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 believe that the state should
not give 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. The
death penalty is uncivilized in theory and unfair and inequitable in
practice. Through litigation, legislation, and advocacy against this
barbarous and brutalizing institution, we strive to prevent executions
and seek the abolition of capital punishment.
The ACLU’s opposition to capital punishment incorporates the following fundamental concerns:
The death penalty is a waste of taxpayers money and has no public
safety benefit. The vast majority of law enforcement professionals
surveyed agree that capital punishment does not deter violent
crime; a survey of police chiefs nationwide found they rank the
death penalty lowest among ways to reduce violent crime. They
ranked increasing the number of police officers, reducing drug
abuse, and creating a better economy with more jobs higher than the
death penalty as the best ways to reduce violence. The FBI has
found the states with the death penalty have the highest murder
rates.
The death penalty is not a viable form of crime control.
When police chiefs were asked to rank the factors that, in their
judgment, 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. 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.
http://www.aclu.org/capital-punishment/case-against-death-penalty
Updated 2011
nnocent people are too often sentenced to death. Since 1973, over
138 people have been released from death rows in 26 states because
of innocence. Nationally, at least one person is exonerated for every 10
that are executed.
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
increased to about 300 per year, this is still only about
one percent of all homicides known to the police. Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death.
Between 2001-2009, the average number of death sentences per year dropped to 137, reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”.
Mandatory death 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. This is not a realistic prospect: our legal
system will never reverse itself to deny defendants the right to
counsel, or the right to an appeal.
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 has been 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.
Persons who commit murder and other crimes of personal violence often do not premeditate their crimes.
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. Many capital crimes are committed by the badly
emotionally-damaged or mentally ill. In such cases, violence is
inflicted by persons unable to appreciate the consequences to themselves
as well as to others.
Even 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. Furthermore,
the death penalty is a futile threat for political terrorists, like
Timothy McVeigh, 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.
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
increased to about 300 per year, this is still only about
one percent of all homicides known to the police. Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death.
Between 2001-2009, the average number of death sentences per year dropped to 137, reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”.
Mandatory death 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. This is not a realistic prospect: our legal
system will never reverse itself to deny defendants the right to
counsel, or the right to an appeal.
Persons who commit murder and other crimes of personal violence often do not premeditate their crimes.
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. Many capital crimes are committed by the badly
emotionally-damaged or mentally ill. In such cases, violence is
inflicted by persons unable to appreciate the consequences to themselves
as well as to others.
Even 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. Furthermore,
the death penalty is a futile threat for political terrorists, like
Timothy McVeigh, 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 has been 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.
If, however, severe punishment can deter crime, then permanent
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. Use of the death penalty in a given state may
actually increase the subsequent rate of criminal homicide. 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…. "
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. Between 2000-2009, the murder rate in states with capital punishment was
35-46% higher than states without the death penalty.
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 1976 and 1989, for example, lethal
assaults against police were not significantly more or less frequent in
abolitionist states than in death-penalty states.
Capital punishment did not appear to provide officers added protection during that time frame. In fact,
the three leading states in law enforcement homicide in 1996 were also very active death penalty states:
California (highest death row population), Texas (most executions since
1976), and Florida (third highest in executions and death row
population). If anything, the death penalty incited violence rather than
curbed it.
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 of those inmates (84%) were killed in death penalty
jurisdictions. During the same period, about 2% of all inmate assaults
on prison staff were committed in abolition jurisdictions. 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." Furthermore,
multiple studies
have shown that prisoners sentenced to life without parole have
equivalent rates of prison violence as compared to other inmates.
Actual experience thus establishes beyond a reasonable doubt that the
death penalty does not deter murder. No comparable body of evidence
contradicts that conclusion.
Furthermore, there are 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. For example, in
1996,
Daniel Colwell,
who suffered from mental illness, claimed that he killed a
randomly-selected couple in a Georgia parking lot so that the state
would kill him – he was sentenced to death and ultimately took his own
life while on death row.
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. 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. (Marquart and Sorensen, in Loyola of Los Angeles Law
Review 1989)
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 12 death row prisoners had a prior homicide conviction.
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.
APITAL PUNISHMENT IS IRREVERSIBLE
Unlike any 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." 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.
