[P]recisely because ambivalence makes people more susceptible to changing their minds, the reframing of the death penalty debate has significantly reduced support for capital punishment.
In “The Decline of the Death Penalty and the Discovery of Innocence,” political scientists Frank Baumgartner, Suzanna DeBoef and Amber Boydstun found that since the mid-1990s, news coverage of the death penalty has increasingly focused on exonerations and wrongful executions. In earlier eras, the debate in the media was more frequently about other issues, such as capital punishment’s constitutionality or cost.
This shift in media coverage, which has highlighted problems in the death penalty’s application, has encouraged the public to evaluate capital punishment in terms of fairness, especially the potential for innocent people to be sent to death row. As a consequence, Baumgartner, DeBoef and Boydstun find that along with a decline in the U.S. murder rate and other high-profile events (such as former Illinois governor George Ryan’s (R) 2001 mass commutation of death row inmates), negative news drove down support for capital punishment.
I wouldn’t say that the media is killing the death penalty, as the headline over at Ezra Klein’s blog does. I’d say, instead, that information about the death penalty is killing the death penalty.
And, in particular, one piece of information:
It turns out that information about innocent people who have been released from death row makes people less supportive of the death penalty. In fact, it matters more than information about the excessive cost, the racial and socio-economic biases, or the general lack of a deterrent effect.
What people really don’t like about the death penalty, when they learn about it, is that it’s irreversible and absolutely riddled with error.
Who would have guessed?!
LTMC: Radley Balko has mentioned this on numerous occasions when he is criticized by “limited government” types about his opposition to the Death Penalty. Conservatives, Balko says, often talk about how incompetent the Government is at a range of activities, but when it comes to executing people, many of them suddenly trust the Government to make the right call. This is particularly odd, given that execution is the one government policy that can’t be remedied or reversed. If the State messes up, say, a public works contract, they can go back and fix what went wrong; they could refund someone’s money, re-assign the contract, get new help, etc. If the State messes up an execution, however, there’s no “unkilling” the person. Mobilizing the machinery of the state to kill people is, if anything, more problematic than mobilizing it for any other purpose.
There’s a thoughtful piece about teaching Platonic dialogues to death row inmates in Tennessee that concludes with a powerful statement about how the transformations undergone by death row inmates, if seen, fundamentally undermine the goals of the death penalty system:
[I]n order to perform the anaesthetic function of soothing public anxieties around both violent crime and the violence of the criminal justice system, the prisoner’s own aesthetic practices must remain invisible. The job of the death row inmate is not to transform himself, but to remain the same throughout an appeals process that can last years or even decades.
[…]
There are countless prisoners on death row who are working harder than we can imagine to transform themselves and to build a meaningful sense of community. We could learn a lot from these people if we weren’t so determined to kill them.
The piece sets this argument about the expectations of the public against discussions with the inmates about the trial and execution of Socrates, as well as artwork created by death row inmates. These conversations about philosophy, literature, and art belie the impressions of death row inmates that keep the vast majority of us so apathetic about strapping them down and injecting them full of poison.
LTMC: I am reminded of Winston Churchill’s speech to the House of Commons in 1910 (via David Cole):
The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State— a constant heart-searching by all charged with the duty of punishment— a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it.
One of the reasons that the death penalty remains alive in America today, I think, is because many Americans still entertain the notion that it is ok for the government to kill people who appear to have done something terrible. It is not an entirely unreasonable reaction for someone to witness a brutal crime, and believe firmly that the person responsible should have at least equal suffering visited upon them as well. The retributive impulse is most strong when we perceive that a person has been unjustly harmed. The greater and more permanent the harm, the greater our collective lust for retribution grows.
This is Lydia Tillman. On July 4 of this year, while Lydia was walking home after holiday festivities, she was attacked, assaulted, brutally raped, and left for dead. Her attacker poured bleach on her body and set her apartment on fire before he left. By what must’ve been sheer force of will, Lydia managed to escape the impending inferno of her apartment by jumping out of a second-story window, and then waited in bushes near her building until emergency crews came to respond to the fire.
This is what Lydia Tillman looked like after the attack:
Lydia’s brother is now raising money for reconstructive surgery on her jaw (h/t MohandasGandhi). The attack also resulted in a rather serious stroke that has impacted her ability to speak, although her speech abilities have improved with time.
Lydia’s attacker was caught through diligent police work. A Denver, Colorado police detective was able to put two and two together, and connected the circumstances of Lydia’s attack to the murder of another woman, 19-year old Kenia Monge, who had been killed recently. Police used DNA evidence from Lydia’s case to track down a man named Travis Forbes. Travis was arrested, and is currently serving life behind bars.
