The Case Against The Death Penalty

Hugo Adam Bedau

TABLE OF CONTENTS

INTRODUCTION
EIGHT OBJECTIONS TO THE DEATH PENALTY

Capital Punishment Is Not A Deterrent To Capital Crimes
Capital Punishment Is Unfair
Capital Punishment Is Irreversible
Capital Punishment Is Barbarous
Capital Punishment Is Unjustified Retribution
Capital Punishment Costs More Than Incarceration
Capital Punishment Is Less Popular Than the Alternatives
Internationally, Capital Punishment Is Widely Viewed As Inhumane And Anachronistic

FOR FURTHER INFORMATION AND REFERENCE
RESOURCES
NOTES

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 hold that the state should not arrogate unto 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. Therefore, through litigation, legislation, commutation and by helping to foster a renewed public outcry against this barbarous and brutalizing institution, we strive to prevent executions and seek the abolition of capital punishment.

INTRODUCTION

In 1972, the Supreme Court declared that under then-existing laws "the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." (Furman v. Georgia, 408 U.S. 238) The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so "harsh, freakish, and arbitrary" as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations.

But within four years after the Furman decision, several hundred persons had been sentenced to death under new capital punishment statutes written to provide guidance to juries in sentencing. These statutes typically require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In 1976, the Supreme Court moved away from abolition, holding that "the punishment of death does not invariably violate the Constitution." The Court ruled that the new death penalty statutes contained "objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death." (Gregg v. Georgia, 428 U.S. 153). Subsequently 38 state legislatures and the Federal government have enacted death penalty statutes patterned after those the Court upheld in Gregg. In recent years, Congress has enacted death penalty statutes for peacetime espionage by military personnel and for drug-related murders.

Executions resumed in 1977, and as of May 1997, over 3,200 men and women were under a death sentence and more than 360 had been executed.

EIGHT OBJECTIONS TO THE DEATH PENALTY

Despite the Supreme Court's 1976 ruling in Gregg v. Georgia, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds:

Two conclusions are inescapable: Capital punishment does not deter crime, and the death penalty is uncivilized in theory and unfair and inequitable in practice.

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

Deterrence is a function not only of a punishment's severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons.


CAPITAL PUNISHMENT IS NOT A DETERRENT TO MURDER
Ratio of Executions to the National Murder Rate: 1976-1995

YEAR # OF EXECUTIONS NATIONAL MURDER RATE
1976 0 8.8
1977 1 8.8
1978 0 9
1979 2 9.7
1980 0 10.2
1981 1 9.8
1982 2 9.1
1983 5 8.3
1984 21 7.9
1985 18 7.9
1986 18 8.6
1987 25 8.3
1988 11 8.3
1989 16 8.7
1990 23 9.4
1991 14 9.8
1992 31 9.3
1993 38 9.5
1994 31 9
1995 56 8

Source: Death Penalty Information Center, Washington, D.C.

1) A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions.

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.

2) Persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes.

3) If, however, severe punishment can deter crime, then long-term imprisonment is severe enough to deter any rational person from committing a violent crime.

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

Using methods pioneered by economists, three investigators concluded that capital punishment does deter murderers.11 Subsequently, however, several qualified investigators independently examined these claims – and all rejected them.12 In its thorough report on the effects of criminal sanctions on crime rates, the National Academy of Sciences concluded: "It seems unthinkable to us to base decisions on the use of the death penalty" on such "fragile" and "uncertain" results. "We see too many plausible explanations for [these] findings... other than the theory that capital punishment deters murder."13

Furthermore, there are clinically 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.14

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.15 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.16

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 twelve death row prisoners had a prior homicide conviction.17 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.

CAPITAL PUNISHMENT IS UNFAIR

Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.

Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman. Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that "the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions." A recent study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist "legacy of slavery."18 Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black.19

Our nation's death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one's conviction reviewed by any higher court was higher for blacks.20

In recent years, it has been widely believed that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black.21 Of the 3,200 prisoners on death row in 1996, 40% were black. This rate is not so obviously unfair if one considers that roughly 50 percent of all those arrested for murder were also black.22 Nevertheless, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

An exhaustive statistical study of racial discrimination in capital cases in Georgia, for example, showed that "the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims."23 In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – an impossible task. The Court also held that the evidence failed to show that there was "a constitutionally significant risk of racial bias...."(481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was "best presented to the legislative bodies," subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful.24

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded: "Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision" and that "race of victim influence was found at all stages of the criminal justice system process...."25

These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime. Furthermore, they lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person. Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color.26 Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Both gender and socio-economic class also determine who receives a death sentence and who is executed. During the 1980s and early 1990s, only about one percent of all those on death row were women27 even though women commit about 15 percent of all criminal homicides.28 A third or more of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse.29 Since 1930, only 33 women (12 of them black) have been executed in the United States.30

Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established.

