Doubting the death penalty
American opposition to capital punishment is motivated by broader concerns about the US justice system.
While two-thirds of the American public still back the death penalty, judges, governors and others in high places seem to be having their doubts.
There are many good arguments for abolishing capital punishment. But those members of the American elite now querying the death penalty are doing so out of a lack of faith in the workings of their criminal justice system. Many of these recent attacks on capital punishment are dangerously anti-democratic.
The campaign to abolish the death penalty in America first began in the late eighteen century, alongside the movement to end slavery. Calls for the end of the death penalty were again heard with the Progressive movement in the early twentieth century. Between 1907 and 1917, six states outlawed the death penalty and three others limited it to the crimes of treason and first-degree murder of law-enforcement officials.
But reform was short-lived. Panic about the threat of social upheaval in the wake of the Russian Revolution pressured five of the six abolitionist states into reinstating their death penalty by 1920. From then on, partly because the new science of criminology argued that the death penalty was a necessary social measure, support increased. There were more executions in the 1930s than in any other decade in American history – an average of 167 per year.
In the 1950s, public sentiment across the world began to turn away from capital punishment. Many nations either abolished or limited the death penalty, and in America the number of executions dropped dramatically. In 1966, support for capital punishment reached an all-time low of 42 percent, according to a Gallop poll.
By 1968 executions were stopped, and in 1972 the Supreme Court in Furman v Georgia found that capital punishment might be ‘cruel and unusual’ (the eighth amendment to the Constitution inveighs against cruel and unusual punishments), and effectively freed some 300 prisoners on death row (1). Thirty-five states responded by drafting new death penalty statutes, and in 1976 the Supreme Court reversed its decision, ruling that, if ‘guided discretion’ was exercised in imposing it, the death penalty did not violate the Constitution. Throughout the 1970s and 80s, the percentage of Americans in favour of the death penalty increased steadily, culminating in an 80 percent approval rating in 1994.
Since 1994, support for the death penalty has again declined slightly – today, 66 percent of Americans are in favour. But more and more politicians and judges are rejecting it – not because it is cruel and unusual, but because, they claim, the justice system is unfair.
One argument used by anti-death penalty activists today is that African Americans are over-represented on death row. The American Civil Liberties Union (ACLU) points out that almost all death sentences in the USA – 81 percent – involve white victims. Since 1973, 174 black people have been executed for killing a white person, but only 12 white people have been executed for killing a black person. Moreover, 35 percent of death row inmates are black, although African Americans constitute only 12 percent of the US population.
Such complaints have been long heard from anti-death penalty campaigners, but now they are being echoed in high places. In May 2002, the governor of Maryland issued a moratorium on the death penalty until after the completion of a report into racial bias in executions. Rob Warden, director of the Center on Wrongful Convictions at Chicago’s Northwestern University, recently told the New York Times: ‘Beyond the question of guilt or innocence, of course, is the question of proportionality and fairness of the sentencing process.’ (2)
Those who oppose the death penalty also question the safety of criminal convictions. Investigative work by a group of Chicago University journalism students looking at Illinois prisoners on death row revealed that 13 of the convictions were unsafe. In 1999, Governor George Ryan decided to call a halt to any further executions – a moratorium that will remain in place until he leaves office in January 2003. Ryan stated at the time: ‘There is no margin for error when it comes to putting a person to death.’
Ryan’s move sparked a much wider review of the operation of the death penalty around the country. A much-promoted study by James S Liebman of Columbia Law School alleged that nearly two-thirds of all death sentences are overturned because of ‘serious, reversible error’. Liebman concluded that the death penalty system is ‘collapsing under the weight of its own mistakes’ (3). Earlier in 2002, two federal judges declared the federal death penalty unconstitutional, citing evidence that innocent people had been put to death.
However, these objections are based on a selective reading of the facts. Black Americans do make up a disproportionate number of death row inmates, but this racial disparity is true of the entire criminal justice system, both state and federal.
