It’s Time to Kill the Death Penalty

In Old Testament times, the death penalty was used as the punishment for murder (Genesis 9:6). But death was also the punishment for a number of other offenses, such as eating leavened bread during the Feast of Unleavened Bread (Exodus 12:15), being a stubborn child (Deuteronomy 21:21), picking up sticks on the Sabbath day (Numbers 15: 32-36), insulting your parents (Exodus 21:17), going to the Tabernacle if you are not a priest (Numbers 1:51), and ignoring the verdict of a judge or priest (Deuteronomy 17:12). Today the death penalty is still used in 27 states in America, including the state I live in—Ohio.

In 2007 the American Bar Association released the results of a three-year study of the death penalty.[1] Although the American Bar Association takes no position for or against the death penalty, they issued a moratorium on the death penalty because “the process is deeply flawed.” As a researcher of aggression and violence for over 25 years, I also believe the death penalty is “deeply flawed.” There are at least eight serious problems with the death penalty.

1. The Death Penalty Models the Behavior it Seeks to Prevent

The death penalty is used to deter killers, but it models the very behavior it seeks to prevent. It teaches the lesson that it is acceptable to kill, as long as the state is the one doing the killing. This is somewhat paradoxical. As my friend Jed said, “We don't like people who kill other people, so to show everyone how much we don't like people who kill people, we are going to kill people who kill other people. It seems like capital punishment pretty much goes against everything it claims to be for.” The death penalty answers violence with violence. As American novelist Wendell Berry said, “Violence breeds violence. Acts of violence committed in ‘justice’ or in affirmation of ‘rights’ or in defense of ‘peace’ do not end violence. They prepare and justify its continuation.”

2. You Might Kill the Wrong Person!

William Blackstone, the English jurist, judge, and Tory politician of the 18th century, said, “Better that ten guilty persons escape than that one innocent suffer.” The death penalty is irreversible, so it is critical that it be used on the actual killer. Over 165 people have been exonerated and freed from death row, such as on the basis of DNA evidence.[2] It is estimated that 4.1% of death row inmates are innocent.[3] As of 2018, there are about 3,000 people on death row in America today.[4] Thus, about 120 of them, we could estimate, are innocent. Since the U.S. Supreme Court reinstated the death penalty in 1976,[5] 1,470 individuals have been executed in the U.S. (as of 2019).[6] It is difficult to know for sure how many innocent people have been executed, but it appears at least 15 have.[6]

3. The Death Penalty Does Not Reduce Murder Rates

The available evidence indicates that the death penalty does not reduce murder rates. FBI Unified Crime reports show that states with the death penalty have homicide rates 48-101% higher than states without the death penalty.[7] Similarly, an international study of criminal violence analyzed data from 110 nations over a period of 74 years and found that the death penalty does not deter criminals.[8] One reason why the death penalty might not deter criminals is that most murders are committed in a fit of rage, after an intense argument, when people rarely consider the consequences of their actions.[9] Former U.S. Attorney General Janet Reno said: “I have inquired for most of my adult life about studies that might show that the death penalty is a deterrent. And I have not seen any research that would substantiate that point.”[10] As one scholar notes, “No one who kills, by permanent or temporary insanity, through jealousy, drug addiction, robbery, alcoholism, retardation, brain damage, chemical imbalance, rape, revenge, a feeling of no way out or rage, thinks of the death penalty at the time of the murder.”[11]

4. The Death Penalty Targets The Poor

Of the 22,000 murders that occur each year in the U.S., about 1% result in death sentences.[12] Which 1% depends largely on the effectiveness of the attorney, which often depends on how much money the accused has. U.S. Supreme Court Justice Ruth Bader Ginsburg said, “People who are well represented at trial do not get the death penalty.”[13] Ginsburg also criticized the "meager" amount of money spent to defend poor people. OJ Simpson's lawyer—who received $5 million for defending him—said, "In the U.S., you're better off, if you're in the system, being guilty and rich than being innocent and poor.”[14] There are no billionaires or millionaires on death row.

5. The Death Penalty Targets People of Color

The American Bar Association three-year study concluded: “Every state studied appears to have significant racial disparities in imposing the death penalty, particularly associated with the race of the victim, but little has been done to rectify the problem.” Other statistical evidence is consistent with this conclusion.[15] Blacks make up 12% of the U.S. population, but they make up 48% of those on death row (55% of those on death row are people of color). The odds of receiving death penalty increase by 38% when the accused is Black. Although 50% murders involve white victims, 80% of death penalty cases involve white victims. In addition, black people are sometimes excluded from juries [16]. About 95% of elected prosecutors are white.[17] In 2021, Viginia's Governor granted posthumous pardons to seven Black men ("Martinsville Seven") who were executed for the alleged rape of a white woman in 1951 in Martinsville, Virginia.[18] The men were tried without adequate due process.

