Arguments for and Against the Death Penalty

Society has always used pun­ish­ment to dis­cour­age would-be crim­i­nals from unlaw­ful action. Since soci­ety has the high­est inter­est in pre­vent­ing mur­der, it should use the strongest pun­ish­ment avail­able to deter mur­der, and that is the death penal­ty. If mur­der­ers are sen­tenced to death and exe­cut­ed, poten­tial mur­der­ers will think twice before killing for fear of los­ing their own life.

For years, crim­i­nol­o­gists ana­lyzed mur­der rates to see if they fluc­tu­at­ed with the like­li­hood of con­vict­ed mur­der­ers being exe­cut­ed, but the results were incon­clu­sive. Then in 1973 Isaac Ehrlich employed a new kind of analy­sis which pro­duced results show­ing that for every inmate who was exe­cut­ed, 7 lives were spared because oth­ers were deterred from com­mit­ting mur­der. Similar results have been pro­duced by dis­ci­ples of Ehrlich in follow-up studies.

Moreover, even if some stud­ies regard­ing deter­rence are incon­clu­sive, that is only because the death penal­ty is rarely used and takes years before an exe­cu­tion is actu­al­ly car­ried out. Punishments which are swift and sure are the best deter­rent. The fact that some states or coun­tries which do not use the death penal­ty have low­er mur­der rates than juris­dic­tions which do is not evi­dence of the fail­ure of deter­rence. States with high mur­der rates would have even high­er rates if they did not use the death penalty.

Ernest van den Haag, a Professor of Jurisprudence at Fordham University who has stud­ied the ques­tion of deter­rence close­ly, wrote: ​“Even though sta­tis­ti­cal demon­stra­tions are not con­clu­sive, and per­haps can­not be, cap­i­tal pun­ish­ment is like­ly to deter more than oth­er pun­ish­ments because peo­ple fear death more than any­thing else. They fear most death delib­er­ate­ly inflict­ed by law and sched­uled by the courts. Whatever peo­ple fear most is like­ly to deter most. Hence, the threat of the death penal­ty may deter some mur­der­ers who oth­er­wise might not have been deterred. And sure­ly the death penal­ty is the only penal­ty that could deter pris­on­ers already serv­ing a life sen­tence and tempt­ed to kill a guard, or offend­ers about to be arrest­ed and fac­ing a life sen­tence. Perhaps they will not be deterred. But they would cer­tain­ly not be deterred by any­thing else. We owe all the pro­tec­tion we can give to law enforcers exposed to special risks.”

Finally, the death penal­ty cer­tain­ly ​“deters” the mur­der­er who is exe­cut­ed. Strictly speak­ing, this is a form of inca­pac­i­ta­tion, sim­i­lar to the way a rob­ber put in prison is pre­vent­ed from rob­bing on the streets. Vicious mur­der­ers must be killed to pre­vent them from mur­der­ing again, either in prison, or in soci­ety if they should get out. Both as a deter­rent and as a form of per­ma­nent inca­pac­i­ta­tion, the death penal­ty helps to pre­vent future crime.

Those who believe that deter­rence jus­ti­fies the exe­cu­tion of cer­tain offend­ers bear the bur­den of prov­ing that the death penal­ty is a deter­rent. The over­whelm­ing con­clu­sion from years of deter­rence stud­ies is that the death penal­ty is, at best, no more of a deter­rent than a sen­tence of life in prison. The Ehrlich stud­ies have been wide­ly dis­cred­it­ed. In fact, some crim­i­nol­o­gists, such as William Bowers of Northeastern University, main­tain that the death penal­ty has the oppo­site effect: that is, soci­ety is bru­tal­ized by the use of the death penal­ty, and this increas­es the like­li­hood of more mur­der. Even most sup­port­ers of the death penal­ty now place lit­tle or no weight on deter­rence as a seri­ous jus­ti­fi­ca­tion for its continued use.

States in the United States that do not employ the death penal­ty gen­er­al­ly have low­er mur­der rates than states that do. The same is true when the U.S. is com­pared to coun­tries sim­i­lar to it. The U.S., with the death penal­ty, has a high­er mur­der rate than the coun­tries of Europe or Canada, which do not use the death penalty.

The death penal­ty is not a deter­rent because most peo­ple who com­mit mur­ders either do not expect to be caught or do not care­ful­ly weigh the dif­fer­ences between a pos­si­ble exe­cu­tion and life in prison before they act. Frequently, mur­ders are com­mit­ted in moments of pas­sion or anger, or by crim­i­nals who are sub­stance abusers and act­ed impul­sive­ly. As some­one who presided over many of Texas’s exe­cu­tions, for­mer Texas Attorney General Jim Mattox has remarked, ​“It is my own expe­ri­ence that those exe­cut­ed in Texas were not deterred by the exis­tence of the death penal­ty law. I think in most cas­es you’ll find that the mur­der was com­mit­ted under severe drug and alcohol abuse.”