Through the long process whereby a defendant is sentenced to death (according to the Liebman report, the time between initial conviction and execution currently averages 10.6 years), there is evidence that the authorities deal with cases fairly. As a report by the United States Department of Justice published in 2000 (4) noted, potential capital cases involving black or Hispanic defendants were less likely to result in capital charges and submission of the case to the review procedure (5).
Federal prosecutors decided to lay capital charges (with the possible sentence of death) for 81 percent of white defendants; the corresponding figures for black and Hispanic defendants were 79 percent and 56 percent respectively. Out of those cases, the attorney general decided to seek the death penalty for 27 percent of the white defendants (44 out of 166), 17 percent of the black defendants (71 out of 408), and nine percent of the Hispanic defendants (32 out of 350).
A disproportionate number of African Americans are sentenced to death because a disproportionate number of that group reach the courts in the first place.
Nor is there any evidence that any innocent man or woman has been executed since capital punishment was reinstated in 1976, as the Liebman report was forced to admit. That so many death row inmates have been freed is a testament to the meticulous and thorough process leading to capital punishment. There are, in federal capital trials, eight stages, any of which might prevent the death penalty. In every state, the governor has the power to delay an execution and, in some cases, may act unilaterally to exonerate the death row inmate. The lengthy period between conviction and prosecution, decried in the Liebman report, indicates the fairness of the system and how seriously the act of ending a human life by execution is taken.
There are many reasonable objections to the death penalty. Citizens may well be suspicious of state authorities being given a licence to kill – however judiciously this licence is exercised. Others may be opposed to what they see as the ‘cruel and unusual’ or even barbaric nature of capital punishment.
Objections to capital punishment have resulted in some changes that may well strengthen the justice system. It is difficult to disagree with a ruling made by the Supreme Court recently, striking down an Arizona law allowing judges in capital cases to take into account ‘aggravating’ factors, such as the heinousness of the crime, not considered by a jury. Equally, the Supreme Court’s decision not to allow states to execute for crimes committed by juveniles is to the good.
However, most objections heard recently amount to an attack on the system of justice itself – and, ultimately, on American democracy. Actions like those of Governor Ryan suggest that the system, whereby a jury of the accused’s peers listens to evidence from both defence lawyers and public prosecutors and decides whether or not they are guilty as charged, is somehow not good enough. There is an implication that the people of Illinois or other states should not be trusted to decide what punishments fit specific crimes. Ryan, it should be noted, was elected as a pro-death penalty candidate.
If the present system of justice in the US is inadequate, what should replace it? Perhaps a committee of ‘enlightened’ judges and higher-ups should decide upon cases in the absence of a jury? Perhaps defence lawyers should be appointed in all capital cases (as some have called for)? Those concerned about travesties of justice would have far more to fear from the removal of a right to trial before a jury of one’s peers, represented by a defending attorney of one’s choice.
There is certainly an argument to be had about the death penalty’s effectiveness as a deterrent, about its fairness as a punishment, and about possible alternatives to it. Certainly, the claims by some pro-death penalty campaigners – such as the idea that a moratorium on the death penalty kills thousands of innocent Americans – are unconvincing.
But this is an argument to be had in public, rather than within committee rooms and judges’ chambers. The moral qualms of individual members of the judicial and political elite must not be held above democratic decision. The arguments have to be addressed by the American people, who must ultimately decide the fate of the death penalty.
(1) Furman v Georgia, 408 US 238
(2) Quoted in Illinois puts death penalty on trial, BBC News, 15 October 2002
(3) A Broken System: Error Rates in Capital Cases, 1973-1995, James S Liebman, Jeffrey Fagan, and Valerie West, 2000
(4) The Federal Death Penalty System: A Statistical Survey (1988-2000), United States Department of Justice, Washington, DC, 12 September 2000
(5) Under the federal death penalty ‘protocol’, adopted in 1995, US attorneys must submit for review all cases in which a defendant is charged with a capital-eligible offence, whether or not the attorney decides to seek the death penalty in individual cases. A committee of senior department attorneys, known as the attorney general’s review committee, makes independent recommendations to the attorney general
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