For some, the arrest and life imprisonment of Travis Forbes is justice. For others, it is too sweet a fate for a man who has inflicted such unconscionable damage on the lives of others. The comments from the Daily News article linked above express frustration with the result. One commenter laments:
[T]he good people of Colorado get to foot the bill for this savage for the rest of his life. Justice……Stinks.
He got life because he agreed to take the police to where he buried the body of Kenia Monge, the 19-year old girl he strangled to death.
Another:
He got life on a plea, but even that shouldn’t have been an option - it should have been ‘lead us to the body and we won’t use bleach before your execution.
Another appears to be a fan of the phrase “cruel and unusual:”
Let’s lock him in a 2 by 3 foot cell and feed him gruel through a straw. Every now and then we can pour bleach through the straw instead of gruel to remind him of what got him in such a predicament. And no toilet or sink to wash up. Just a drain on the floor. He can wallow in his own filth as his limbs atrophy from lack of exercise.
Hmm.
Travis Forbes presents the “Hard Case” for Death Penalty abolitionists. He is clearly a danger to himself and the people around him. He committed two heinous crimes, and if he wasn’t caught, likely would have committed more. Understandably, people want Travis Forbes, at a minimum, to experience the same pain that he inflicted on his victims. He raped and murdered Kenia Monge, and then raped and nearly murdered Lydia Tillman. It seems fundamentally fair, at the most basic level, that he should experience some equivalent manner of suffering. Moreover, given that he has killed at least one person, it seems fair that he should be killed. After all, fair is fair.
Yet killing Travis Forbes will not bring Kenia Monge back to life. It will not undo the damage to Lydia Tillman’s body. It will certainly not extinguish the sorrow, regret, and emptiness that no doubt burden the hearts of Kenia Monge’s family. The only purpose it can serve is to satiate our vicarious lust for vengeance on Monge and Tillman’s behalf. Still, is this not enough to justify whatever terrible fate we can visit on Travis Forbes? Has he not forfeited the right to be treated decently?
In November of last year, I wrote a lengthy post about the Jerry Sandusky case, in which I explained why Jerry Sandusky should not, if found guilty, receive the death penalty. In that post, I recounted a scene from the movie TheProposition,in which the youngest member of a band of Australian Outlaws, referred to collectively as the “Burns Gang,” is arrested and held for truly awful crimes. The youngest brother, Michael, is held in custody in contemplation of a “Grand bargain” of sorts. One of the brothers, named Charlie, is told by Captain Stanley, a local law enforcement official, that if Charlie can bring his older brother, Arthur, into custody, he will let Michael go. During the interim, however, the townsfolk in a local village come to realize that Michael is in custody, and demand that Michael be brought into town square and made to answer publicly for his crimes:
Michael is strapped to a whipping post, and proceeds to be viciously whipped with a cat-o-nine-tails by an Executioner. A local official calls for 100 lashes as the townsfolk gather to witness Michael being flogged.
What happens is that the townsfolk see firsthand the skin being flayed off Michael’s back. They hear his cries of pain. They see the blood streaming out of deep grooves laid into his back. They see the strips of sinew hanging loose from his desecrated torso. At one point, the Executioner flinches as a droplet of blood from Michael’s back catches him in the eye. There is little, if any skin left on Michael’s back at that point, and the Executioner is barely past 30 lashes.
Eventually, after Michael falls limp and unconscious from the shock of the injuries being inflicted on his body, the assembled townsfolk grow disgusted with the spectacle. Their thirst for retribution is dulled by their sudden realization that even hideous criminals, who do hideous things to other people, are still human beings. We come to realize that, in order for Michael to be punished commensurate with his crimes, it would have to be done outside the presence of those who, moments ago, were calling for his head. They can’t bear to witness the functional results of their desire for punishment, even knowing that Michael has done terrible things to “earn” his fate.
The Death Penalty is objectionable, even in hard cases like that of Travis Forbes, because it reduces us to the same moral plane as the murderer. Most normal people have an aversion to killing. It’s the reason why soldiers who kill someone for the first time often experience revulsion and mental trauma. It’s also the reason why the townsfolk in The Proposition could not bare to watch Michael continue to be flogged. By killing the murderer, we reduce ourselves to his level. As Justice Brennan said in 1976, dissenting in Gregg v. Georgia:
The fatal constitutional infirmity in the punishment of death is that it treats “members of the human race as nonhumans, as objects to be toyed with and discarded. (It is) thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.” … As such it is a penalty that “subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Eighth Amendment].” I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. “Justice of this kind is obviously no less shocking than the crime itself, and the new ‘official’ murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first.
