The death penalty is suddenly trending again. On Wednesday, Nebraska lawmakers voted to repeal the state's death penalty. Last week, the jury in the Boston Marathon bombing case decided that Dzhokhar Tsarnaev should be executed. The U.S. Supreme Court is currently reviewing the constitutionality of lethal injection in the death-penalty case Glossip v. Gross. Last month, the Federal Bureau of Investigations and the Justice Department admitted that almost every examiner in the FBI microscopic hair forensic unit overstated matches in favor of the prosecution in 95% of the cases in which they testified over the past 20 years. (This included 32 defendants sentenced to death, 14 of which have been executed or died in prison.) Norman Fletcher, the former chief justice of the Georgia Supreme Court who during his tenure upheld numerous death sentences, announced last week that the death penalty is “morally indefensible,” makes no business sense, and is inconsistent and applied unfairly.
Recent polls indicate that the death penalty’s popularity is sinking with Titanic-like inevitability. A recent Pew Research Center poll shows that public support for the death penalty is at a near-historic low, with only 56% supporting it. A poll by ABC News and the Washington Post found that 52% of Americans preferred life without parole as the main punishment, and 42% preferred the death penalty, down from 80% in 1994.
Traditional reasons to support the death penalty are going the same way as conventional wisdom for denying same-sex marriage and gender equality. Some will talk about how justice demands the death penalty, and some will say that the only way to enforce the sanctity of human life is by executing those who recklessly and arrogantly take it away. Some will argue that it protects innocent lives, others that it brings closure to victims’ families. Some will offer personal tales of loss. These are all heartfelt points, but ultimately they are simply wrong in terms of doing what is best for society.
The primary purpose of the death penalty is to protect the innocent. Theoretically, if someone deliberately murders someone else, executing that person protects the rest of us by removing him from society, never again to be a threat. But, as always, there’s a big difference between theory and practice. While it’s true that the death penalty may protect us from the few individuals it does execute, it does not come without a significant financial and social price tag that may put us all at an even greater risk.
First, there's the financial cost. Every society is on a limited budget, and the recent economic recession has forced government on every level to tighten its belts like an 18th century corset. Studies show that the death penalty is more expensive than the alternative, life without parole. According to the Death Penalty Information Center, the average cost of a death penalty case is $1.26 million, compared to $740,000 for a life-without-parole case. In addition, keeping a prisoner on death row costs $90,000 more a year than keeping a prisoner in the general prison population. California alone has spent $4 billion on maintaining the death penalty since its reinstatement in 1978.
In the states that have abolished the death penalty in the last decade, politicians from both parties have cited cost as the main reason. This isn’t a matter of morality versus dollars. It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education.
Some will ask, “How can you put a price on justice?” and “What if it were your mother or son who’d been murdered?” Fair enough. But given the current cost of the death penalty, my family is much more at risk from not having enough police on the street, firefighters in their stations, and staff in hospitals. The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost. The money saved won’t solve all our financial woes, but it will solve some—and could save lives doing so.
Some will argue that this cost dilemma can be resolved by shortening trials and appeals and just getting on with the putting the condemned to death. Unfortunately, in a system that already convicts hundreds of innocent people, removing legal safeguards only ensures more mistakes. Plus, these legal safeguards are guaranteed by the Constitution. We can’t wave the flag and brag about American exceptionalism through individual rights, then turn around and want to strip away those rights in the name of expediency.
The second major problem with the death penalty is that there’s a high probability that we execute innocent people. The traditional test of a person’s philosophy about justice is a simple question: If you had 10 people sentenced to death but you knew one was innocent, would you keep them all in prison for life with the hopes that the innocent person will be discovered and released? Or would you execute all of them with the idea that the occasional innocent person is an acceptable loss for a greater good? If you answer that you’d keep them in prison, you’re against the death penalty.
Recent studies suggest that this theoretical test is more of a reality than most of us realized. A study, “Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death,” published in the Proceedings of the National Academy of Sciences, concluded that about 1 in every 25 of people sentenced to death are innocent. Since 1973, 143 death row inmates have been exonerated—fewer than half the number who actually may have been innocent, according to this calculation.
