Sept. 21, 2015 (Mimesis Law) — The fifth largest death row in the United States has been at a standstill since February. Not because of crafty legal appeals or worries over the drugs being administered in lethal injections. Instead, Pennsylvania’s Governor Tom Wolf placed a moratorium on executions, a promise he made on the campaign trail. Earlier this month, the debate over the constitutionality of that move raged in the Pennsylvania Supreme Court.
This isn’t the first time a governor has effectively shut down death row. In 2000, the governor of Illinois placed a moratorium on the death penalty, and in 2011, the state formally abolished the ultimate sanction. There seems to be momentum for considering doing away with the death penalty all together.
In his new book, Supreme Court Justice Stephen Breyer advocates for abolishing death penalty, reiterating a position he took earlier this year in the Glossip case: that we need to seriously review whether the death penalty system to has become so flawed and arbitrary that it should be found unconstitutional because it’s arbitrary and risks the execution of innocent people.
Unfortunately, the Pennsylvania kerfuffle focuses on the constitutionality of granting indefinite reprieves rather than jettisoning a flawed system in desperate need of change. That’s not surprising, and, yes, the legality of government actions matters. But in the wider universe of crime and punishment, our desperate preservation of the death penalty is a myopic, knee-jerk reaction. It seems to fill a need for an immediate and ultimate answer to atrocious crimes.
Why do we frantically cling to the death penalty and loudly resist its abolishment? We are a country absorbed in exceptionalism. Whether or not that idea is misplaced, we like to think of ourselves as the pioneers of innovation and development; the standard-bearers of the free world. When it comes to social policies and criminal justice reform, however, we sometimes operate in the dark ages when compared to our international peers (at least the countries we prefer to compare ourselves to). Exhibit A: the slow build and continuing resistance to universal health care and gay marriage.
When looking at the U.S. in the context of social change and acceptance of something different, one thing is very clear: it does not come quickly or easily. To be fair, that’s probably true in most places. So it’s not entirely surprising that we cling to the death penalty as the ultimate form of punishment even when most other Western democracies have abandoned it.
On the topic of the death penalty, the countries that retain it are the very ones we generally attempt to distinguish ourselves from: Iraq, Iran, Saudi Arabia, and China. But we cannot ignore the counter-argument—that people commit crimes so heinous and horrible that they deserve the death penalty. Whether it’s the cold-blooded murder of an innocent family or someone who bombs a federal building, then certain death for the perpetrator seems like the only punishment that fits the crime.
The eye-for-an-eye penalty spectrum has biblical (and probably prehistoric) origins, and is probably the primary purpose for keeping it. More so than deterrence, it’s the retributive aspect of it: handing down a death sentence for these crimes makes us feel better.
But the death penalty is not a straightforward process. It’s not simply trial, conviction, execution. It is an expensive, drawn out process. The appeals are costly, and most people don’t realize that it’s far cheaper to incarcerate someone for life without the opportunity for parole rather than house them on death row with decades of litigation tacked on to the bill.
Take California. From 1978-2011, the cost of incarcerating death row prisoners totaled more than $1 billion (litigation costs over and above incarceration were another $3 billion). The numbers don’t lie: the annual cost of the death penalty in California equals $137 million while lifetime incarceration is a mere $11.5 million. Even in Kansas, where costs are less than California, death row housing has an annual cost of almost $50,000, while prisoners in the general population cost half that ($24,690).
The price tag should persuade even the more stubborn pro-death penalty advocates. Earlier this year, David J. Burge, a leader in the Georgia Republican Party hit the nail on the head: “Capital punishment runs counter to core conservative principles of life, fiscal responsibility and limited government. The reality is that capital punishment is nothing more than an expensive, wasteful and risky government program.”
But before we go down the road of curtailing the appeals process in death penalty cases to make it cheaper (we actually tried that in the 90s and it’s a horrid habeas system), here’s why we need that process: since 1973, more than 150 people have been released from death row with evidence of their innocence. Inmates spend decades on death row, but a streamlined or swifter effect of justice could have very well led to the execution of innocent people.
For example, in 2014, two North Carolina men who had spent 30 years in prison were exonerated when new DNA evidence demonstrated their innocence. One of the men, Henry Lee McCollum, served his 30 years on death row, longer than anyone else in North Carolina history. McCollum and his half-brother, Leon Brown, (who received a life sentence) were convicted for the 1983 rape and murder of an 11-year-old girl.
We would like to think that justice figured out its error before we executed an innocent person, but in the words of Supreme Court Justice Antonin Scalia, “Like other human institutions, courts and juries are not perfect.” Scalia asked then, and asks us to accept without question or concern that “[o]ne cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly.”
Indeed, Scalia voted no when the Supreme Court received a petition from McCollum in 1994. It would take another twenty years for McCollum to see freedom. We should not accept such a shoddy system. Will we ever reach a point where we can absolutely prevent wrongful convictions? Probably not. But one way to start is to consider doing away with the death penalty.
It’s not impossible. In May 2015, the Republican-heavy Nebraska state legislature abolished the death penalty in that state in the face of a veto threat from the governor (that legislative action is facing a challenge much like the one in Pennsylvania).
Other states have drastically reduced the number of death sentences sought in cases, as Justice Breyer noted. The reason for this could be a number of things. Perhaps it is because we are beginning to realize that it is neither proportional nor fair nor fiscally sound. It’s arbitrary and targets marginalized individuals who are poor and nonwhite. In many cases, the very people we think deserve it plea out to take death off the table (of course wielding the death penalty as leverage can create a whole other segment of wrongful convictions).
Change on this front is difficult and it meets stiff resistance. In Pennsylvania, the District Attorneys Association disputed the governor’s moratorium by arguing that the current system is fair (never mind that Pennsylvania is the only state that does not provide financial support for lawyers to defend indigent defendants in capital cases). The warden continues to sign death notices. Whether executions will eventually resume in that state remains to be seen.
As we gear up toward a national election, there will be musings of criminal justice reform (innovation, if you will)—realigning sentences to fit the crime, reducing the prison population. There likely won’t be much talk about the death penalty since candidates don’t want to seem too soft on crime.
But doing away with capital punishment doesn’t make us soft. It means we’re evolving and fixing a system that doesn’t work, that risks killing innocent people, and that doesn’t do squat to deter crime. As a country, we can learn from our mistakes and repair a dysfunctional system. The death penalty should be one of them.
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