There are of course other reasons to oppose the Death Penalty: the frighteningly large incidence of wrongful convictions, the unreliability of so-called “humane” alternatives, the racial disparities with which the Death Penalty is inflicted, all counsel against its continued use. But what remains to be observed in Lydia Tillman’s case is that Travis Forbes is incapacitated. He will not be able to hurt anyone else. We do not need to engage in a modern-day equivalent of putting his head on a pike to do justice to the families of his victims. Perhaps this is why dozens of family members of murder victims supported Governor Malloy of Connecticut when he signed a bill abolishing the Death Penalty in his state.
But the point is this: Death Penalty abolitionists cannot turn away from a brutal crime like that which was visited on Lydia Tillman. You must be able to look at the photo of Lydia Tillman’s mangled visage in the hospital, knowing that somebody intentionally did this to her, and be able to argue without a hint of irony or loss of conviction that her attacker should not be put to death. If you can do that, then you cannot be accused of intellectual inconsistency or moral cowardice.
The Travis Forbes’ of the world are the hard case for Death Penalty abolitionists. And you must be able to defend abolition even in the worst case scenarios where guilt is all but certain, and the victimization severe. If abolitionists can do that, then I think the Death Penalty’s days in America are numbered. If abolitionists cannot, then I imagine we’ll continue to have the Death Penalty in America for a long time.
The good news is that we can make the case. We just need to have the courage to do so, even when it’s least convenient.
Montana’s Lewis and Clark County District Court [official website] ruled[opinion, PDF] Thursday that the state’s lethal injection method [technical manual, PDF] violates the provision of the Montana constitution [text, PDF] that forbids cruel and unusual punishment. The lawsuit was filed by the American Civil Liberties Union of Montana [advocacy website] on behalf of two death row inmates. Judge Jeffrey Sherlock held that Montana’s execution procedure, which involves injections of three different drugs, is cruel and unusual under US Supreme Court [official website] precedent.
"The death penalty today provides virtually none of the benefits its advocates proffer as justifications for its existence. The tiny number of death sentences imposed, the even tinier number actually carried out, the enormous drain on public resources, and the decade-long delays that inevitably occur thoroughly undermine any deterrent or retributive benefits today’s death penalty might otherwise provide."
Some fellow Tumbloggers are having a discussion surrounding the Death Penalty and George Zimmerman. The discussion is largely centered around the deterrence value of the Death Penalty. MohandasGandhi notes recent studies that indicate the Death Penalty doesn’t deter the crimes it serves to punish (as well as the racially disproportionate manner in which it is levied against minorities). Dank-Potion notes a series of studies reported by WaPo that indicate that the Death Penalty does have a deterrent effect (though she points out that they do not support the Death Penalty nor wish it for Zimmerman). Some previous thoughts of mine on George Zimmerman and punishment can be found here and here.
This discussion is timely, given that a recent report released by Columbia law School found that a man named Carlos Hernandez was wrongfully executed in 1989, due inter alia to incompetent investigation. But the point that I think is being missed here is that we needn’t have a conversation about whether the death penalty deters in order to oppose it (See Below).
Regarding deterrence generally, if you want compelling evidence that the death penalty doesn’t deter, you might look at the fact that homicide rates in Europe, where the Death Penalty has been abandoned, are much lower than in America, and have been for some time. That means one of two conclusions are possible: a) softer justice systems work in aggregate to deter serious crimes more effectively, or b) America is uniquely “evil” and culturally requires harsh punishments to deter people from committing homicide. The latter conclusion strikes me more as black comedy than a serious policy position.
But all of this goes to the wayside when you consider the fact that we know with a statistically significant degree of certainty that innocent people are executed. In order to support the Death Penalty, you must support the killing of innocent people. That alone is grounds to oppose it. We can’t have a conversation about whether the Death Penalty is justified without bringing this up.
Some might argue that the number of innocent people saved by execution is worth putting a comparably smaller number of people to death. The WaPo article in the links above notes how this “salvation of innocents” calculus plays out:
Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14).
In other words, we have a statistical spread in these studies that varies by a factor of six. However, if we take these studies at face value, it nonetheless remains a fair conclusion from these studies that there is some deterrence value to the death penalty, even if we don’t exactly know what that value is.