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.
Disturbingly, and increasingly, a large body of evidence from the
modern era shows that innocent people are often convicted of crimes –
including capital crimes – and that some have been executed.
Consider this handful of cases of innocent people sentenced to die – some executed and some spared:
- In 2011, the state of Georgia executed Troy Davis, a Black man
who was almost certainly innocent of the murder of a white off-duty
police officer. The circumstances of his execution raised an
international outcry, for good reason. Davis was convicted based on
eyewitness testimony, since there was no murder weapon or physical
evidence presented by the prosecution. Seven of the nine eyewitnesses
recanted or contradicted their trial testimony, many of them saying they
were pressured or threatened by police at the time. Troy Davis came
close to execution three previous times, because of the difficulty of
getting any court to listen to new evidence casting doubt on his
conviction. After passage of a federal law in 1996, petitioners are
very limited in their ability to appeal death sentences, and courts
routinely refuse to hear new testimony, even evidence of innocence. When
Troy Davis finally did get a hearing on his evidence, the judge
required “proof of innocence” – an impossibly high standard which he
ruled that Mr. Davis did not meet. Despite the overwhelming call for
clemency, supposed to be the “fail-safe” of the death penalty system,
the Georgia Board of Pardons refused to commute the sentence to life and
Mr. Davis was executed. Only one day after Troy Davis was executed, two
men were freed by the special Innocence Commission of North Carolina
after a decade apiece in prison. The two men had actually pled guilty to
a crime they did not commit, because they were threatened with the
death penalty.
- In Texas in 2004, Cameron Todd Willingham was executed for the
arson-murder of his three children. Independent investigations by a
newspaper, a nonprofit organization using top experts in the field of
fire science, and an independent expert hired by the State of Texas all
found that accident, not arson was the cause of the fire. There
simply was no reliable evidence that the children were murdered. Yet
even with these reports in hand, the state of Texas executed Mr.
Willingham. Earlier this year, the Texas Forensic Science Commission was
poised to issue a report officially confirming these conclusions until
Texas Governor Rick Perry replaced the Commission’s chair and some of
its members. Cameron Todd Willingham, who claimed innocence all along,
was executed for a crime he almost certainly did not commit. As an
example of the arbitrariness of the death penalty, another man, Ernest
Willis, also convicted of arson-murder on the same sort of flimsy and
unscientific testimony, was freed from Texas death row six months after
Willingham was executed.
-
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. Years later the DNA
was matched to the real killer.
-
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 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. Tafero’s execution went horribly wrong, and his head caught on
fire during the electrocution.
-
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 that they were together at a neighborhood gathering,
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.
-
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
against him. 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 1980 in Texas 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. (Davies, White Lies 1991)
This sample of freakish and arbitrary innocence determinations also
speaks directly to the unceasing concern that there are many more
innocent people on death rows across the country – as well as who have
been executed. Several factors seen in the above sample of cases help
explain why the judicial system cannot guarantee that justice will never
miscarry: overzealous prosecution, mistaken or perjured testimony,
race, faulty police work, coerced confessions, the defendant's previous
criminal record, inept and under-resourced defense counsel, seemingly
conclusive circumstantial evidence, and community pressure for a
conviction, among others. And when the system does go wrong, it is often
volunteers from
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.
CAPITAL PUNISHMENT IS BARBAROUS
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:
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, although lethal injection is the primary
method of execution. 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."
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."
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.
Execution by suffocation in the lethal gas chamber has not been
abolished but lethal injection serves as the primary method in states
which still authorize it.
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." 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)
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 and there is evidence that it is not. 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." 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."
Although the U.S. Supreme Court has held that the current method of
lethal injection used is constitutional, several people have suffered
because of this form of execution. In Ohio, Rommel Broom was subjected
to 18 attempts at finding a vein so that he could be killed by lethal
injection. The process to try to execute him took over two hours.
Finally, the governor had to stop the execution and grant the inmate a
one week reprieve. Mr. Broom has not been executed because he is
challenging the state’s right to hold a second execution attempt. Nor
was he the only Ohio inmate so maltreated. During his 2006 execution
Joseph Clark screamed, “it don’t work” and requested to take something
by mouth so the torture would end when his executioners took thirty
minutes to find a vein. Christopher Newton’s execution took over two
hours – so long that he had to be given a bathroom break.
