over the death penalty. Thomas Jefferson, inspired by the writings of Jeremy Bentham and Cesare Beccaria, fought in the Virginia legislature to restrict use of the practice to the crimes of murder and treason.

Dr. Benjamin Rush, attacking the concept of deterrence, argued for outright abolition in the Boston broadsheets. As the movement to end slavery gained steam in antebellum America, so did its close companion, the fight to shutter the country’s death rows. In 1846, Michigan dismantled its gallows, followed by Wisconsin in 1853 and Maine in 1887.

After World War II, the speed of abolition accelerated to a frenetic pace, with five states getting rid of capital punishment between 1957 and 1965, motivated by a sense that death sentences had been handed down in a racist, random manner and that the practice was the postscript of a nastier chapter in American history.

In 1972, drawing on those arguments, the Supreme Court struck down the death penalty statutes of every state that had one, in the case of Furman v. Georgia. With cosmetic revisions to the nation’s capital punishment regime, the Court allowed executions to resume in 1976, with its decision in Gregg v. Georgia. After Gregg, capital punishment opponents focused on abolition on the state-level. Their tenacity has paid off; 16 states and Washington, D.C. do not execute anyone. Still, unjustly, this practice continues, claiming the lives of prisoners in several high profile cases.

Anyone who has ever read “To Kill a Mockingbird” knows just how much race factors into a jury’s behavior, especially in the Deep South, with its history of slavery and Jim Crow. Indeed, two disturbing figures stand out from the pre-Furman era.

Fifty-four percent of the 3,859 people put to death between 1930 and 1967 were black; 90 percent of the 455 men executed for rape over the same period were African-American. These wildly disproportionate statistics point not to excessive criminality on the part of minorities, but rather to a lethal combination of power and prejudice.

The Supreme Court agreed with this assessment in 1972, holding in Furman that capital punishment violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Justices William Brennan and Thurgood Marshall argued that the death penalty in itself went against the Amendment, while Justices Potter Stewart, William Douglas, and Byron White believed that the application of the punishment made it unconstitutional.

Justice Stewart, in his concurrence, wrote that death sentences had been “wantonly and freakishly imposed” and that they were “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” When the states rewrote their laws and changed their sentencing procedures to limit the discretion of juries by requiring them to balance sets of mitigators and aggravators to arrive at their decisions, the Court, with Gregg, allowed executions to resume. Unfortunately, this effort to reform the system has failed. According to a study conducted by the Death Penalty Information Center in 1998, blacks in Philadelphia were 3.9 times more likely to be sentenced to death than were similarly situated white defendants.

Figures compiled by the NAACP show that, since 1976, 35 percent of executed inmates have been black while 42 percent of those currently on death row are African-Americans – blacks represent approximately 12 percent of the national population. Seeing clear evidence of racial bias, Justices John Paul Stevens and Harry Blackmun, who sided with the majority in Gregg, have reversed themselves.

As if that were not enough, the American Law Institute, citing concerns about racial disparities and the execution of innocents, abandoned its support for the death penalty in 2009, despite the fact that it had helped craft the post- Furman system through the Model Penal Code.

As the A.L.I.’s decision demonstrates, there is a gnawing question of whether a prisoner is actually guilty of the murder for which he is to die. With the emergence of DNA evidence, scores of death row inmates have been exonerated, but there are probably hundreds more who did not get so lucky – the Innocence Project estimates 2.3 to 5 percent of all prisoners in America have been wrongly convicted.

This has led many legislatures to scotch capital punishment in favor of life without parole; the most notable example is Illinois. In 1999, the Innocence Project won one man’s freedom a few weeks before he was to be dispatched via lethal injection, eventually overturning the murder convictions of 12 other inmates. The state’s erstwhile governor, Republican George Ryan, put a moratorium on executions, which lasted until early this year, when the current governor, Democrat Pat Quinn, signed a bill that ended the practice forever.

The people of Illinois came to a simple conclusion that most of the First World has already reached: a system that allows the innocent to be wrongly condemned has no place in a civilized society. So, why then, in the face of these facts, do states like Texas rival China in their use of capital punishment?

One school of thought, whose proponents are known as retributivists, asserts that an execution is a metaphysical act, a method by which we express our revulsion at the most heinous crimes.

Adam Smith presented this view in his book, “The Theory of Moral Sentiments.” “Mercy to the guilty,” Smith stated memorably, “is cruelty to the innocent.” This implicit embrace of revenge, categorically rejected by the Supreme Court, is contrary to the values of a justice system that operates by utilitarian principles, seeking the greatest good for the greatest number. We no longer attempt to punish, we try to rehabilitate.

The word ‘penitentiary’ has been etched off the prison in favor of ‘correctional center.’ On a more basic level, when we create governments, we give up our individual right to exact retribution, allowing the state to speak for the common weal. As the famed legal scholar, Cesare Beccaria, put it, “public utility is the basis of human justice.”

Another contention, which says capital punishment is a powerful deterrent to the potential murderer, is not as lightly dismissed. It, however, has significant flaws. Most slayings occur in the heat of passion or out of compulsion, not as a result of some rational, Holmesian cost-benefit analysis by the lawbreaker. Becarria avers that capital punishment is ineffective because the criminal cares more about the duration of pain rather than how intense it is; he can bear the excruciating second when the executioner’s axe lands but trembles at the prospect of a lifetime spent in bondage (or its modern equivalent, life in prison). The deterrence hypothesis also has little empirical evidence on its side, while its opponents have piled up study after study backing up their claims. The most definitive of these papers was published in 1967 by University of Pennsylvania criminologist Thorsten Sellin, who compared homicide rates in states with the death penalty to their neighbors that were without it. Adjusting for external factors, he found no deterrent effect.

In the absence of data, believers in capital punishment, especially Christian conservatives, have started to cherry-pick quotes from the Bible to make their case. Specifically, they cite the litany of offenses punishable by death, which the Israelites would “hear, and fear, and shall henceforth commit no more any such evil among you.” The Hebrews did trust the principle of deterrence, but today’s evangelicals ignore the ancients’ vigorous system of protections for the defendant. It required at least two witnesses in a murder trial, and while the burden of proof in court today is guilt beyond a reasonable doubt, the prosecution had to show guilt beyond any doubt. Additionally, if guilt were established, the witnesses responsible for the verdict had to cast the first stones; if they were found to have perjured themselves, they could be put to death as well. Consequently, capital punishment, though statutorily permitted, was quite the rarity and, as the Talmud says, “the eye for an eye” of the Old Testament was symbolic, not literal.

To close on a hopeful note, in Trop v. Dulles, in an opinion written by Earl Warren, the Court held that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” This precedent, a justification to reinstate capital punishment in 1976, when only 10 states banned the death penalty, can be also be a reason to end it. Today, if the state legislatures reflect public opinion, they show a marked shift in attitudes toward the abolitionist position, with four states getting rid of capital punishment in the past five years and serious efforts to do the same in places such as New Hampshire and Connecticut. The Gallup poll now finds the lowest level of support for the death penalty in a generation, as life without parole has become available and crime has declined. For abolitionists, there is indeed hope for the future, hope that a racist, gratuitous, and primitive practice responsible for undeserved suffering can finally be put where it belongs – six feet under.

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