By Dahn Shaulis, Ph.D.
NDOC Caseworker (2001-2007)
In Nevada, I can tell you from my professional experience that Death Row does not house “the worst of the worst.” Historically, the Death Penalty in Nevada has been fraught with injustice based on inequalities of race and class. “Mitigating” and “aggravating” factors are particularly racially biased (see this link)
While its difficult to know for sure that an innocent person has died in the Nevada Death Chamber, I do know that Victor Jimenez and Roberto Miranda were both released after serving years on Death Row. Mr. Miranda settled out of court for $5,000,000 in 2006.
I can also tell you that anecdotally, one can look at those who have not received the Death Penalty, offenders such as Chaz Higgs and Darren Mack, and realize that the Death Penalty is not dealt out evenly. Corporate and governmental actions which can cause much more social damage and death are not even considered capital crimes.
Arguments Against the Death Penalty
1. First, and most importantly, the Death Penalty is a punishment that violates contemporary and evolving “standards of decency” held in the Western industrialized world.
The US trails the worldwide long-term humanitarian trend to abolish the Death Penalty. Since World War II, nearly one hundred nations have abolished the Death Penalty or created long moratoriums. The Vatican consistently opposes the Death Penalty while Methodists argue that “the Death Penalty denies the power of Christ to redeem, restore and transform all human beings.” Witnesses to executions such as Pastor Carroll Picket, a former Texas prison chaplain, have articulated the immoral and barbaric nature of killing people to show killing is wrong.
Most of the nations who maintain and use the Death Penalty have extensive human rights problems. The US joins China, Vietnam, Iran, Pakistan, Saudi Arabia, and Iraq as one of a few nations that continues to regularly execute people. Japan and Singapore are the only other highly industrialized nations to carry out capital punishment.
The abolition of the US Death Penalty would not be unique. Executions were prohibited in the US from 1972 to 1976 after the Furman v. Georgia decision. In the last decade, the Supreme Court has determined that executions of mentally retarded individuals (2002) and juveniles (2005) violated the 8th Amendment and were unconstitutional. The US, though, continues to execute mentally ill people and non-citizens which is a violation of international law.
While The American Medical Association confusingly allows doctors to participate in executions, it also states “a physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.”
The number of executions has been decreasing since its peak in 1999, as further questions about the nature of state-sponsored killing are examined. The number of people in the US sentenced to death has also been falling nationally from about 300 a year in the 1990s to 115 people in 2007. Even in Texas, the number of people sentenced to death has been decreasing significantly, reduced to only 11 people in 2008.
In 2003, Illinois Governor George Ryan commuted sentences of all Death Row inmates after finding that the Chicago Police had used torture to exact confessions. As of 2008, Illinois still has a moratorium on the Death Penalty.
Although most Americans favor the Death Penalty, 64% do not believe the death penalty serves as a deterrent and only 57% of Americans believe the death penalty is fairly applied. “Nonwhites” and people with more education are most skeptical of the death. Almost all Americans (92%) also believe that someone has been wrongly executed in the last five years (Gallup Poll).
Although 37 states allow the Death Penalty, few actually practice executions more than once every two years, and those states are almost exclusively traditional sites of slavery and racism. New York and Kansas have not executed anyone since the 1973 moratorium. In 2007, a national moratorium was placed until lethal injection questions could be answered. The state of New York also ruled that its Death Penalty was unconstitutional. In 2008, New Jersey placed a moratorium on its death penalty. Legislatures in New Mexico, Montana, Nebraska and Maryland are within a few votes of eliminating the death penalty. In 2008, The Maryland Commission on Capital Punishment reported that (1) racial and geographic disparities exist in how the death penalty is applied, (2) death penalty cases are more costly than non-death penalty cases and take a greater toll on the survivors of murder victims, and (3) there is no persuasive evidence that risk of execution is a deterrent to crime, and the unavailability of DNA evidence in some cases opens the “real possibility” of wrongly executing an innocent person.
Pro-Death Penalty proponents claim that this particular type of killing is about the rights of victims. But the Death Penalty does not bring closure to most victims. The Death Penalty feeds retribution and revenge impulses rather than the positive values of redemption, rehabilitation and healing.
2. The US Death penalty is inconsistent and arbitrary.
After conducting a three-year, eight-state study of the Death Penalty, the American Bar Association concluded that the administration of capitol punishment is “a haphazard maze of unfair practices with no internal consistency,” and called for a moratorium (ABA, 2006). The primary method of distinguishing those who receive the death penalty from those who do not is a state-by-state system of disparate aggravating and mitigating factors (Kirchmeier, 2006).