There is no con­clu­sive proof that the death penal­ty acts as a bet­ter deter­rent than the threat of life impris­on­ment. A 2012 report released by the pres­ti­gious National Research Council of the National Academies and based on a review of more than three decades of research, con­clud­ed that stud­ies claim­ing a deter­rent effect on mur­der rates from the death penal­ty are fun­da­men­tal­ly flawed. A sur­vey of the for­mer and present pres­i­dents of the coun­try’s top aca­d­e­m­ic crim­i­no­log­i­cal soci­eties found that 84% of these experts reject­ed the notion that research had demon­strat­ed any deter­rent effect from the death penalty .

Once in prison, those serv­ing life sen­tences often set­tle into a rou­tine and are less of a threat to com­mit vio­lence than oth­er pris­on­ers. Moreover, most states now have a sen­tence of life with­out parole. Prisoners who are giv­en this sen­tence will nev­er be released. Thus, the safe­ty of soci­ety can be assured with­out using the death penalty.

Ernest van den Haag
Professor of Jurisprudence and Public Policy, Fordham University. Excerpts from ” The Ultimate Punishment: A Defense,” (Harvard Law Review Association, 1986)

“Execution of those who have com­mit­ted heinous mur­ders may deter only one mur­der per year. If it does, it seems quite war­rant­ed. It is also the only fit­ting ret­ri­bu­tion for mur­der I can think of.”

…

“Most abo­li­tion­ists acknowl­edge that they would con­tin­ue to favor abo­li­tion even if the death penal­ty were shown to deter more mur­ders than alter­na­tives could deter. Abolitionists appear to val­ue the life of a con­vict­ed mur­der­er or, at least, his non-exe­cu­tion, more high­ly than they val­ue the lives of the inno­cent vic­tims who might be spared by deter­ring prospective murderers.

Deterrence is not alto­geth­er deci­sive for me either. I would favor reten­tion of the death penal­ty as ret­ri­bu­tion even if it were shown that the threat of exe­cu­tion could not deter prospec­tive mur­der­ers not already deterred by the threat of impris­on­ment. Still, I believe the death penal­ty, because of its final­i­ty, is more feared than impris­on­ment, and deters some prospec­tive mur­der­ers not deterred by the thought of impris­on­ment. Sparing the lives of even a few prospec­tive vic­tims by deter­ring their mur­der­ers is more impor­tant than pre­serv­ing the lives of con­vict­ed mur­der­ers because of the pos­si­bil­i­ty, or even the prob­a­bil­i­ty, that exe­cut­ing them would not deter oth­ers. Whereas the life of the vic­tims who might be saved are valu­able, that of the mur­der­er has only neg­a­tive val­ue, because of his crime. Surely the crim­i­nal law is meant to pro­tect the lives of poten­tial vic­tims in pref­er­ence to those of actual murderers.”

…

“We threat­en pun­ish­ments in order to deter crime. We impose them not only to make the threats cred­i­ble but also as ret­ri­bu­tion (jus­tice) for the crimes that were not deterred. Threats and pun­ish­ments are nec­es­sary to deter and deter­rence is a suf­fi­cient prac­ti­cal jus­ti­fi­ca­tion for them. Retribution is an inde­pen­dent moral jus­ti­fi­ca­tion. Although penal­ties can be unwise, repul­sive, or inap­pro­pri­ate, and those pun­ished can be pitiable, in a sense the inflic­tion of legal pun­ish­ment on a guilty per­son can­not be unjust. By com­mit­ting the crime, the crim­i­nal vol­un­teered to assume the risk of receiv­ing a legal pun­ish­ment that he could have avoid­ed by not com­mit­ting the crime. The pun­ish­ment he suf­fers is the pun­ish­ment he vol­un­tar­i­ly risked suf­fer­ing and, there­fore, it is no more unjust to him than any oth­er event for which one know­ing­ly vol­un­teers to assume the risk. Thus, the death penal­ty can­not be unjust to the guilty criminal.”

Full text can be found at PBS​.org.