Fairness in capital cases requires, above all, competent counsel for the defendant. Yet "approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried."31 Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman, "One searches our chronicles in vain for the execution of any member of the affluent strata in this society"(408 US 238).

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. "Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination."32

Justice John Marshall Harlan, writing for the Court, noted:

"… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability." (402 U.S. 183 (1971))

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court "do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce."33

Evidence recently obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge's instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. "Juror comprehension of the law… is mediocre. The effect… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law."34

Even if the jury's sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor's decision to prosecute for a capital or lesser crime, the court's willingness to accept or reject a guilty plea, the jury's decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant's sanity, and the governor's final clemency decision, among others.

Discretion in the criminal-justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice.

Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997. The House judged the current system to be "a haphazard maze of unfair practices."35

Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice. In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual "constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime."36

CAPITAL PUNISHMENT IS IRREVERSIBLE

Unlike all 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."37 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. However, a large body of evidence from the 1980s and 1990s shows that innocent people are often convicted of crimes – including capital crimes – and that some have been 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.38

Consider this handful of representative cases:

Each of these cases has a reassuring ending: The innocent prisoner is saved from execution and released. But other cases are more troubling.

Several factors help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, faulty police work, coerced confessions, the defendant's previous criminal record, inept defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is volunteers 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. These are the methods of capital punishment in use in mid-1997.

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. 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."42 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."43

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. 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)

Execution by suffocation in the lethal gas chamber may soon be abolished. 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."44

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. 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."45 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."47

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."48

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.'"49

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."50

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.51

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."52

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."53

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."54

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."55

Across the nation, many who have survived the murder of a loved one have joined Murder Victims' Families for Reconciliation (headquartered in Virginia), in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.

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."56 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. 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.57

In Maryland, a comparison of capital trial costs with and without the death penalty for the years 1979-1984 concluded that a death penalty case costs "approximately 42 percent more than a case resulting in a non-death sentence."58 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."60

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.61

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."62 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.63

In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus64 and also ended all funding of the regional death penalty "resource centers" charged with providing counsel on appeal in the federal courts.65 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. 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%.66 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…."67

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."68 By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime.69

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. More than half of all nations have abolished it either by law or in practice.70

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.

FOR FURTHER INFORMATION AND REFERENCE

Additional copies of this pamphlet, as well as resource material such as newsletters, books, legal and legislative information, death-row census, reprinted articles, bibliographies, and referrals to other national and statewide anti-death penalty groups may be obtained from the Capital Punishment Project, American Civil Liberties Union, 122 Maryland Avenue NE, Washington, DC, 20002. Diann Y. Rust-Tierney, Esq., is the project's director. This pamphlet and other ACLU publications are available through the ACLU at 800-775-ACLU or on the Internet at http://www.aclu.org.

The Death Penalty Information Center, 1320 18th Street, NW, Washington, DC 20036, (202-293-6970), periodically issues reports on various aspects of capital punishment, among them: Sentencing for Life: Americans Embrace Alternatives to the Death Penalty (April 1993); On the Front Line: Law Enforcement Views on the Death Penalty (February 1995); With Justice for Few: The Growing Crisis in Death Penalty Representation (October 1995) and Twenty Years of Capital Punishment: A Reevaluation (June 1996).

The National Coalition to Abolish the Death Penalty, which coordinates the work of a wide variety of organizations opposed to capital punishment, is located at 1436 U Street, NW, Suite 104, Washington DC 20009.