The third problem with the death penalty is that the system is biased based on race and economic standing. Minorities have Favorite Son status when it comes to being executed. According to a study by law professor David Baldus and statistician George Woodworth, a black defendant is four times more likely to receive a death sentence than a white defendant for a similar crime. Part of the reason for this may be that those most responsible for determining which cases to pursue are white. Nearly 98% of chief district attorneys in counties using the death penalty are white; about 1% are African American. This bias was also apparent in the case of disgraced Chicago police commander Jon Burge, who, along with a group of other officers known as the “midnight crew,” allegedly tortured more than 100 young black men with beatings, suffocation, electrocution, and more in order to extract confessions.
The other key factor is the race of the victim. A black defendant is often more likely to get the death sentence if the victim is white. Between 1976 and 2014, Florida executed 84 people, but none of the condemned were white people who had killed an African American. According to the American Civil Liberties Union, no white person has ever been executed in Florida for killing a black person. In Alabama, only 6% of murders are blacks killing whites, yet 60% of blacks on death row involved a white victim. In Louisiana, if the murder victim is white, the state is 97% more likely to seek the death penalty. Since 1976, 269 African Americans have been executed when the victim was white, while only 20 whites have been executed when the victim was black. This lack of fair application is why some opponents of the death penalty consider it unconstitutionally cruel and unusual punishment.
Another unfair application is the lack of adequate representation received by poor defendants. U.S. Supreme Court Justice Ruth Bader Ginsberg addressed this issue: “People who are well represented at trial do not get the death penalty.” Although poor defendants are guaranteed representation, they aren’t guaranteed the best representation. This is evident when we examine the records of some these court-appointed attorneys: Nearly 1 in 4 death row inmates were represented by court-appointed attorneys who were disciplined for professional misconduct during their careers. A report by the Texas Defender Service concluded that death row inmates have a 1 in 3 chance of being executed “without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.” The attorneys for one-fifth of the death row inmates in Washington state over the last 20 years were disbarred, suspended, or arrested. This list of incompetent representation goes on.
Glenn Ford is an example of all these faults of the death penalty system converging in a perfect storm of injustice. In March of this year, Ford was declared innocent and released after serving 30 years on Louisiana’s death row. Had he been executed at any time during those 30 years, his innocence would never have been revealed. At the time of his arrest for the murder of a white woman, Ford was black, poor, and innocent. His lead attorney was a specialist in law relating to gas and oil exploration and had never tried a case before a jury. The all-white jury who convicted him did so based on eyewitness and expert testimony. Unfortunately, the eyewitness was the girlfriend of another man accused of the crime who later admitted she lied to the court. The three “experts” were later proven to have given evidence that was either inconclusive or just plain wrong. The former prosecutor of the case, A.M. Stroud III, in a letter of apology, said, “This case is another example of the arbitrariness of the death penalty. I now realize, all too painfully, that as a young 33-year-old prosecutor, I was not capable of making a decision that could have led to the killing of another human being.”
Supporters of the death penalty may say it deters other would-be murderers, but 2009 study in the Journal of Criminal Law & Criminology states that “the consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.” Some argue that it brings closure for families of victims. In some cases it does; in others it doesn’t. That’s why there are various organizations—California Crime Victims for Alternatives to the Death Penalty, Murder Victims’ Families for Reconciliation, Murder Victims’ Families for Human Rights—made up of family members of murder victims who oppose the death penalty.
Our laws are not based on what will or will not bring closure, but on what is just. Those who claim that the death penalty is necessary to promote the sanctity of life are caught in a spiral of circular logic. Certainly, there’s no proof that the sanctity of life is less in Great Britain, France, Spain, or any of the 140 countries who banned the death penalty.
Some people deserve to die. They commit acts so brutal that they cannot ever be a part of society. But we can’t let our passion for revenge override our communities’ best interest. The death penalty is an elaborate Rube Goldberg device with a thousand moving parts, each one expensive and in serious disrepair, to achieve a dubious end. With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life.
Yes, there are many ways the death penalty system might someday be improved so that it will cost less, not risk innocent lives, and be fairly applied to all. Until that day, life without parole will bring us justice and allow us the opportunity to correct our mistakes before it’s too late.