Some thoughts on the death penalty

In recent days the death penalty has been brought back into the news through a series of events both here and abroad. Most prominently in Iraq Saddam Hussein was hanged for crimes against humanity. Here in the United States both California and Florida have suspended executions following botched lethal injections and scandalous stories in the press. New York last year effectively abolished the death penalty after ten years and over a hundred million dollars spent in capital prosecutions without a single execution. The state’s highest court invalidated a part of the death penalty law and the state legislature decided it was not worth trying to reinstate it. And just this week New Jersey’s bi-partisan commission on capital punishment returned an almost unanimous (with one dissent) recommendation to the state legislature that NJ abolish the death penalty. There are nine people on death row there and no one has been electrocuted since 1963 in the garden state.

Over at Sacramentum Vitae Mike Liccione has posted an article on the death penalty that is definitely worth reading. I still think that Avery Cardinal Dulles wrote the best short essay on the DP from a Catholic point of view though. The lead comment on Mike's article posted by Deacon Bresnahan asks how many guards have been killed by lifers over the years, this being the crux of his argument in favor of capital punishment. In our Hollywood oriented society it’s easy to confuse movies for reality. But in reality that sort of thing is unbelievably rare.

In answer to his query I can state that homicide in general has one of the lowest rates of recidivism of any crime. And although the rare exceptions always make for sensational (and tragic) headlines, the fact is that intentional murder by life sentenced inmates is so rare that its frequency of occurrence is statistically insignificant. For those inmates who are determined to be a threat there are places they can be kept with relative safety. So called super max prisons are the best option for dealing with the violent inmate.

My own feeling on this subject have evolved in recent years. Up until probably about five years ago I was a strong supporter of capital punishment. However the more I have read on the subject the less I like it. Today I am generally opposed to capital punishment in this country for the following reasons…

1. It has no deterrent value. This has been unanimously established by so many exhaustive studies that I feel safe in stating it is not a matter of opinion but rather of fact. I am not aware of a single serious study which has produced any credible evidence supporting a deterrent effect for executions.

2. The danger of miscarriage of justice has been established in recent years to be so great that in all but those very rare cases where there is absolutely zero doubt of guilt, the use of the DP is too risky.

3.. What passes for due process in those states which regularly carry out executions is extremely questionable with few or no standards for competent criminal defense and appellate rights. By contrast in those states where strict standards exist for competent legal council and effective appellant review few or no executions have occurred.

4. It has also been shown repeatedly that there is a direct relationship between the race, class and resources of defendants and the likelihood of facing a death sentence. The electric chair should not be reserved for those who can’t afford the best lawyers or who were not fortunate in choosing their parents or ethnicity.

5. The cost of capital punishment vastly exceeds the cost of incarceration for life. This can not be altered without reducing access to the appellate system which further increases the already unacceptable likelihood of a miscarriage of justice.

6. Adjudication of capital cases has been tying our legal and court system in knots for far too long. Even in those states where executions are common it is rare for an inmate to be killed in less then five years from the date of his sentence, and it is not uncommon for these cases to drag on for decades.

7. In this country the availability of life without parole (LWOP) and super maximum security facilities renders the death penalty unnecessary as a means for neutralizing dangerous offenders.

8. Although one may not dismiss the need for just punishment as one of the moral ends of the legal system it can not outweigh the preceding factors. Retributive justice by itself can not justify endangering innocent lives or the tremendous cost to society both in its moral values and also its public treasure by attempting to sustain this system solely for the benefit of exacting “proportionate justice.”

Given the aforementioned points, I think that it is time to relegate the death penalty to the history books and move forward with more enlightened and effective sanctions for offenders. In some countries there may not yet exist the conditions that permit the safe and long term incarceration of dangerous criminals. In those situations capital punishment may still be a rare necessity. However, here that is no longer the case. Although I am not aware of Orthodoxy having ever spoken on the matter with one voice, I feel comfortable in saying that there seems to be a broad consensus in the Church today that the death penalty is generally not compatible with Christian ethics. Although the Roman Catholic Church has dissected the issue with its customary precise and legal approach, its view is essentially the same as that of most Orthodox including myself. The basic thrust is this. Deliberate killing is not moral except (possibly) in those rare cases of self defense where lesser means are not available to end the threat. This is not the case in the United States and thus the death penalty is no longer moral.