As Tara writes at Aetiology, it's interesting that the Rwandan government, which might be excused for letting for a little blood lust taint its criminal justice system, what with the slaughter of 800,000 people on their minds, has voted instead to abolish the death penalty. Yet here in America, capital punishment remains on the books in 38 states. I have little new to add, offer these thoughts, which I wrote more than a year ago in an attempt to give the subject a local take, back in pre-ScienceBlog days. My thesis was an is that a scientific approach to justice is incompatible with state-sanctioned murder.
THE DEATH OF DECENCY
Sept. 14, 2005
A Henderson County jury handed down a death sentence last week, the first in these parts of North Carolina since 1982 -- and that earlier decision was later commuted to life in prison. Compared with what goes on in Texas, I suppose those of us troubled by even the possibility of one state-sanctioned execution should be thankful.
I am, of course, anything but. Making matters worse, not a word about the constitutionality of capital punishment has escaped the lips of anyone associated with this week's confirmation hearings for U.S. Supreme Court chief justice nominee John Roberts.
It's not that I expected the subject to dominate the hearings. The Supreme Court looked at the arguments for and against it twice not so long ago -- abolishing it in 1972 and then reversing itself four years later. Calls for abolition aren't exactly ringing from the rooftops. But there is the matter of the recent moratorium on executions in Illinois, following a journalism student group's exposure of 13 wrongful convictions among the state's death row population. Can one be excused for holding out hope for at least a passing mention?
The traditional argument against the death penalty is that it violates the Constitution's ban on "cruel and unusual" punishment. Only a few states bought that argument, not the Supreme Court, and there probably isn't much point in making the same case today in those 38 states that have reinstated executions.
Instead, I would suggest a more scientific and skeptical approach, one that appeals not to legal arguments, but to the logic and common sense of state legislators who have it their power to get rid of what is one of the world's very worst ideas.
With all due respect to those who have fought for so long and hard against the death penalty, the problem with killing people is not that it is cruel or unusual. It is, for one thing, hard to argue that life in an American maximum-security penal institution is less cruel than a quick and painless death. (There is evidence that lethal injection, the most common form of the executions in America, is neither quick nor painless, but that is a technological problem that can easily be addressed.)
For another, while state-sanctioned murder is unusual compared with almost all liberal democracies, there are plenty of other places that continue to get rid of unwante criminals that way, including the world's most populous nation.
No, the problem arises from a combination of the irrevocable nature of the punishment and the inevitability of error in judgment. What happened in Illinois is but the tip of the iceberg. An embarrassing richness of incompetence among Texan capital-crime defense attorneys is another example. (It's hard to believe that a lawyer sleeping through his client's trial isn't cause for revisiting a case, but that's Texas for you.) As a result, there is a virtual certainty that any jurisdiction that executes people will, sooner or later, execute innocent people.
Even the relentless march of forensics science will do little to reduce uncertainty. Yes, DNA tests make it easier to exonerate and identify suspects. But at the same time, prosecutors are worried about the CSI effect, in which criminals are getting wise to the techniques being used against them, planting false evidence and obscuring their own trails.
Again, human weakness is the real challenge. Right here we have the case of State of North Carolina v. James Alan Gell, in which it took nine years for the truth of what the Charlotte News and Observer called a "disgraceful prosecution" to come out. A second trial got Gell off death row and back into the free world last year.
There are those who are not bothered by this statistical likelihood. But they are people who want resolutions to all outstanding issues. They will not accept emotionally unsatisfying compromises for the sake of society at large. For them, death is a straightforward response to a straightforward crime. Right and wrong are set in stone; so should justice be.
But for the rest of us, those who recognize that the world is a complicated place, full of unavoidable errors and unanswered questions, in perpetual need of improvement, the death penalty should be an affront to everything that civilization stands for.
The Henderson County jury that sentenced one Billy Raines to death for killing two of his friends likely believed there wasn't even a shadow of doubt that he is guilty of the crimes. But I wish those 12 jurors could have set aside their need for revenge, and looked at the bigger picture, the one dominated by shades of gray, rather than mere black and white.