RESOURCES

No one volume about the death penalty currently serves as an up-to-date source book on all aspects of the subject but a number of useful materials are available. The Death Penalty in America: Current Controversies, Oxford University Press, 1997, ed. H. A. Bedau, is the most recent and comprehensive single volume. In addition to books and articles cited in the endnotes, several other volumes published during the past decade contain valuable information and arguments, including:

Margery B. Koosed, ed., Capital Punishment, 3 vols., Garland Publishing, 1996; Randall Coyne and Lyn Entzeroth, eds., Capital Punishment and the Judicial Process, Carolina Academic Press, 1994; Victor L. Streib, ed., A Capital Punishment Anthology, Anderson Publishing Co., 1993; Welsh S. White, The Death Penalty in the Nineties, University of Michigan Press, 1991; Raymond Paternoster, Capital Punishment in America, Free Press, 1991: Samuel R. Gross and Robert Mauro, Death and Discrimination, Northeastern University Press, 1989; Michael L. Radelet, ed., Facing the Death Penalty, Temple University Press, 1989; Kenneth C. Haas and James A. Inciardi, eds., Challenging Capital Punishment, Sage Publications, 1988; Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda, Cambridge University Press, 1986.

Several more specialized volumes also deserve mention: William A. Schabas, The Death Penalty As Cruel Treatment and Torture: Capital Punishment Challenged in the World's Courts, Northeastern University Press, 1997; William A. Schabas, Abolition of the Death Penalty in International Law, Cambridge University Press, 1997; Herbert H. Haines, Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972-1994, Oxford University Press, 1996; Peter Hodgkinson and Andrew Rutherford, eds., Capital Punishment: Global Issues and Prospects, Waterside Press, England, 1996; Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putman, In Spite of Innocence: Erroneous Convictions in Capital Cases, Northeastern University Press, 1992 (rev. ed. 1994); Robert M. Bohm, ed., The Death Penalty in America: Current Research, Anderson Publishing Co., 1991; Victor L. Streib, Death Penalty for Juveniles, Indiana University Press, 1987; and Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776-1865, Oxford University Press, 1989.

Several scholarly and legal journals have devoted whole issues to various legal, sociological, and historical aspects of the problem of the death penalty, notably Thomas Cooley Law Review, Vol. 13, No. 3 (1996); Buffalo Law Review, Vol. 44, No. 2 (Spring 1996); Indiana Law Journal, Vol. 70, No. 4 (Fall 1995); American University Law Review, Vol. 45, No. 2 (December 1995); Notre Dame Journal of Law, Ethics, & Public Policy, Vol. 8, No. 1 (1994); American Journal of Criminal Law, Vol. 22, No. 1 (Fall 1994); Journal of Social Issues, Vol. 50, No. 2 (Summer 1994); Law & Society Review, Vol. 27, No. 1 (1993);Florida State University Law Review, Vol. 20, No. 1 (Summer 1992); Dickinson Law Review, Vol. 95, No. 4 (Summer 1991);New York University Review of Law & Social Change, Vol. 18, Nos. 2 and 3, (1990-1991); Albany Law Review, Vol. 54, Nos. 3 and 4 (1990);Loyola of Los Angeles Law Review, Vol. 23, No. 1 (November 1989);Journal of Contemporary Criminal Justice, Vol. 5, No. 4 (December 1989).

Statistical information on death sentences and executions since 1930 may be obtained in the U.S. Bureau of Justice Statistics Bulletin "Capital Punishment," an annual report appearing under various titles since the 1950's. The NAACP Legal Defense and Educational Fund publishes "Death Row, U.S.A., " issued since the 1970s several times a year; it reports current demographic information on executions and the death row population.

NOTES

1. Dieter, Death Penalty Information Center, On the Front Line (1995), p. 2.

2. See U.S. Dept. of Justice, "Capital Punishment," annually, 1990 et seq.

3. See Uniform Crime Reports, annually, 1990 et seq.

4. See Uniform Crime Reports, 1993, and note 2 et seq.

5. See Uniform Crime Reports, annually, 1990 et seq.

6. Cochran, Chamlin and Seth. "Deterrence, or Brutalization?" in Criminology (1994).

7. U.S. Bureau of Justice Statistics, "Capital Punishment 1994," p. 14; "Death Row U.S.A.", Summer 1996, pp. 7-8.

8. Bailey and Peterson, Criminology (1987), p. 22. See also their general discussion of death penalty deterrence in Bedau, ed. The Death Penalty in America: Current Controversies (1997).

9. Sourcebook of Criminal Justice Statistics, 1994, p. 587, and Sourcebook 1995, p. 603.

10. Wolfson, in Bedau, ed., The Death Penalty in America, 3rd ed. (1982),p. 167.

11. Ehrlich, in American Economic Review (1974); Phillips, in American Journal of Sociology (1980); and Layson, in Southern Economic Journal (1985).