Hugo Adam Bedau (deceased)
Austin Fletcher Professor of Philosophy, Tufts University
Excerpts from ​“The Case Against The Death Penalty”
(Copyright 1997, American Civil Liberties Union)

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

When crime is planned, the crim­i­nal ordi­nar­i­ly con­cen­trates on escap­ing detec­tion, arrest, and con­vic­tion. The threat of even the sever­est pun­ish­ment will not dis­cour­age those who expect to escape detec­tion and arrest. It is impos­si­ble to imag­ine how the threat of any pun­ish­ment could pre­vent a crime that is not premeditated.…

Most cap­i­tal crimes are com­mit­ted in the heat of the moment. Most cap­i­tal crimes are com­mit­ted dur­ing moments of great emo­tion­al stress or under the influ­ence of drugs or alco­hol, when log­i­cal think­ing has been sus­pend­ed. In such cas­es, vio­lence is inflict­ed by per­sons heed­less of the con­se­quences to them­selves as well as to others.…

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

The vast pre­pon­der­ance of the evi­dence shows that the death penal­ty is no more effec­tive than impris­on­ment in deter­ring mur­der and that it may even be an incite­ment to crim­i­nal vio­lence. Death-penal­ty states as a group do not have low­er rates of crim­i­nal homi­cide than non-death-penalty states.…

On-duty police offi­cers do not suf­fer a high­er rate of crim­i­nal assault and homi­cide in abo­li­tion­ist states than they do in death-penal­ty states. Between l973 and l984, for exam­ple, lethal assaults against police were not sig­nif­i­cant­ly more, or less, fre­quent in abo­li­tion­ist states than in death-penal­ty states. There is ​‘no sup­port for the view that the death penal­ty pro­vides a more effec­tive deter­rent to police homi­cides than alter­na­tive sanc­tions. Not for a sin­gle year was evi­dence found that police are safer in juris­dic­tions that pro­vide for cap­i­tal pun­ish­ment.’ (Bailey and Peterson, Criminology (1987))

Prisoners and prison per­son­nel do not suf­fer a high­er rate of crim­i­nal assault and homi­cide from life-term pris­on­ers in abo­li­tion states than they do in death-penal­ty states. Between 1992 and 1995, 176 inmates were mur­dered by oth­er pris­on­ers; the vast major­i­ty (84%) were killed in death penal­ty juris­dic­tions. During the same peri­od about 2% of all assaults on prison staff were com­mit­ted by inmates in abo­li­tion juris­dic­tions. Evidently, the threat of the death penal­ty ​‘does not even exert an incre­men­tal deter­rent effect over the threat of a less­er pun­ish­ment in the abo­li­tion­ist states.’ (Wolfson, in Bedau, ed., The Death Penalty in America, 3^rd ed. (1982))

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

Click here for the full text from the ACLU web­site.
 

When some­one takes a life, the bal­ance of jus­tice is dis­turbed. Unless that bal­ance is restored, soci­ety suc­cumbs to a rule of vio­lence. Only the tak­ing of the mur­der­er’s life restores the bal­ance and allows soci­ety to show con­vinc­ing­ly that mur­der is an intol­er­a­ble crime which will be pun­ished in kind.

Retribution has its basis in reli­gious val­ues, which have his­tor­i­cal­ly main­tained that it is prop­er to take an ​“eye for an eye” and a life for a life.

Although the vic­tim and the vic­tim’s fam­i­ly can­not be restored to the sta­tus which pre­ced­ed the mur­der, at least an exe­cu­tion brings clo­sure to the mur­der­er’s crime (and clo­sure to the ordeal for the vic­tim’s fam­i­ly) and ensures that the mur­der­er will cre­ate no more victims.

For the most cru­el and heinous crimes, the ones for which the death penal­ty is applied, offend­ers deserve the worst pun­ish­ment under our sys­tem of law, and that is the death penal­ty. Any less­er pun­ish­ment would under­mine the val­ue soci­ety places on protecting lives.

Robert Macy, District Attorney of Oklahoma City, described his con­cept of the need for ret­ri­bu­tion in one case: ​“In 1991, a young moth­er was ren­dered help­less and made to watch as her baby was exe­cut­ed. The moth­er was then muti­lat­ed and killed. The killer should not lie in some prison with three meals a day, clean sheets, cable TV, fam­i­ly vis­its and end­less appeals. For jus­tice to pre­vail, some killers just need to die.”

Retribution is anoth­er word for revenge. Although our first instinct may be to inflict imme­di­ate pain on some­one who wrongs us, the stan­dards of a mature soci­ety demand a more measured response.

The emo­tion­al impulse for revenge is not a suf­fi­cient jus­ti­fi­ca­tion for invok­ing a sys­tem of cap­i­tal pun­ish­ment, with all its accom­pa­ny­ing prob­lems and risks. Our laws and crim­i­nal jus­tice sys­tem should lead us to high­er prin­ci­ples that demon­strate a com­plete respect for life, even the life of a mur­der­er. Encouraging our basest motives of revenge, which ends in anoth­er killing, extends the chain of vio­lence. Allowing exe­cu­tions sanc­tions killing as a form of ​‘pay-back.’