6. The Death Penalty May Constitute “Cruel and Unusual Punishment.”

The Eighth Amendment to the U.S. Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” According to the U.S. Supreme Court[19], punishment is cruel and unusual if it is too severe for the crime, arbitrary, is rejected throughout society, and is not more effective than a less severe penalty. The U.S. is one of the few countries in the world that has executed minors under 18-years-old. In 2005, the U.S. Supreme Court ruled that the death penalty for minors offended "evolving standards of decency" and therefore constituted “cruel and unusual punishment.”[20]

According to the American Civil Liberties Union (ACLU), “The capital punishment system is discriminatory and arbitrary and inherently violates the Constitutional ban against cruel and unusual punishment. The ACLU opposes the death penalty in all circumstances, and looks forward to the day when the United States joins the majority of nations in abolishing it.”[21] There are five methods currently used to execute people—lethal injection, electrocution, gas chamber, firing squad, hanging, and for the first time ever in Alabama — nitrogen gas. In 2020 the American Veterinary Medical Association deemed it "unacceptable" as a euthanization method for all mammals except pigs, since it could be "distressing."[22] With lethal injection drugs becoming more difficult to obtain, several states are using alternatives (e.g., electrocution, firing squad).[23] The ACLU argues that there are significant problems with each method. Consider just a few examples of several botched cases.

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A prisoner generally dies within seven minutes of receiving a lethal injection. Drugs for lethal injections in the United States were obtained from Europe, where the death penalty is illegal. However legal pressures and concerns from manufacturers in Europe have made traditional execution drugs unavailable. Thus, states have been trying experimental drug cocktails for lethal injections. There have been a number of "botched executions" involving lethal injections. In an Arizona case, for example, Joseph Rudolph Wood received two new drugs (midazolam + hydromorphone), and it took him nearly two hours to die.[24] Sometimes the victim being electrocuted bursts into flames. In 1983, for example, the electrocution of John Evans in Alabama was described in a sworn testimony by his attorney: “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…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…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."[25]

Autopsy results show that people who are put to death by lethal injection have lungs that weigh about twice the normal amount. because they are filled with blood, plasma, and other fluids. Froth and foam was also found in the lungs of some inmates. The inmates experienced severe form of a condition called pulmonary edema, which can induce the feeling of suffocation or drowning. The inmates did not experience a quick and painless death. Rather, as they gasped for air they experienced "A death of organ failure, of a dramatic nature that I recognized would be associated with suffering," said Dr. Joel Zivot.[26]

7. The Death Penalty Costs More Than Life in Prison

Some people may be surprised to learn that the death penalty is far more expensive to implement than life in prison without the possibility of parole. As a conservative estimate, it costs $137 million per year for death penalty vs. — about 12 times more.[27] And the gap is increasing over time as the amount of time between sentencing and execution increases. Many death penalty cases involve a long, drawn out, complex, and expensive judicial process that takes many years. Even if the death penalty deterred murders (it does not), research shows that for punishment to be effective it must be administered immediately after the offense.

A sentence of life in prison without parole is in actually a sentence of death in prison.[28] Nobody sentenced to life in prison without parole in the US has ever been released on parole.[28] There are only two ways that someone convicted of murder and sentenced to life without parole can be released from prison (or a death sentence): (1) a pardon or commutation from the governor, or (2) by having a court overturn their conviction.

8. The Death Penalty Negatively Impacts Jurors, Justices, Governors, Executioners, and the Families of Victims

Any discussion of the death penalty should also consider the potential psychological impact of executing another human being on the jurors, justices, governors, executioners, and families involved.[29] One writer concluded, "Jurors are unrecognized victims of the death penalty."[30] The Capital Jury Project interviewed 1,198 jurors from 353 capital trials in 14 states and found that 81% of female jurors and 18% of male jurors regretted their decisions, and 63% of female jurors and 38% of male jurors sought counseling after the trial.[31] As the former superintendent of the Oregon State Penitentiary said, "After each execution, I had staff members who decided they did not want to be asked to serve in that capacity again. Others quietly sought employment elsewhere. A few told me they were having trouble sleeping, and I worried they would develop post-traumatic stress disorder if they had to go through it another time."[32]