12. Lempert, in Crime & Delinquency (1983); Peterson and Bailey, in Chambliss, ed., Criminal Law in Action, 2nd ed. (1984); Bowers, in Hasse and Inciardi, eds., Challenging Capital Punishment (1988); Peterson and Bailey, inSocial Forces (1988), and Fox and Radelet, in Loyola of Los Angeles Law Review (1989).

13. Blumstein, Cohen and Nagin, eds., Deterrence and Incapacitation, (1975), p. 358.

14. West, Solomon, and Diamond, in Bedau and Pierce, eds., Capital Punishment in the United States (1976).

15. Bedau, "Recidivism, Parole, and Deterrence," in Bedau, ed.,Death Penalty in America, 3rd ed.

16. Marquart and Sorensen, in Loyola of Los Angeles Law Review (1989).

17. Bureau of Justice Statistics, "Capital Punishment 1994."

18. Marquart, Ekland-Olson, and Sorensen, The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990 (1994)

19. Bureau of Justice Statistics, "Capital Punishment 1977"; Death Row USA," Summer 1996.

20. Bowers, Legal Homicide (1984); Streib, Death Penalty for Juveniles (1987); "Death Row USA," Summer 1996.

21. "Death Row USA," 1976 et seq. Bureau of Justice Statistics, "Capital Punishment, 1995."

22. Uniform Crime Reports, 1972-1995.

23. Baldus, Woodworth, and Pulaski, Equal Justice and the Death Penalty (1990), p. 401.

24. See Edwards and Conyers, in University of Dayton Law Review (1995).

25. U.S. General Accounting Office, Death Penalty Sentencing (1990), pp. 5,6.

26. "Death Row, USA," Summer 1996 and Sourcebook of Criminal Justice Statistics – 1995.

27. U.S. Bureau of Justice Statistics, "Capital Punishment," 1980-1994.

28. Uniform Crime Reports, 1980-1994.

29. Memorandum, National Coalition to Abolish the Death Penalty, January 1991.

30. U.S. Bureau of Justice Statistics, "Capital Punishment, 1979"; "Death Row USA," Summer 1995.

31. Tabak, in Loyola of Los Angeles Law Review (1984).

32. Gross and Mauro, Death and Discrimination (1989), p. 224.

33. Black, Capital Punishment: The Inevitability of Caprice and Mistake, 2nd ed. (1982).

34. Symposium on the Capital Jury Project, Indiana Law Journal (1995), p.1181.

35. "Bar Association Leaders Urge Moratorium on Death Penalty," The New York Times, Feb. 4, 1997, p. A 20.

36. International Commission of Jurists, Administration of the Death Penalty In The United States (1996), p. 69

37. Lucas, Receuil des Debats... (1831), pt. II, p. 32.

38. Radelet, Lofquist, and Bedau, in Thomas M. Cooley Law Review (1977); Radelet, Bedau, and Putnam, In Spite of Innocence (1992); Bedau and Radelet, "Miscarriages of Justice in Potentially Capital Cases," in Stanford Law Review (1987),

39. Davies, White Lies (1991)

40. David Kaplan, "Hung on Technicality," Newsweek, April 6, 1992; Jill Smolow, "Must This Man Die?", Time, May 18, 1992, p. 40.

41. Radelet, Lofquist, and Bedau, in Thomas M. Cooley Law Review (1997).

42. Glass v. Louisiana, 471 U.S. 1080 (1985).

43. Boston Globe, April 24, 1983. p. 24.

44. Eric Brazi, "State Prepares for Switch to Lethal Injection," San Francisco Examiner, Jan. 14, 1996.

45. "Murderer Executed After a Leaky Lethal Injection," The New York Times, December 14, 1988, p. A29.