Many vic­tims’ fam­i­lies denounce the use of the death penal­ty. Using an exe­cu­tion to try to right the wrong of their loss is an affront to them and only caus­es more pain. For exam­ple, Bud Welch’s daugh­ter, Julie, was killed in the Oklahoma City bomb­ing in 1995. Although his first reac­tion was to wish that those who com­mit­ted this ter­ri­ble crime be killed, he ulti­mate­ly real­ized that such killing ​“is sim­ply vengeance; and it was vengeance that killed Julie.… Vengeance is a strong and nat­ur­al emo­tion. But it has no place in our justice system.”

The notion of an eye for an eye, or a life for a life, is a sim­plis­tic one which our soci­ety has nev­er endorsed. We do not allow tor­tur­ing the tor­tur­er, or rap­ing the rapist. Taking the life of a mur­der­er is a sim­i­lar­ly dis­pro­por­tion­ate pun­ish­ment, espe­cial­ly in light of the fact that the U.S. exe­cutes only a small per­cent­age of those con­vict­ed of mur­der, and these defen­dants are typ­i­cal­ly not the worst offend­ers but mere­ly the ones with the fewest resources to defend themselves.

Louis P. Pojman
Author and Professor of Philosophy, U.S. Military Academy. Excerpt from ​“The Death Penalty: For and Against,” (Rowman & Littlefield Publishers, Inc., 1998)

“[Opponents of the cap­i­tal pun­ish­ment often put forth the fol­low­ing argu­ment:] Perhaps the mur­der­er deserves to die, but what author­i­ty does the state have to exe­cute him or her? Both the Old and New Testament says, “‘Vengeance is mine, I will repay,’ says the Lord” (Prov. 25:21 and Romans 12:19). You need spe­cial author­i­ty to jus­ti­fy tak­ing the life of a human being.

The objec­tor fails to note that the New Testament pas­sage con­tin­ues with a sup­port of the right of the state to exe­cute crim­i­nals in the name of God: ​“Let every per­son be sub­ject­ed to the gov­ern­ing author­i­ties. For there is no author­i­ty except from God, and those that exist have been insti­tut­ed by God. Therefore he who resists what God has appoint­ed, and those who resist will incur judg­ment.… If you do wrong, be afraid, for [the author­i­ty] does not bear the sword in vain; he is the ser­vant of God to exe­cute his wrath on the wrong­do­er” (Romans 13: 1 – 4). So, accord­ing to the Bible, the author­i­ty to pun­ish, which pre­sum­ably includes the death penal­ty, comes from God.

But we need not appeal to a reli­gious jus­ti­fi­ca­tion for cap­i­tal pun­ish­ment. We can site the state’s role in dis­pens­ing jus­tice. Just as the state has the author­i­ty (and duty) to act just­ly in allo­cat­ing scarce resources, in meet­ing min­i­mal needs of its (deserv­ing) cit­i­zens, in defend­ing its cit­i­zens from vio­lence and crime, and in not wag­ing unjust wars; so too does it have the author­i­ty, flow­ing from its mis­sion to pro­mote jus­tice and the good of its peo­ple, to pun­ish the crim­i­nal. If the crim­i­nal, as one who has for­feit­ed a right to life, deserves to be exe­cut­ed, espe­cial­ly if it will like­ly deter would-be mur­der­ers, the state has a duty to exe­cute those con­vict­ed of first-degree murder.”

National Council of Synagogues and the Bishops’ Committee for Ecumenical and Interreligious Affairs of the National Conference of Catholic Bishops
Excerpts from ​“To End the Death Penalty: A Report of the National Jewish/​Catholic Consultation” (December, 1999)

“Some would argue that the death penal­ty is need­ed as a means of ret­ribu­tive jus­tice, to bal­ance out the crime with the pun­ish­ment. This reflects a nat­ur­al con­cern of soci­ety, and espe­cial­ly of vic­tims and their fam­i­lies. Yet we believe that we are called to seek a high­er road even while pun­ish­ing the guilty, for exam­ple through long and in some cas­es life-long incar­cer­a­tion, so that the heal­ing of all can ulti­mate­ly take place.

Some would argue that the death penal­ty will teach soci­ety at large the seri­ous­ness of crime. Yet we say that teach­ing peo­ple to respond to vio­lence with vio­lence will, again, only breed more violence.

The strongest argu­ment of all [in favor of the death penal­ty] is the deep pain and grief of the fam­i­lies of vic­tims, and their quite nat­ur­al desire to see pun­ish­ment met­ed out to those who have plunged them into such agony. Yet it is the clear teach­ing of our tra­di­tions that this pain and suf­fer­ing can­not be healed sim­ply through the ret­ri­bu­tion of cap­i­tal pun­ish­ment or by vengeance. It is a dif­fi­cult and long process of heal­ing which comes about through per­son­al growth and God’s grace. We agree that much more must be done by the reli­gious com­mu­ni­ty and by soci­ety at large to solace and care for the griev­ing fam­i­lies of the vic­tims of violent crime.