Let’s grant it for argument’s sake. Let us grant that the death penalty deters between 3-18 murders for every convicted killer executed. We are now left with a dubious moral calculus: the law review article I linked above notes a factual wrongful conviction rate in capital rape-murder cases of 3.3-5% (i.e. 3-to-5 out of every 100 people convicted are innocent). According to the DPIC, there were 52 executions in 2009. If we use the low figure, we can safely assume that 156 homicides were prevented. Meanwhile, roughly 2 people were wrongfully executed in order to prevent those homicides. Sounds great! Kill 2 to save 156? Why not?
But here’s the problem with these numbers: WaPo notes that “In 2005, there were 16,692 cases of murder and nonnegligent manslaughter nationally. There were 60 executions.” So if there was a reduction in executions, we would expect the number to rise, correct? As noted above, in 2009, there were 52 executions. The Disaster Center, using FBI Uniform Crime Report data, notes that there were 15,399 murders in 2009. Meaning that even though the number of executions decreased when comparing ‘05 and ‘09, the number of murders went down by 1,300. The DPIC notes that the long term trends indicate the same relationship: “[T]here was a 12% decrease in executions in 2010 compared to 2009 and a more than 50% drop compared to 1999.” In 1999, there were 15,522 murders. And in 2009? 15,399. Reducing the number of executions by half over ten years not only failed to result in an increase in the number of homicides, it actually decreased.
Now there’s a whole bunch of other problems with these numbers too. It’s entirely possible, for example, that there were other mitigating factors that need to be taken into consideration. Indeed, that’s why the studies indicating deterrence have been roundly criticized. WaPo notes:
Some [critics] claim that the pro-deterrent studies made profound mistakes in their methodology, so their results are untrustworthy. Another critic argues that the studies wrongly count all homicides, rather than just those homicides where a conviction could bring the death penalty. And several argue that there are simply too few executions each year in the United States to make a judgment.
Economist Justin Wolfers was rather blunt:
We just don’t have enough data to say anything…[and] [t]his isn’t left vs. right. This is a nerdy statistician saying it’s too hard to tell…[w]ithin the advocacy community and legal scholars who are not as statistically adept, they will tell you it’s still an open question. Among the small number of economists at leading universities whose bread and butter is statistical analysis, the argument is finished.
So we return to the familiar conclusion that there is no conclusion as to whether the Death Penalty deters. Which in turn brings us back to the original question: Is the Death Penalty justified? In answering this question, what we do know is that it is empirically unjustifiable to make a positive claim that the Death Penalty deters people from violent crime. It is not empirically unjustifiable, however, to state that over the past decade, as we’ve executed less people, less people are being murdered. We also know that in the European Union, which has abolished the Death Penalty, homicide rates are significantly lower than they are in America. Correlation is not causation. But if the evidence proves anything, it shows that the “salvation of innocents” calculus supports abolishing the Death Penalty rather than retaining it.
In light of all this, should George Zimmerman receive the Death Penalty if he is found guilty of 2nd degree murder? No. If Norway can accept punishing Anders Brevik with 21 years in prison for killing and/or injuring 100+ people, we should be able to accept a modest sentence for George Zimmerman if/when he is found guilty. And, for that matter, every person after him who may face the justice system.
"The fatal constitutional infirmity in the punishment of death is that it treats “members of the human race as nonhumans, as objects to be toyed with and discarded. (It is) thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.” … As such it is a penalty that “subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Eighth Amendment].” I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. “Justice of this kind is obviously no less shocking than the crime itself, and the new ‘official’ murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first."
Do you think that the use of lethal injection in the U.S., which is portrayed in a clinical and seemingly ‘humane’ manner, has a negative impact on the anti-death penalty movement? Versus how a lot of the countries in Europe banned it when things like hanging or firing squad, which are a lot more violent, were the common practice?
No, lethal injection does not have a negative impact on the anti-death penalty movement if the advocate is phrasing his or her objections correctly.
First, let us consider the methodology of lethal injection. Lethal injection is a three-part process. I will borrow Wikipedia’s explanation here:
Sodium thiopental or pentobarbital[13]: ultra-short action barbiturate, an anesthetic agent capable of rendering the prisoner unconscious in a few seconds.
Pancuronium bromide: non-depolarizing muscle relaxant, causes complete, fast and sustained paralysis of the skeletal striated muscles, including the diaphragm and the rest of the respiratory muscles; this would eventually cause death by asphyxiation.