The chance a person charged with a capital crime lives or dies depends on where the crime was committed. Capital punishment is not permitted in the District of Columbia and 13 states: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin. About half of all recent executions occur in only four counties, all in the state of Texas. In 2007, Texas held 26 of the 42 US executions, where the amount of money spent on appeals is miniscule. In 2008, 18 of 37 US executions were held in Texas.
Pro-death penalty advocates claim the death penalty is imposed on society’s most heinous criminals (incorrectly labeled as “the worst of the worst”), yet no serious scholars could argue that crimes are adjudicated in proportion to the damage and suffering they cause society (Reiman). If the Death Penalty were applied in proportion to the deaths and social and economic damage created, a significant number of white collar criminals, business executives, and government officials would receive the Death Penalty. However, wealthy offenders rarely get the death penalty. Informants who can make deals and provide information are also spared and sometimes released. Serial killers who provide information on killings may also spared and in extreme cases, released.
3. The Death Penalty is unfairly and disproportionately meted out on poor people and people of color.
Pro-Death Penalty researchers do not deny that the application of the Death Penalty is racist (Shepherd, 2004) and classist. Racism pervades the criminal justice system, ranging from racial profiling prior to arrest to post-conviction representation.
There is an extensive body of literature that due process is profoundly affected by economic class. Pro-Death Penalty advocates even agree that a viable defense is expensive and that it pays to be rich if you have been accused of killing someone. Eighty to 95% of all people on Death Row cannot afford a private lawyer. In an economy where one gets what he or she pays for, private attorneys often get 2000% more money for a capital case than a court-appointed attorney. This allows wealthy killers like Robert Durst, for example, to avoid prison.
The General Accounting Office (1990) reviewed more than 50 studies of race and punishment and found “a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty.” The victim’s race is also important in whether one gets the death penalty. Juries are six times more likely to give the death penalty to those who have been accused of killing a White person. Thirty-four percent (34%) of all people executed in America since 1976 have been Black.
In McCleskey v. Georgia (1987), the Supreme Court ruled that state death penalty laws are constitutional even when statistics indicate they had been applied in racially biased ways.
Racism plays a huge role in determining who dies. In one glaring example, Texas law enforcement authorities picked Clarence Lee Brandley from among many suspects in a circumstantial case of rape and murder of a white woman. As authorities told Brandley- convicted but released in 1989 after being exonerated-“You’re the nigger, so you’re elected”.
Pro-Death Penalty adherents claim “any racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system.” These adherents base this argument from studies that do not explain why people of color are more likely to hold these aggravating factors. For example, robbery and burglary are the most common “aggravating factors” for earning a death sentence from a homicide. People from lower economic strata are much more likely to commit such crimes for economic reasons not as planned murders.
Juries are not a random selection of the citizenry, but hand-selected individuals who all, without exception, swear to favor the death penalty. In Dallas, Texas, the DA’s office prepared a manual for new staff, which said: “You are not looking for a fair juror, but rather a strong, biased and sometimes hypocritical individual who believes that Defendants are different from them in kind, rather than degree…You are not looking for any member of a minority group which may subject him to suppression-they almost always empathize with the accused…Minority races almost always empathize with the Defendant.” (Cockburn)
The Death Penalty allows racists to participate in the process while eliminating or minimizing others from the process. Cases of judicial and prosecutorial racial animus are well documented (Cockburn). Texas has an infamous history of racist district attorneys and judges. In Texas, no White person has ever been executed for killing a Black person. In Harris County, Texas, the District Attorney pursued the death sentence against black and white defendants at the same rate even though black defendants committed less heinous murders (Phillips, 2008).
No white person has been executed for the murder of a black in Georgia, nor has the death penalty ever been sought in such a case. Of the 12 blacks executed in Georgia since 1983, six were sentenced in cases where prosecutors succeeded in removing all potential black jurors.
4. The Death Penalty may increase violence by its brutalizing effect. Evidence supporting the Death Penalty as a deterrent lies “outside the bounds of credibility.”
Several studies indicate that the Death Penalty may create a “brutalizing effect.” In a study of 27 states, Emory researcher Joanna Shepherd (2005) reported that the Death Penalty deterred murder in six states, increased murder in 13 states, and had no effect on the murder rate in eight states. Sheppard added that this brutalization effect resulted in 250 additional murders per year. Studies of the Death Penalty in Arizona (Thomson, 1997) and Oklahoma (Cochran et al, 1994) reported that executions were related to increased murders. States with the highest number of Death Row inmates and the highest execution rates have the most number of law enforcement officers killed. Psychologically, violent people may decide to kill more than one person, including police, if they know they may get the Death Penalty anyway.