Further, the drugs used for lethal injections are no longer
manufactured in the United States, so many states are now engaged in
back-door deals with other states and foreign businesses to obtain drugs
to be used “off-label,” and not for their designed intent. Efforts in
the U.K. and Denmark, among other countries, have succeeded in limiting
some sources of those drugs. So far, legal challenges against this
substitution of lethal drugs have not succeeded in the U.S. courts.
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."
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.'" 1996)
Recently, Allen Ault, former executioner for the State of Georgia, wrote,
“The men and women who assist in executions are not psychopaths or
sadists. They do their best to perform the impossible and inhumane job
with which the state has charged them. Those of us who have participated
in executions often suffer something very much like posttraumatic
stress. Many turn to alcohol and drugs. For me, those nights that
weren’t sleepless were plagued by nightmares.”
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."
(Life and Death in Sing Sing 1928)
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. (Teeters, in Journal of the Lancaster County Historical
Society 1960)
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."(Boston
Globe, August 16, 1976)
CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION
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."
(Reflections on the Guillotine, in Resistance, Rebellion, and Death
1960)
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." (Speech to
National Coalition to Abolish the Death Penalty, Washington, D.C.,
September 26, 1981)
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."(Foreword to Gray and Stanley, A Punishment
in Search of A Crime 1989)
Across the nation, many who have survived the murder of a loved one
have joined Murder Victims' Families for Reconciliation or Murder
Victims Families for Human Rights, in the effort to replace anger and
hate toward the criminal with a restorative approach to both the
offender and the bereaved survivors.
Groups of murder victims family members have supported campaigns for
abolition of the death penalty in Illinois, Connecticut, Montana and
Maryland most recently.
Barbara Anderson Young, the sister of James Anderson, who was
allegedly run over by a white teenager in Mississippi in 2011, who
reportedly wanted to hurt him because he was Black, wrote a letter to
the local prosecutor on behalf of their family indicating the family’s
opposition to the death penalty, which is “deeply rooted in our
religious faith, a faith that was central in James’ life as well.” The
letter also eloquently asks that the defendant be spared execution
because the death penalty “historically has been used in Mississippi and
the South primarily against people of color for killing whites.” It
continues, “[e]xecuting James' killers will not help balance the scales.
But sparing them may help to spark a dialogue that one day will lead to
the elimination of capital punishment."
Lawrence Brewer, convicted of the notorious dragging death of James
Byrd in Texas, was executed in 2011. Members of Mr. Byrd’s family
opposed the death penalty, despite the racist and vicious nature of the
killing. Of Brewer’s remorseless – he said he had no regrets the day he
was executed – Byrd’s sister, Betty Boatner, said, “If I could say
something to him, I would let him know that I forgive him and then if he
still has no remorse, I just feel sorry for him.” Byrd’s daughter
shared that she didn’t want Brewer to die because “it’s easy . . .(a)ll
he’s going to do it go to sleep” rather than live every day with what he
did and perhaps one day recognize the humanity of his victim. James
Byrd’s son, Ross, points out "You can't fight murder with murder . .
.(l)ife in prison would have been fine. I know he can't hurt my daddy
anymore. I wish the state would take in mind that this isn't what we
want."
CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION
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.") 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. The
extra costs of separate death row housing and additional security in
court and elsewhere also add to the cost. 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. (N.Y. State Defenders Assn., "Capital Losses" 1982)
The death penalty was eventually reintroduced in New York and then
found unconstitutional and not reintroduced again, in part because of
cost.
In Maryland, a comparison of capital trial costs with and without the
death penalty for the years concluded that a death penalty case costs
"approximately 42 percent more than a case resulting in a non-death sentence."
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."
(David von Drehle, "Capital Punishment in Paralysis," Miami Herald, July
10, 1988)
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.