Recent state­ments of the Reform and Conservative move­ments in Judaism, and of the U.S. Catholic Conference sum up well the increas­ing­ly strong con­vic­tions shared by Jews and Catholics…:

‘Respect for all human life and oppo­si­tion to the vio­lence in our soci­ety are at the root of our long-stand­ing oppo­si­tion (as bish­ops) to the death penal­ty. We see the death penal­ty as per­pet­u­at­ing a cycle of vio­lence and pro­mot­ing a sense of vengeance in our cul­ture. As we said in Confronting the Culture of Violence: ​‘We can­not teach that killing is wrong by killing.’ We oppose cap­i­tal pun­ish­ment not just for what it does to those guilty of hor­ri­ble crimes, but for what it does to all of us as a soci­ety. Increasing reliance on the death penal­ty dimin­ish­es all of us and is a sign of grow­ing dis­re­spect for human life. We can­not over­come crime by sim­ply exe­cut­ing crim­i­nals, nor can we restore the lives of the inno­cent by end­ing the lives of those con­vict­ed of their mur­ders. The death penal­ty offers the trag­ic illu­sion that we can defend life by tak­ing life.‘1

We affirm that we came to these con­clu­sions because of our shared under­stand­ing of the sanc­ti­ty of human life. We have com­mit­ted our­selves to work togeth­er, and each with­in our own com­mu­ni­ties, toward end­ing the death penal­ty.”

Endnote
1. Statement of the Administrative Committee of the United States Catholic Conference, March 24, 1999.

The death penal­ty alone impos­es an irrev­o­ca­ble sen­tence. Once an inmate is exe­cut­ed, noth­ing can be done to make amends if a mis­take has been made. There is con­sid­er­able evi­dence that many mis­takes have been made in sen­tenc­ing peo­ple to death. Since 1973, over 180 peo­ple have been released from death row after evi­dence of their inno­cence emerged. During the same peri­od of time, over 1,500 peo­ple have been exe­cut­ed. Thus, for every 8.3 peo­ple exe­cut­ed, we have found one per­son on death row who nev­er should have been con­vict­ed. These sta­tis­tics rep­re­sent an intol­er­a­ble risk of exe­cut­ing the inno­cent. If an auto­mo­bile man­u­fac­tur­er oper­at­ed with sim­i­lar fail­ure rates, it would be run out of business.

Our cap­i­tal pun­ish­ment sys­tem is unre­li­able. A study by Columbia University Law School found that two thirds of all cap­i­tal tri­als con­tained seri­ous errors. When the cas­es were retried, over 80% of the defen­dants were not sen­tenced to death and 7% were completely acquitted.

Many of the releas­es of inno­cent defen­dants from death row came about as a result of fac­tors out­side of the jus­tice sys­tem. Recently, jour­nal­ism stu­dents in Illinois were assigned to inves­ti­gate the case of a man who was sched­uled to be exe­cut­ed, after the sys­tem of appeals had reject­ed his legal claims. The stu­dents dis­cov­ered that one wit­ness had lied at the orig­i­nal tri­al, and they were able to find anoth­er man, who con­fessed to the crime on video­tape and was lat­er con­vict­ed of the mur­der. The inno­cent man who was released was very for­tu­nate, but he was spared because of the infor­mal efforts of con­cerned cit­i­zens, not because of the justice system.

In oth­er cas­es, DNA test­ing has exon­er­at­ed death row inmates. Here, too, the jus­tice sys­tem had con­clud­ed that these defen­dants were guilty and deserv­ing of the death penal­ty. DNA test­ing became avail­able only in the ear­ly 1990s, due to advance­ments in sci­ence. If this test­ing had not been dis­cov­ered until ten years lat­er, many of these inmates would have been exe­cut­ed. And if DNA test­ing had been applied to ear­li­er cas­es where inmates were exe­cut­ed in the 1970s and 80s, the odds are high that it would have proven that some of them were inno­cent as well.

Society takes many risks in which inno­cent lives can be lost. We build bridges, know­ing that sta­tis­ti­cal­ly some work­ers will be killed dur­ing con­struc­tion; we take great pre­cau­tions to reduce the num­ber of unin­tend­ed fatal­i­ties. But wrong­ful exe­cu­tions are a pre­ventable risk. By sub­sti­tut­ing a sen­tence of life with­out parole, we meet soci­ety’s needs of pun­ish­ment and pro­tec­tion with­out run­ning the risk of an erro­neous and irrevocable punishment.

There is no proof that any inno­cent per­son has actu­al­ly been exe­cut­ed since increased safe­guards and appeals were added to our death penal­ty sys­tem in the 1970s. Even if such exe­cu­tions have occurred, they are very rare. Imprisoning inno­cent peo­ple is also wrong, but we can­not emp­ty the pris­ons because of that min­i­mal risk. If improve­ments are need­ed in the sys­tem of rep­re­sen­ta­tion, or in the use of sci­en­tif­ic evi­dence such as DNA test­ing, then those reforms should be insti­tut­ed. However, the need for reform is not a rea­son to abol­ish the death penalty.