Often a death row inmate requests a last-minute stay of execution, which is either granted or denied by the nine U.S. Justices of the Supreme Court. Justice Ruth Bader Ginsburg said that making such decisions was the "hardest part of the job I do."[34] Justice Lewis F. Powell said he had "come to think that capital punishment should be abolished, because it serves no useful purpose."[33] Justice Paul Stevens concluded, "Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits."[34] Justice Sandra Day O'Connor also added her voice to the "growing chorus of skepticism about the administration of capital punishment in the United States.”[34]

The last hope a death row inmate has for a stay of execution is a grant of clemency (for life in prison) by the state's Governor. California Governor Edmund "Pat" Brown had to make this decision about 59 inmates, and granted clemency to 23 of them. He said, "the longer I live, the larger loom those fifty-nine decisions about justice and mercy that I had to make as governor. They didn’t make me feel godlike then: far from it; I felt just the opposite. It was an awesome, ultimate power over the lives of others that no person or government should have, or crave. And looking back over their names and files now, despite the horrible crimes and the catalog of human weaknesses they comprise, I realize that each decision took something out of me that nothing—not family or work or hope for the future—has ever been able to replace."[33] Illinois Governor George Ryan granted clemency to all 167 inmates he decided on because he regarded the criminal justice system as “fraught with error and [which] has innumerable opportunities for innocent people to be executed."[31] Governor Pat Quinn, also from Illinois, said: "As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government. Since 1977, Illinois has seen 20 people exonerated from death row. ... To say that this is unacceptable does not even begin to express the profound regret and shame we, as a society, must bear for these failures of justice."

Corrections officers actually carry out the executions, and 31% of them suffer Post-Traumatic Stress Disorder (PTSD). In comparison, 20% of Iraq War veterans suffer PTSD. Lewis E. Lawes, who supervised 303 executions in New York, wrote, “I shall ask for the abolition of the Penalty of Death, until I have the infallibility of human judgment demonstrated to me.”[34]

Donald Cabana, who served as a corrections officer in Missouri, Florida, and Mississippi, said you "do not have the right to ask me, or any prison official, to bloody my hands with an innocent person’s blood. Not in the name of justice, not in the name of fairness."[31] Ron McAndrews, a corrections officer from Florida and Texas, said: "[T]hose of us who have lived through an execution know just what the death penalty does to those who must perform it. In my tenure as warden, I helped perform three electrocutions in Florida and oversaw five lethal injections in Texas. In both places, I saw staff traumatized by the duties they were asked to perform. Officers who had never even met the condemned fought tears, cowering in corners so as not to be seen. Some of my colleagues turned to drugs and alcohol to numb the pain of knowing that a man had died by their hands. I myself was haunted by the men I was asked to execute in the name of the State of Florida. I would wake up in the middle of the night to find them lurking at the foot of my bed. One of them had been cooked to death in a botched electrocution. I stood just four feet away watching flames rise out of his head, hearing the electrician ask me, ‘Is that enough? Should I continue?’ It wasn’t until I left my post as warden that I finally sought counseling for the trauma I had been through."[34]

Craig Baxley, Jim Harvey, and Jon Ozmint, who performed different roles related to the task of carrying out executions in South Carolina for the Department of Corrections, describe the trauma they experienced by carrying out these role.[33] For example, after he executed his first prisoner, "Baxley felt like a different person. Nightmares replaced his previously sound sleep. Painful knots invaded his stomach. Anytime he became nervous, his hands started to drip with sweat like they did in the death chamber." He couldn't stop thinking about suicide.

Some family members of murder victims feel that a death sentence will provide closure. But death penalty court proceedings can drag out for years, which prolongs their pain. By contrast, a life sentence is swift and certain, allowing families to move on.[28] One study found higher levels of physical and psychological health, and more satisfaction with the criminal justice system, for families when the sentence was life not death.[35]

Summary

In summary, there are many good reasons to abolish the death penalty, in the remaining states in the U.S. and around the world. Unfortunately, some states continue to execute inmates even when there is widespread calls for clemency, as in the case of Missouri executing Brian Dorsey even though corrections officials and his appeals judge argued that is capital sentence should be commuted.[36] Murder is a terrible crime that is never justified and should always be punished. However, I believe that the punishment should be life in prison without the possibility of parole, rather than the death penalty. Life in prison without the possibility of parole keeps the public safe from killers while eliminating the risk of an irreversible mistake. Most Americans agree with me; they prefer a life sentence (60%) to the death penalty (36%).[37]

Closing Quote

“But what then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? 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.” — Albert Camus, French philosopher (won the Nobel Prize in Literature in 1957 at age 44)