46. Ibid.

47. Blaustein, "Witness to Another Execution," Harpers Magazine, May 1994, p. 53.

48. Los Angeles Times, March 24, 1985, Pt IV, p. 5.

49. Cabana, Death at Midnight: The Confession of an Executioner (1996), p. 177, 186, 190.

50. Lawes, Life and Death in Sing Sing (1928).

51. Teeters, in Journal of the Lancaster County Historical Society (1960).

52. The Boston Globe, August 16, 1976, p. 17.

53. Camus, "Reflections on the Guillotine," inResistance, Rebellion, and Death (1960).

54. Coretta Scott King, Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981.

55. Kerry Kennedy, Foreword to Gray and Stanley, A Punishment in Search of A Crime (1989).

56. Spangenberg and Walsh, in Loyola of Los Angeles Law Review (1989), p. 47.

57. N.Y. State Defenders Assn., "Capital Losses" (1982).

58. U.S. Govt. Accounting Office, Limited Data Available in Costs of Death Sentences (1989), p. 50.

59. Cited in Spangenberg and Walsh, note 56.

60. David von Drehle, "Capital Punishment in Paralysis," Miami Herald, July 10, 1988.

61. Cook and Lawson, The Costs of Processing Murder Cases in North Carolina (1993), pp. 97-98.

62. Dieter, Millions Misspent: What Politicians Don't Say About the High Costs of the Death Penalty (1992), p. 9.

63. Greenhouse, "Judicial Panel Urges Limits on Appeals by Death Row Inmates," The New York Times, Sept. 22, 1989.

64. See Tabak, in Seton Hall Law Review (1996); Yackel, in Buffalo Law Review (1996); Coyle, in National Law Journal (May 20 1996); and the Panel Discussion in Loyola University Chicago Law Journal (1996).

65. Carol Castenada, "Death Penalty Centers Losing Support Funds," USA Today, Oct. 24, 1995, p. 38; Coyle, in National Law Journal (Sept. 18, 1995 and Jan. 15, 1996).

66 Dieter, Sentencing For Life: Americans Embrace Alternatives to the Death Penalty (1993).

67. Ancel, The Death Penalty in European Countries (1962), p. 55

68. UN, Ecosoc, Official Records 58th Sess. (1971), Suppl. 1, p. 36.

69. Hood, The Death Penalty: A Worldwide Perspective, rev. ed. (1996).

70. Hood, The Death Penalty (1996); Amnesty International, press release, Oct. 1996.

ABOUT THE AUTHOR

Hugo Adam Bedau is Austin Fletcher Professor of Philosophy at Tufts University. He is the author of Death Is Different: Studies in the Morality, Law, and Politics of Capital Punishment (1987), the co-author of In Spite of Innocence: Erroneous Convictions in Capital Cases (1992, rev. ed. 1994), the editor of The Death Penalty in America (1964, 1982, 1997), and the co-editor of Capital Punishment in the United States (1976).

ACLU CAPITAL PUNISHMENT PROJECT ADVISORY COMMITTEE 1993-1997

Leigh Dingerson (National Coalition to Abolish the Death Penalty)*
Father Robert F. Drinan, Professor of Law,
Georgetown University Law Center
Shanara Gilbert**, Associate Professor of Law,
School of Law, City University of New York
Ron Hampton, Director,
National Black Police Association
Wade Henderson, Director,
Leadership Conference on Civil Rights (Washington Bureau, NAACP)
Reverend Eleanora Ivory, Director,
Presbyterian Church (USA)
Charles K. Kamasaki, Vice President,
National Council of La Raza
Denise LeBoeuf, Esq., Staff Attorney,
Loyola Death Penalty Resource Center
Conrad Martin, Executive Director,
Fund for Constitutional Government
Kica Matos, Activist, School of Law,
Cornell University (Capital Punishment Project, NAACP LDF)
Henry Schwarzchild**,
National Coalition to Abolish the Death Penalty, New York
Bryan Stevenson, Executive Director,
Equal Justice Initiative, Montgomery, Alabama

*Organizational affiliation for identification purposes.
1993-1996 affiliation is shown in brackets.
**Deceased.

ACLU CAPITAL PUNISHMENT PROJECT STAFF

Diann Rust-Tierney, Esq., Director
Hunter Labovitz, Esq., Legal Fellow (1994-1996)
Travia Cole, Project Administrator
Phyllis Turner, Esq., Legal Fellow (1994-1995)
Judith S. Bellin, Writer/Editor
Robert Vandivier, Staff Assistant

ACLU CAPITAL PUNISHMENT PROJECT
American Civil Liberties Union
122 Maryland Avenue, N.E.
Washington, D.C. 20002
Telephone (202) 675-2319
Fax (202) 546-0738
Email: cappunaclu@aol.com

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