Besides, many of the claims of inno­cence by those who have been released from death row are actu­al­ly based on legal tech­ni­cal­i­ties. Just because some­one’s con­vic­tion is over­turned years lat­er and the pros­e­cu­tor decides not to retry him, does not mean he is actually innocent.

If it can be shown that some­one is inno­cent, sure­ly a gov­er­nor would grant clemen­cy and spare the per­son. Hypothetical claims of inno­cence are usu­al­ly just delay­ing tac­tics to put off the exe­cu­tion as long as pos­si­ble. Given our thor­ough sys­tem of appeals through numer­ous state and fed­er­al courts, the exe­cu­tion of an inno­cent indi­vid­ual today is almost impos­si­ble. Even the the­o­ret­i­cal exe­cu­tion of an inno­cent per­son can be jus­ti­fied because the death penal­ty saves lives by deter­ring other killings.

Gerald Kogan, Former Florida Supreme Court Chief Justice
Excerpts from a speech giv­en in Orlando, Florida, October 23, 1999

“[T]here is no ques­tion in my mind, and I can tell you this hav­ing seen the dynam­ics of our crim­i­nal jus­tice sys­tem over the many years that I have been asso­ci­at­ed with it, [as] pros­e­cu­tor, defense attor­ney, tri­al judge and Supreme Court Justice, that con­vinces me that we cer­tain­ly have, in the past, exe­cut­ed those peo­ple who either did­n’t fit the cri­te­ria for exe­cu­tion in the State of Florida or who, in fact, were, fac­tu­al­ly, not guilty of the crime for which they have been executed.

“And you can make these state­ments when you under­stand the dynam­ics of the crim­i­nal jus­tice sys­tem, when you under­stand how the State makes deals with more cul­pa­ble defen­dants in a cap­i­tal case, offers them light sen­tences in exchange for their tes­ti­mo­ny against anoth­er par­tic­i­pant or, in some cas­es, in fact, gives them immu­ni­ty from pros­e­cu­tion so that they can secure their tes­ti­mo­ny; the use of jail­house con­fes­sions, like peo­ple who say, ​‘I was in the cell with so-and-so and they con­fessed to me,’ or using those par­tic­u­lar con­fes­sions, the valid­i­ty of which there has been great doubt. And yet, you see the uneven appli­ca­tion of the death penal­ty where, in many instances, those that are the most cul­pa­ble escape death and those that are the least cul­pa­ble are vic­tims of the death penal­ty. These things begin to weigh very heav­i­ly upon you. And under our sys­tem, this is the sys­tem we have. And that is, we are human beings admin­is­ter­ing an imperfect system.”

…

“And how about those peo­ple who are still sit­ting on death row today, who may be fac­tu­al­ly inno­cent but can­not prove their par­tic­u­lar case very sim­ply because there is no DNA evi­dence in their case that can be used to exon­er­ate them? Of course, in most cas­es, you’re not going to have that kind of DNA evi­dence, so there is no way and there is no hope for them to be saved from what may be one of the biggest mis­takes that our soci­ety can make.”

The entire speech by Justice Kogan is avail­able here.

Paul G. Cassell
Associate Professor of Law, University of Utah, College of Law, and for­mer law clerk to Chief Justice Warren E. Burger. Statement before the Committee on the Judiciary, United States House of Representatives, Subcommittee on Civil and Constitutional Rights Concerning Claims of Innocence in Capital Cases (July 23, 1993)

“Given the fal­li­bil­i­ty of human judg­ments, the pos­si­bil­i­ty exists that the use of cap­i­tal pun­ish­ment may result in the exe­cu­tion of an inno­cent per­son. The Senate Judiciary Committee has pre­vi­ous­ly found this risk to be ​‘min­i­mal,’ a view shared by numer­ous schol­ars. As Justice Powell has not­ed com­ment­ing on the numer­ous state cap­i­tal cas­es that have come before the Supreme Court, the ​‘unprece­dent­ed safe­guards’ already inher­ent in cap­i­tal sen­tenc­ing statutes ​‘ensure a degree of care in the impo­si­tion of the sen­tence of death that can only be described as unique.’”

…

“Our present sys­tem of cap­i­tal pun­ish­ment lim­its the ulti­mate penal­ty to cer­tain specif­i­cal­ly-defined crimes and even then, per­mit the penal­ty of death only when the jury finds that the aggra­vat­ing cir­cum­stances in the case out­weigh all mit­i­gat­ing cir­cum­stances. The sys­tem fur­ther pro­vides judi­cial review of cap­i­tal cas­es. Finally, before cap­i­tal sen­tences are car­ried out, the gov­er­nor or oth­er exec­u­tive offi­cial will review the sen­tence to insure that it is a just one, a deter­mi­na­tion that undoubt­ed­ly con­sid­ers the evi­dence of the con­demned defen­dan­t’s guilt. Once all of those deci­sion­mak­ers have agreed that a death sen­tence is appro­pri­ate, inno­cent lives would be lost from fail­ure to impose the sentence.”