This is supposed to be a fool-proof process in theory. But in practice, it is not. In 2009, Ohio authorities tried to execute a man named Romell Broom for two hours, during which they were unable to maintain an IV through which to inject him. While there was no physical harm to Broom per se, Imagine the psychological torture of those two hours; incompetent executioners blundering around with a needle that carries on its tip the tripartite exotic state-sponsored poison that will knock you unconscious, paralyze your lungs, and then induce cardiac arrest, literally choking you nearly to death right before stopping your heart. I simply cannot imagine the scope of agonizing anticipation that filled the anxiety-shod minutes of those two hours.
Second, many opponents argue that under the traditional three-drug method, a person who became aware during the second or third phase of the execution would have no way of expressing their pain or discomfort, because their entire bodies are paralyzed during the second phase of the execution. Imagine waking up during your execution, being unable to breathe, literally suffocating to death because your lungs are paralyzed, but you have absolutely no way to express your discomfort or pain to your captors. We should reject the invitation to call any procedure “humane” wherein such a possibility exists, even if it only exists in minute, perhaps even exceedingly rare measure.
Third, studies have been done that suggest that these fears are not theoretical: a 2005 study by The Lancet found that officials who administer lethal injections are often either improperly trained, or lack sufficient equipment to properly monitor the state of the prisoner. Returning to Wikipedia:
In 2005, University of Miami researchers, in cooperation with an attorney representing death row inmates, published a research letter in the medical journal The Lancet. The article presented protocol information from Texas and Virginia which showed that executioners had no anesthesia training, drugs were administered remotely with no monitoring for anesthesia, data were not recorded and no peer-review was done. Their analysis of toxicology reports from Arizona, Georgia, North Carolina, and South Carolina showed that post-mortem concentrations of thiopental in the blood were lower than that required for surgery in 43 of 49 executed inmates(88%); 21 (43%) inmates had concentrations consistent with awareness.[4]This led the authors to conclude that there was a substantial probability that some of the inmates were aware and suffered extreme pain and distress during execution.
It was perhaps these objections that led the inventor of lethal injection, Jay Chapman, to remark that ”It never occurred to me when we set this up that we’d have complete idiots administering the drugs.” To be fair, Chapman’s retort is actually a bit unfair and defensive: his remarks imply that a competently trained and equipped execution team would be able to deliver these injections in a flawless manner with zero problems. But to assume as much is to remove the procedure itself from the stark realities of our criminal justice system; namely the limited resources of prison officials, and society’s tendency to show callous disregard for the inherent human dignity of prisoners on death row.
If Chapman had shown due regard for these realities, he probably could have concluded that it’s almost a foregone conclusion that these injections would be administered in a problematic fashion in a noticeable minority of cases. And given that the Bill of Rights protects individuals, not groups of people, one transgression is one too many for the purposes of the Eighth Amendment’s ban on Cruel and Unusual Punishment. A sound Constitutional rule of decision would defend human dignity by shielding us from any significant probability of cruel and unusual punishment inherent in a state’s execution system. Giving out points for effort doesn’t cut it.
But even with all this being said; we could assume that 100% of lethal injections were performed flawlessly, and it still would not hurt the argument for abolition of the death penalty. Why? Because, among other reasons, as recent as 2007, empirical studies showed a minimum factual wrongful conviction rate in Capital rape-murder cases of 3.3%. If you assume that all of those people are put to death, that means that more than 3 out of every 100 people we sentence to death are completely innocent of the crimes they’ve committed. It is hardly a comfort to know that these people were put to death humanely. They shouldn’t have been put to death at all.
The fact remains that it is impossible for our criminal justice system to administer the death penalty fairly. Indeed, it was this realization that led Daniel Malloy, the Governor Connecticut and a former prosecutor, to sign a bill today repealing the death penalty in Connecticut. His remarks are worth quoting at length:
My position on the appropriateness of the death penalty in our criminal justice system evolved over a long period of time. As a young man, I was a death penalty supporter. Then I spent years as a prosecutor and pursued dangerous felons in court, including murderers. In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect. While it’s a good system designed with the highest ideals of our democratic society in mind, like most of human experience, it is subject to the fallibility of those who participate in it. I saw people who were poorly served by their counsel. I saw people wrongly accused or mistakenly identified. I saw discrimination. In bearing witness to those things, I came to believe that doing away with the death penalty was the only way to ensure it would not be unfairly imposed.
So in short: no. The alleged humaneness of lethal objection provides no obstacle to advocates for abolition of the death penalty. 3 out of every 100 killed wrongfully is not made just by virtue of the fact that they were killed humanely. Anymore than if they’d been simply murdered in the same fashion by a benevolent serial killer with a heart of gold.