In 2011 in California, a broad coalition of organizations called
Taxpayers for Justice seeks to put repeal of the death penalty on the
ballot for 2012 in part because of the high cost documented by a recent
study that found the state has already spent $4 billion on capital
punishment resulting in 13 executions. The group includes over 100 law
enforcement leaders, in addition to crime-victim advocates and
exonerated individuals. Among them is former Los Angeles County District
Attorney Gil Garcetti, whose office pursued dozens of capital cases
during his 32 years as a prosecutor. He said, "My frustration is more
about the fact that the death penalty does not serve any useful purpose
and it's very expensive." Don Heller, a Republican and former
prosecutor, wrote "I am convinced that at least one innocent person may
have been executed under the current death penalty law. It was not my
intent nor do I believe that of the voters who overwhelmingly enacted
the death penalty law in 1978. We did not consider that horrific
possibility." Heller emphasized that he is not "soft on crime," but that
"life without parole protects public safety better than a death
sentence." Additionally, he said the money spent on the death penalty
could be better used elsewhere, as California cuts funding for police
officers and prosecutors. "Paradoxically, the cost of capital punishment
takes away funds that could be used to enhance public safety."
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." 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.
In 1996, in response to public clamor for accelerating executions,
Congress imposed severe restrictions on access to federal habeas corpus
and also ended all funding of the regional death penalty "resource
centers" charged with providing counsel on appeal in the federal courts.
(Carol Castenada, "Death Penalty Centers Losing Support Funds," USA
Today, Oct. 24, 1995) 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.
CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES
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. In 2010, when California voters were asked which
sentence they preferred for a first-degree murderer, 42% of registered
voters said they preferred life without parole and 41% said they
preferred the death penalty.
In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty.
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%. Only a minority of the American public would favor the death penalty if offered such alternatives.
INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC
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…."1962)
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." By mid-1995, eighteen countries had ratified the Sixth
Protocol to the European Convention on Human Rights, outlawing the
death penalty in peacetime.
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. Since 1995, 43
more abolished it.
All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain it.
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.
Adapted and updated in 2011 by the ACLU from a 1992 document of the same name by Hugo Bedeau
The High Cost of the Death Penalty
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The
death penalty is much more expensive than life without parole because
the Constitution requires a long and complex judicial process for
capital cases. This process is needed in order to ensure that innocent
men and woman are not executed for crimes they did not commit, and even
with these protections the risk of executing an innocent person can not
be completely eliminated.
If the death penalty was replaced with a sentence of Life Without the
Possibility of Parole*, which costs millions less and also ensures that
the public is protected while eliminating the risk of an irreversible
mistake, the money saved could be spent on programs that actually
improve the communities in which we live. The millions of dollars in
savings could be spent on: education, roads, police officers and public
safety programs, after-school programs, drug and alcohol treatment,
child abuse prevention programs, mental health services, and services
for crime victims and their families.
*More than 3500 men and woman have received this sentence in
California since 1978 and NOT ONE has been released, except those few
individuals who were able to prove their innocence.
California could save $1 billion over five years by replacing the death penalty with permanent imprisonment.
California taxpayers pay $90,000 more per death row prisoner each year than on prisoners in regular confinement.
California Cost Studies:
Report of the California Commission on the Fair Administration of Justice (2008)
"The additional cost of confining an inmate to death row, as compared
to the maximum security prisons where those sentenced to life without
possibility of parole ordinarily serve their sentences, is $90,000 per
year per inmate. With California's current death row population of 670,
that accounts for $63.3 million annually."
Using conservative rough projections, the Commission estimates the annual costs of the present (death penalty) system to be $137 million per year.
The cost of the present system with reforms recommended by the Commission to ensure a fair process would be $232.7 million per year.
The cost of a system in which the number of death-eligible crimes was significantly narrowed would be $130 million per year.
The cost of a system which imposes a maximum penalty of lifetime incarceration instead of the death penalty would be $11.5 million per year.
Commission on the Fair Administration of Justice (June 30, 2008)
ACLU of Northern California's Report "The Hidden Death Tax" (2008)
In "The Hidden Death Tax" the ACLU-NC reveals for the first time some
of the hidden costs of California's death penalty, based on records of
actual trial expenses and state budgets.