…

“Capital sen­tences, when car­ried out, save inno­cent lives by per­ma­nent­ly inca­pac­i­tat­ing mur­der­ers. Some per­sons who com­mit cap­i­tal homi­cide will slay oth­er inno­cent per­sons if giv­en the oppor­tu­ni­ty to do so. The death penal­ty is the most effec­tive means of pre­vent­ing such killers from repeat­ing their crimes. The next most seri­ous penal­ty, life impris­on­ment with­out pos­si­bil­i­ty of parole, pre­vents mur­der­ers from com­mit­ting some crimes but does not pre­vent them from mur­der­ing in prison.”

…

“The mis­tak­en release of guilty mur­der­ers should be of far greater con­cern than the spec­u­la­tive and hereto­fore nonex­is­tent risk of the mis­tak­en exe­cu­tion of an innocent person.”

Full text can be found here.

In prac­tice, the death penal­ty does not sin­gle out the worst offend­ers. Rather, it selects an arbi­trary group based on such irra­tional fac­tors as the qual­i­ty of the defense coun­sel, the coun­ty in which the crime was com­mit­ted, or the race of the defen­dant or victim.

Almost all defen­dants fac­ing the death penal­ty can­not afford their own attor­ney. Hence, they are depen­dent on the qual­i­ty of the lawyers assigned by the state, many of whom lack expe­ri­ence in cap­i­tal cas­es or are so under­paid that they fail to inves­ti­gate the case prop­er­ly. A poor­ly rep­re­sent­ed defen­dant is much more like­ly to be con­vict­ed and giv­en a death sentence.

With respect to race, stud­ies have repeat­ed­ly shown that a death sen­tence is far more like­ly where a white per­son is mur­dered than where a Black per­son is mur­dered. The death penal­ty is racial­ly divi­sive because it appears to count white lives as more valu­able than Black lives. Since the death penal­ty was rein­stat­ed in 1976, 296 Black defen­dants have been exe­cut­ed for the mur­der of a white vic­tim, while only 31 white defen­dants have been exe­cut­ed for the mur­der of a Black vic­tim. Such racial dis­par­i­ties have exist­ed over the his­to­ry of the death penal­ty and appear to be largely intractable.

It is arbi­trary when some­one in one coun­ty or state receives the death penal­ty, but some­one who com­mits a com­pa­ra­ble crime in anoth­er coun­ty or state is giv­en a life sen­tence. Prosecutors have enor­mous dis­cre­tion about when to seek the death penal­ty and when to set­tle for a plea bar­gain. Often those who can only afford a min­i­mal defense are select­ed for the death penal­ty. Until race and oth­er arbi­trary fac­tors, like eco­nom­ics and geog­ra­phy, can be elim­i­nat­ed as a deter­mi­nant of who lives and who dies, the death penal­ty must not be used.

Discretion has always been an essen­tial part of our sys­tem of jus­tice. No one expects the pros­e­cu­tor to pur­sue every pos­si­ble offense or pun­ish­ment, nor do we expect the same sen­tence to be imposed just because two crimes appear sim­i­lar. Each crime is unique, both because the cir­cum­stances of each vic­tim are dif­fer­ent and because each defen­dant is dif­fer­ent. The U.S. Supreme Court has held that a manda­to­ry death penal­ty which applied to every­one con­vict­ed of first degree mur­der would be uncon­sti­tu­tion­al. Hence, we must give pros­e­cu­tors and juries some discretion.

In fact, more white peo­ple are exe­cut­ed in this coun­try than black peo­ple. And even if blacks are dis­pro­por­tion­ate­ly rep­re­sent­ed on death row, pro­por­tion­ate­ly blacks com­mit more mur­ders than whites. Moreover, the Supreme Court has reject­ed the use of sta­tis­ti­cal stud­ies which claim racial bias as the sole rea­son for over­turn­ing a death sentence.

Even if the death penal­ty pun­ish­es some while spar­ing oth­ers, it does not fol­low that every­one should be spared. The guilty should still be pun­ished appro­pri­ate­ly, even if some do escape prop­er pun­ish­ment unfair­ly. The death penal­ty should apply to killers of black peo­ple as well as to killers of whites. High paid, skill­ful lawyers should not be able to get some defen­dants off on tech­ni­cal­i­ties. The exis­tence of some sys­temic prob­lems is no rea­son to aban­don the whole death penalty system.

