Tuesday, October 16, 2007

Apologia Contra Letum

This year the Supreme Court will address the constitutionality of certain aspects of the death penalty (DP). At one time I was a strong supporter of the DP. However as Winston Churchill once observed when asked why he was reversing his position on a policy, "I absolutely reserve the right to be smarter today, than I was yesterday." Today I am opposed to capital punishment. My opposition is not based on the issue of cruelty or justice. The truth is that some of those on death row deserve a level of punishment that we as a civilized nation can not impose. My reasons for opposing the DP are...

1. It has no proven deterrent value. Indeed the overwhelming body of evidence indicates the DP has no statistically significant deterrent effect.

2. There are no uniform standards for effective legal council. In some states if the defense attorney has a pulse and is not CURRENTLY disbarred he will do. Examples of some who have passed muster in the courts as adequate legal council in capital trials include lawyers who had no experience trying criminal cases (one was a tax lawyer who had never even tried a traffic ticket), drunks, a lawyer who slept through most of the trial, lawyers who called no witnesses for the defense and did not cross examine any prosecution witnesses, attorneys who have been previously suspended or disbarred and so on. It is not surprising that those states with the higher rates of executions tend to be the ones with the lowest (or no) standards for effective council.

3. Both in capital and non-capital cases their have been a disturbingly high number of wrongful convictions which have been brought to light in recent years. There are also at least two post Furman cases (one in Texas and one in Missouri) where available evidence indicates an overwhelming likelihood that innocent persons were put to death.

4. The appeals process is excruciatingly long and so expensive that it is generally cheaper to incarcerate someone for their natural life than pursue a death sentence.

5. Some states have severely limited the right of appeal in order to reduce expenses and speed up the rate of executions. In some of those states this even extends to prohibiting the introduction of exculpatory evidence discovered after the conviction! This greatly increases what I believe to be an already unacceptable risk of miscarriage of justice.

6. Statistics show that cases where the defendants were able to afford good legal council prosecutors rarely seek the death penalty even when the vital circumstances of the crime are demonstrably the same as other cases where the defendants could not afford top notch lawyers and the death penalty was sought. Translation: Those that got the capital, don't get the punishment.

7. States that do (or did in New York's case) have high standards for competent legal defense in death penalty cases see few capital sentences and very few or no executions.

New York had the highest standards for capital defense lawyers in the country during the roughly ten years the death penalty was on the books. Of the seventy-two capital cases prosecuted in New York between 1995 and 2005, sixty-three resulted in First Degree Murder convictions, fifty-one of those resulted in Natural Life sentences, eleven in death sentences and one died before being sentenced. Of the nine not convicted of First Degree Murder, seven were convicted of lesser charges and two were acquitted.

Of the eleven sentenced to death over that ten year period, in 2005 five were still on death row, six had had their sentences overturned on appeal and none had been executed. Shortly thereafter New York's Court of Appeals overturned part of the death penalty law. Subsequently the state legislature declined to amend the law to restore capital punishment to the state. The cost to the taxpayers over that ten year period exceeded $100 million (!) dollars. (Exact figures were not available from my primary sources since several counties had not reported their total expenses. The aforementioned figure is therefore conservative.)

8. There have been numerous documented instances of prosecutorial and police misconduct in capital cases. Those who question if this really ever happens should take a look at the recent case in Durham NC where a prosecutor attempted to railroad three young students from Duke University for a crime he knew never happened. It is likely the only reason they were not packed off to prison is that they came from families with the means to hire outstanding criminal defense teams.

9. Although the United States is a sovereign country, and we are within our rights to order our justice system as we see fit, I think that when virtually the entire of the developed world has abolished capital punishment and we have not, that should be cause for reassessing our position. When we stand alone in the developed world in defense of an institution that has been uniformly rejected, to not ask ourselves some very tough questions is perhaps tending towards the sin of pride and hubris. Why are we so isolated on this matter?

10. The argument for the death penalty as a form of societal self defense against irreformably violent offenders has been effectively nullified by the introduction of natural life sentences (life without parole). Yes, there are violent inmates in prisons. However, once identified they can be isolated in so called "super-max" security facilities and neutralized as a danger without killing them.


Wordsmyth said...

I agree with you on all nine counts, and I'm happy Michigan doesn't have the death penalty. We got rid of it long ago.

Athanasius said...


I seem to have taken the opposite path--I was once vehemently opposed to the death penalty, but have come to see it as justified in at least some cases.

Of your arguments, the first and last are weakest, I think:

1. The deterrent value of the DP is not the only, or necessarily even the primary, justification for its use. It was reading C.S. Lewis, years ago, that first made me start to re-think my oppostion, as Lewis argues for the DP as a preventative against the cheapening of human life. This is the basis on which I argue that the DP may sometimes be necessary.

9. The example of "virtually the entire . . . developed world" is close to worthless, in most cases. When Europe, for instance, one day submits to Sharia law (something that is by no means unlikely), I hope we won't follow suit.

I do, however, share your concerns about the acutal practice of the DP in this country, at this time (and I am still basically opposed to it on these practical grounds, though not in principle).

Yours in Christ,

Gabriel said...

I respect your position on the death penalty and, truth be told, I share it. We no longer live in an era where the death penalty is necessary as a protective measure; life incarcerated will do just fine. The primary argument for it now is one centered on retributive justice--a form of justice which, I would contend, no Christian should abide by. Of course, it is always possible that we may enter into an era where prisons cannot be safely maintained or social order decays to the point where there is no viable penal system. If such a state occurs again, I would think that the death penalty would need to be revisted simply as a matter of social protection and responsibility. Let us hope that we never live to see such days.

As for the Supreme Court case that is pending, it is unique in the current era in that it is geared towards a form of punishment rather than a class of offenders (e.g., persons under 18, the mentally retarded, etc.). The jurisprudence of the Court since the 1980's has been to narrow the applicability of the death penalty, though it seems the classification route has been exhausted. Attacking the forms of execution seems logical enough to me, though I am curious to see where the Court takes their rulings. In the past, they have been prone to strike down the applicability of the penalty on the basis that it upsets "the evolving standards of decency" of society. (An open-ended and--in my view--empty-headed standard by which to interpret the constitutional text.) Justices Thomas and Scalia have been strong opponents of that jurisprudence and, I suspect, Justices Alito and Roberts may be as well. That still leaves the other five who have historically gone to great lengths, at the expense of both law and logic, to see the death penalty limited. If I were a betting man, I'd say lethal injection's days are numbered. Still, I have no confidence that a coherent, principled, or even legally intelligible opinion will be crafted by the Court to support such a ruling.