It would also be nice if North Carolina came to the same conclusions, if and when it ever gets around to studying the practice as state legislators keep threatening to do.
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Besides the immorality of the death penalty, and the absurdity of telling people that they can't do what the state says is perfectly okay to do, there's the problem of wrongly convicted people. In Canada (and there have been recent cases in the USA) there have been several "murderers" who have been found to be innocent of the crime for which they were imprisoned. It's terrible that they lost one or more decades of their freedom, but at least if they are alive they can be financially compensated, which helps to some degree and demonstrates the state's (our) apology for their wrongful imprisonment. If they're dead you just can't do that at all.
I also think the government should be quicker to hand out some cash to those who are wrongly convicted, especially when imprisoned for many years. Some of the Canadians who've been through this had to fight for a long time in court and public forums to get compensation. Why not just figure that if we've locked someone up falsely for years, we give them a certain amount right off -- say a million bucks per year. It's little enough.
Scientific inquiry would not only look at the risk to executing innocents but also the risk to innocents if we do not executed murderers.
Because innocents are at risk of executions, some wrongly presume that innocents are better protected implementing a life without parole sentence, instead.
What many forget to do is weigh the risk to innocents within a life sentence. When doing that, we find that innocents are more at risk with a life sentence.
First, we all know that living murderers, in prison, after escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
Secondly, no knowledgeable party questions that the death penalty has the most extensive due process protections in US criminal law. Therefore, it is logically conclusive, that actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
Thirdly, 10 recent studies find for death penalty deterrence. Some believe that all studies with contrary findings negate those 10 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they cannot measure those deterred, if they are.
Ask yourself: "What prospect of a negative outcome doesn't deter some?" There isn't one, although committed anti death penalty folk may say the death penalty is the only one. However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. I find the evidence compelling that death is feared more than life - even in prison.
In choosing to end the death penalty, or in choosing not implement it, some have chosen to put more innocents at risk.
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Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have been released upon post conviction review.
Blackstone said "better that ten guilty persons escape than that one innocent suffer". Dudley, I guess your view is "so what if we do in some innocent people". That's immoral. It's disgusting.
You are also assuming that every case of someone convicted of murder gets extensive post-copnviction investigation which would result in their being found not guilty. That's simply silly. It's rare to get any investigation after a conviction, and for that matter, all too often the investigation gets channeled away from other likely suspects once the cops and prosecutor decide they've got the right guy (and of course we know they are not always right).
"Thirdly, 10 recent studies find for death penalty deterrence. Some believe that all studies with contrary findings negate those 10 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they cannot measure those deterred, if they are."
I do so love the sight of bloodthirsty advocates for state-sanctioned killing of civilians pulling "studies" out of their ass without sourcing any of them.
So you think, "Dudley", that killing innocent and wrongly convicted people if justifiable in any way? And you are furthermore willing to actively perpetuate a policy that does such a thing? By your own criterion, you deserve the death penalty.
Dudley, how would you feel if you were that innocent person. Would have the same supreme confidence on the judicial process then?
"First, we all know that living murderers, in prison, after escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers."
"Living murderers" are more likely to do almost anything you might suggest than dead ones. So this is a logical fallacy, unless Dudley has assiduously followed the subsequent careers of dead murderers to offer some verification that they have done SOME things (decomposing?) besides murder someone else.
The phrase "state-sanctioned murder" is a deliberate misnomer. Murder is unlawful killing - if it's state-sanctioned, it's lawful.
Alas, if only the people complaining about our use of the death penalty would complain proportionally about the War in Iraq, maybe we wouldn't be in that mess.
When drawing comparisons between Rwanda and the United States regarding the death penalty, it is important to consider the political aspects. Many Rwandans were not in favor of abolishing the death penalty. Rather, it was a political maneuver to draw in more high profile genocide criminals, living abroad. Many countries, especially in Europe, will not extradite the perpetrators of the genocide due to the fact that they would have previously gotten the death penalty. I'm not arguing that the death penalty is not irrational, just that the comparison lacks the depth it deserves. Certainly there are many great reasons the death penalty is a flawed, perhaps immoral, punishment.