Reverend Jesse L. Jackson, Sr.
President and Chief Executive Officer, Rainbow/​PUSH Coalition, Inc. Excerpt from ​“Legal Lynching: Racism, Injustice & the Death Penalty,” (Marlowe & Company, 1996)

“Who receives the death penal­ty has less to do with the vio­lence of the crime than with the col­or of the crim­i­nal’s skin, or more often, the col­or of the vic­tim’s skin. Murder — always trag­ic — seems to be a more heinous and despi­ca­ble crime in some states than in oth­ers. Women who kill and who are killed are judged by dif­fer­ent stan­dards than are men who are mur­der­ers and victims.

The death penal­ty is essen­tial­ly an arbi­trary pun­ish­ment. There are no objec­tive rules or guide­lines for when a pros­e­cu­tor should seek the death penal­ty, when a jury should rec­om­mend it, and when a judge should give it. This lack of objec­tive, mea­sur­able stan­dards ensures that the appli­ca­tion of the death penal­ty will be dis­crim­i­na­to­ry against racial, gen­der, and ethnic groups.

The major­i­ty of Americans who sup­port the death penal­ty believe, or wish to believe, that legit­i­mate fac­tors such as the vio­lence and cru­el­ty with which the crime was com­mit­ted, a defen­dan­t’s cul­pa­bil­i­ty or his­to­ry of vio­lence, and the num­ber of vic­tims involved deter­mine who is sen­tenced to life in prison and who receives the ulti­mate pun­ish­ment. The num­bers, how­ev­er, tell a dif­fer­ent sto­ry. They con­firm the ter­ri­ble truth that bias and dis­crim­i­na­tion warp our nation’s judi­cial sys­tem at the very time it mat­ters most — in mat­ters of life and death. The fac­tors that deter­mine who will live and who will die — race, sex, and geog­ra­phy — are the very same ones that blind jus­tice was meant to ignore. This prej­u­di­cial dis­tri­b­u­tion should be a moral out­rage to every American.”

Justice Lewis Powell
United States Supreme Court Justice
excerpts from McCleskey v. Kemp, 481 U.S. 279 (1987)
(foot­notes and citations omitted)

(Mr. McCleskey, a black man, was con­vict­ed and sen­tenced to death in 1978 for killing a white police offi­cer while rob­bing a store. Mr. McCleskey appealed his con­vic­tion and death sen­tence, claim­ing racial dis­crim­i­na­tion in the appli­ca­tion of Georgia’s death penal­ty. He pre­sent­ed sta­tis­ti­cal analy­sis show­ing a pat­tern of sen­tenc­ing dis­par­i­ties based pri­mar­i­ly on the race of the vic­tim. The analy­sis indi­cat­ed that black defen­dants who killed white vic­tims had the great­est like­li­hood of receiv­ing the death penal­ty. Writing the major­i­ty opin­ion for the Supreme Court, Justice Powell held that sta­tis­ti­cal stud­ies on race by them­selves were an insuf­fi­cient basis for over­turn­ing the death penalty.)

“[T]he claim that [t]his sen­tence rests on the irrel­e­vant fac­tor of race eas­i­ly could be extend­ed to apply to claims based on unex­plained dis­crep­an­cies that cor­re­late to mem­ber­ship in oth­er minor­i­ty groups, and even to gen­der. Similarly, since [this] claim relates to the race of his vic­tim, oth­er claims could apply with equal­ly log­i­cal force to sta­tis­ti­cal dis­par­i­ties that cor­re­late with the race or sex of oth­er actors in the crim­i­nal jus­tice sys­tem, such as defense attor­neys or judges. Also, there is no log­i­cal rea­son that such a claim need be lim­it­ed to racial or sex­u­al bias. If arbi­trary and capri­cious pun­ish­ment is the touch­stone under the Eighth Amendment, such a claim could — at least in the­o­ry — be based upon any arbi­trary vari­able, such as the defen­dan­t’s facial char­ac­ter­is­tics, or the phys­i­cal attrac­tive­ness of the defen­dant or the vic­tim, that some sta­tis­ti­cal study indi­cates may be influ­en­tial in jury deci­sion mak­ing. As these exam­ples illus­trate, there is no lim­it­ing prin­ci­ple to the type of chal­lenge brought by McCleskey. The Constitution does not require that a State elim­i­nate any demon­stra­ble dis­par­i­ty that cor­re­lates with a poten­tial­ly irrel­e­vant fac­tor in order to oper­ate a crim­i­nal jus­tice sys­tem that includes cap­i­tal pun­ish­ment. As we have stat­ed specif­i­cal­ly in the con­text of cap­i­tal pun­ish­ment, the Constitution does not ​‘plac[e] total­ly unre­al­is­tic con­di­tions on its use.’ (Gregg v. Georgia)”

The entire deci­sion can be found here.