The report reveals that:
-
California taxpayers pay at least $117 million each year post-trial seeking execution of the people currently on death row;
-
Executing all of the people currently on death row, or waiting
for them to die there of other causes, will cost California an estimated
$4 billion more than if they had been sentenced to die in prison of disease, injury, or old age;
-
California death penalty trials have cost as much as $10.9 million.
Conclusion:
The report concludes that not enough is being done to track death
penalty expenses. The report recommends tracking more of these costs to
provide greater transparency and accountability for a system that costs
California hundreds of millions. Finally, this report demonstrate that
California's death penalty is arbitrary, unnecessary and a waste of
critical resources.
Read the report.
Los Angeles Times Study Finds California Spends $250 Million per Execution (2005)
Key Points:
-
The California death penalty system costs taxpayers more than $114 million
a year beyond the cost of simply keeping the convicts locked up for
life. (This figure does not take into account additional court costs for
post-conviction hearings in state and federal courts, estimated to
exceed several million dollars.)
-
With 11 executions spread over 27 years, on a per execution basis, California and federal taxpayers have paid more than $250 million for each execution.
-
It costs approximately $90,000 more a year to house an inmate on death row, than in the general prison population or $57.5 million annually.
-
The Attorney General devotes about 15% of his budget, or $11 million annually to death penalty cases.
-
The California Supreme Court spends $11.8 million on appointed counsel for death row inmates.
-
The Office of the State Public Defender and the Habeas Corpus Resource Center spend a total of $22.3 million on defense for indigent defendants facing death.
-
The federal court system spends approximately $12 million on defending death row inmates in federal court.
-
No figures were given for the amount spent by the offices
of County District Attorneys on the prosecution of capital cases,
however these expenses are presumed to be in the tens of millions of
dollars each year.
Source: Tempest, Rone, "Death Row Often Means a Long Life", Los Angeles Times, March 6, 2005. Read the article.
Study Finds Death Penalty More Expensive Than Sentence of Life Without Parole. (1993)
Capital Trials Are Different
Capital punishment in California, as in every other state, is more
expensive than a life imprisonment sentence without the opportunity of
parole. These costs are not the result of frivolous appeals but rather
the result of Constitutionally mandated safeguards that can be
summarized as follows:
-
Juries must be given clear guidelines on sentencing, which
result in explicit provisions for what constitutes aggravating and
mitigating circumstances.
-
Defendants must have a dual trial--one to establish guilt
or innocence and if guilty a second trial to determine whether or not
they would get the death penalty.
-
Defendants sentenced to death are granted oversight protection in an automatic appeal to the state supreme court.
Constitutional Safeguards
Since there are few defendants who will plead guilty to a capital
charge, virtually every death penalty trial becomes a jury trial with
all of the following elements:
-
a more extensive jury selection procedure
-
a four fold increase in the number of motions filed
-
a longer, dual trial process
-
more investigators and expert testimony
-
more lawyers specializing in death penalty litigation
-
automatic, mandatory appeals
Conclusions
This study concludes that the enhanced cost of trying a death
penalty case is at least $1.25 million more than trying a comparable
murder case resulting in a sentence of life in prison without parole.
These savings are entirely at the trial level and do not take into
consideration the cost to county taxpayers (as they share the burden
with other California citizens) for the mandatory state supreme court
appeals and potential federal appeals.
Source:
This study titled "Capital Punishment at What Price: An Analysis
of the Cost Issue in a Strategy to Abolish the Death Penalty" was
completed by David Erickson in 1993 in the form of a Master's Thesis for
U.C. Berkeley's Graduate School of Public Policy. The complete study
can be found in the U.C. Berkeley Graduate Library or can be obtained by
contacting Death Penalty Focus.
Read the full study.
Cost Study by the Sacramento Bee (1988)
Key Points:
-
A study done by the Sacramento Bee (March 28, 1988) suggests that California would save $90 million per year if it were to abolish the death penalty.
-
$78 million of these expenses are occurred at the trial level and would not be reduced by shortening appeals.
Source:
"CLOSING DEATH ROW WOULD SAVE STATE $90 MILLION A YEAR", Sacramento Bee,
Published on March 28, 1988, Page A1, 2589 words. Read the article.
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http://www.aclu.org/capital-punishment/case-against-death-penalty
http://www.aclu.org/capital-punishment/case-against-death-penalty