Studies suggesting that the death penalty serves as a deterrent are seriously flawed and fail tests of robustness and replication (Fagan, 2006). Columbia University law professor Jeffrey Fagan (2005) notes that these studies contain crucial technical and conceptual errors, including inappropriate methods of statistical analysis, failures to consider all relevant factors that drive murder rates, missing data on key variables in key states, weak to non-existent tests of concurrent effects of incarceration, and other deficiencies. University of Chicago Law School professor Cass Sunstein (2008) states that “existing studies contain significant statistical errors, and slightly different approaches yield widely varying findings, a problem exacerbated by researchers’ tendency to report only those results supporting their conclusions.”
Yale and Wharton professors John J. Donahue and Justin Wolfers (2006) state “We show that with the most minor tweaking of the [research] instruments, one can get estimates ranging from 429 lives saved per execution to 86 lives lost. These numbers are outside the bounds of credibility.”
UCLA researcher Richard A. Berk (2005) reports that studies showing the death penalty as a deterrent have a limited number of observations (executions are rare in most states). Berk suggests that Texas justice, where most of the data points exist, is the only place where the death penalty may serve as a deterrent.
Sorenson et al. (1999) questioned the deterrence value of executions even in Texas, finding no relationship between execution rates and murder rates.
According to Paul R. Zimmerman (2006), only electrocution, which is frequently horrific, has a deterrent effect.
Researchers argue that commuting sentences results in increased deaths in the community. But this argument supports abolition of the Death Penalty in the long run, because commutations will always occur.
Many other larger factors appear to have stronger relationships with homicide rates, including economics, better policing, age demographics, gun laws, drug laws, and legalized abortion. Because of these limitations, pro-death penalty researchers can only honestly suggest that the Death Penalty might be a slight deterrent (Keckler, 2006).
Death Penalty states have significantly higher murder rates than states without the Death Penalty.
The murder rate declined in Canada after capital punishment was abolished.
Only a small percentage of criminologists and police administrators believe the Death Penalty has much, if any, deterrent value.
University of Chicago economist Steven D. Levitt points out the “creative” use of data by Death Penalty proponents. Leavitt adds that “no rational criminal should be deterred by the death penalty, since the punishment is too distant and too unlikely to merit much attention.”
State laws in the US vary in their definitions of “premeditation.” In some states, premeditation can be interpreted as taking place a few seconds before the murder. Burglars and robbers, for example, rarely plan to murder, but situations get out of control and people may be killed. The offenders who do make advanced plans are often involved in heavily emotional situations are not focusing upon deterrence. Those realities, along with the fact that most offenders feel they will never be caught, negate the effects of deterrence for most offenses.
Because Death Penalty proponents can only weakly claim that Life without Parole is less safe than the death penalty, they have to believe there is a “general effect” caused by making the public fearful. In effect, the Death Penalty is used as a fear and control mechanism by the State.
5. The Death Penalty is costly.
New Jersey, which repealed its Death Penalty, estimated that it could have saved more than $200 million if it had not reinstated the Death Penalty. Recent studies in Tennessee, Kansas, Indiana, Florida, North Carolina, and Maryland have all concluded that costs associated with death penalty cases are significantly higher than those associated with Life without Parole cases. Where the Death Penalty is less costly, such as Texas, the State is willing to minimize appeals which may result in wrongful executions. The costs are even greater when the cost of capital punishment is weighed against the opportunity costs of using scarce resources on prevention.
6. A number of Death Row inmates have been exonerated. Innocent people have been executed.
When people are aware that innocent people have been executed they are more likely to believe that the Death Penalty is wrong. The number exonerated since 1973 has been estimated between 34 and 133. Pro-death penalty experts admit that at least 30 to 40 people have been exonerated and released from Death Row since 1973. Northwestern University Law School details at least 39 executions, a majority in Texas, that have been carried out in the US in the face of “compelling evidence of innocence or serious doubt about guilt.”
After reviewing the Death Penalty in Oklahoma, former LAPD detective Mark Furman stated “I no longer believe in the death penalty. I no longer have faith that it is administered fairly or justly. I fear that innocent people have been executed. That’s why I’m calling for the abolition of the death penalty, not only in Oklahoma, but in every state.”
Many exonerees have suffered more than a decade on Death Row. Pro-Death Penalty proponents accept these casualties and expect innocent people sentenced to Death to be proven innocent rather than beyond a reasonable doubt.