American Correctional Association
Annual Conference - Nashville, Tennessee
The Death Penalty Today
Richard C. Dieter
August 14, 2003
I want to thank the American Correctional Association for the invitation to speak at this conference. It is an honor to be here.
Some people may have the mistaken notion that challenging the death penalty before members of this organization would be a difficult task. But I am aware of the long and proud tradition of the ACA with regard to the treatment of inmates in our correctional facilities. In that tradition, corrections are about service to society, to all its members, including those who are incarcerated. The death penalty is an expression of a failure in that process. It proclaims that, for some people, we just have to give up on the notion of change or respect; we must expel them forever from the human community, and end their life, with all that such a drastic step implies.
The tradition of the correctional community, it seems to me, is a very different one, and it is contained in the Preamble to the ACA’s founding Principles:
“The treatment of criminals by society is for the protection of society. But since such treatment is directed to the criminal rather than the crime, its great object should be his moral regeneration. The state has not discharged its whole duty to the criminal when it has punished him, nor even when it has reformed him. Having raised him up, it has further duty to aid in holding him up.”
The death penalty is the pole opposite of that approach. Once a person has been executed, there is no more “raising him up,” nor “holding him up.” The death penalty is not a part of the correctional system. I would submit that it is much more a part of the political system.
Who Receives the Death Penalty?
I am very aware that many people believe the death penalty is necessary: that there are some criminals who are just so terrible, so dangerous, so irredeemable that their execution is the only way of dealing with them. Who are the people we subject to capital punishment? Are they really the “worst of the worst,” far more threatening and unmanageable than anyone else in our prison system today? The evidence does not even remotely support that contention.
There are too many murders in this country, but the death penalty is not designed to address that problem. Relatively few people who commit murder are ever sentenced to death, and even fewer are executed—considerably less than 1% who murder are executed. Who are in this select group?
In over 80% of the cases of those executed in this country, the victim was white, even though blacks are victims in 50% of the murders in the U.S.
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What does that say to society? It says that, when it comes to the death penalty, white lives are more valuable than black lives.
To begin with, those who receive the death penalty are far more likely to have murdered a white person than a black person. In over 80% of the cases of those executed in this country, the victim was white, even though blacks are victims in 50% of the murders in the U.S. Why do the lives of those victims not merit the death penalty? In study after study, many reviewed by the U.S. General Accounting Office, the consistent conclusion was that the race of the victim is a determining factor in who receives the death penalty.
What does that say to society? It says that, when it comes to the death penalty, white lives are more valuable than black lives. It is not necessarily the worst criminals who are executed under the death penalty. Race plays a decisive role—and we should not be executing anybody under such a system.
Another factor that plays a key role in deciding who lives and who dies is geography. In our system, a local prosecutor decides whether to seek a death sentence in a particular case. Some prosecutors pursue it in almost every eligible murder, some never pursue it. You need only compare the death penalty in Houston, Texas with Austin, Texas, or compare Philadelphia with Pittsburgh to see the difference that geography makes. Which side of the street you commit your crime on makes a critical difference in whether you will receive the death penalty.
Geography has other effects as well. Where are the executions carried out in the U.S.? Earlier in the 20th century, New York was a major death penalty state and executions occurred in all regions of the country. Today, close to 90% of the executions occur in just one of the four regions of the country – the South. Over half the executions this year have been in just 2 states: Texas and Oklahoma. Executions are not a national phenomenon in which only the most notorious offenders are selected. Instead, they are almost exclusively a southern practice – and that is an arbitrary and unacceptable system, even for those who support capital punishment.
One might ask: how has the South fared for all its executions? Given the risks of the death penalty, the divisiveness it causes, and its tremendous costs, one might expect that at least it makes those areas that use it a safer place. But looking at the statistics, the opposite is true: the South is consistently the region of the country with the highest murder rate. Last year, it was the only jurisdiction with a murder rate above the national average.
States that do not use the death penalty are doing far better when it comes to preventing murder. The northeast has carried out less than 1% of the executions in the country since the death penalty was reinstated in 1976. It is the region with consistently the lowest murder rate. And the gap between the murder rate in death penalty states and that in non-death penalty states has been growing in the past decade.
Economics is also an important factor in determining who gets the death penalty and who is spared. Almost everyone on death row could not afford his own lawyer at trial. Over half of those on death row did not complete high school. As a result, they enter a lottery in which some defendants receive decent court-appointed representation, while others get lawyers who sleep through parts of the trial, who arrive in the courtroom after a few stiff drinks, or who have never handled a capital case before. Some of these lawyers you would not want representing you in traffic court.
Some Are Innocent
The most disturbing fact about who gets sentenced to death in America is that some of those people are innocent. Since the death penalty was reinstated, over 100 death row inmates have had their convictions overturned and have been freed. Over half of these reversals have occurred since 1990; 9 more inmates have been freed in 2003 alone. This is not a problem that is going away—our system is human and fallible.
Mistakes can happen anywhere in the criminal justice system, but with the death penalty we bury our mistakes. Once someone has been executed, it is too late for the courts to make things right. And with so many mistakes revealed in recent years, we should not be executing anyone. If this were an assembly line, and it produced defective products that were endangering people’s lives, we would close that factory; we would recall all those products.
Since this conference is occurring just before September, I am reminded of the story of Anthony Porter. Porter was scheduled to be executed in September 1998 in Illinois. His lawyers had one last avenue of appeal. Porter was mentally retarded and his attorneys successfully asked the judge for a hearing to determine whether he was competent enough to be executed. With this fortuitous stay of execution, there was an opportunity for a journalism class at Northwestern University to take Porter’s case as an investigative exercise.
The most disturbing fact about who gets sentenced to death in America is that some of those people are innocent. Since the death penalty was reinstated, over 100 death row inmates have had their convictions overturned and have been freed.
The students assigned to Porter’s case tried to re-enact the scene of the crime, but the description from the trial would not match the real scene. They next contacted one of the witnesses. Amazingly, she admitted that she had lied about Porter at his trial. Moreover, she led the students to the actual killer, who eventually confessed to the crime on videotape. Porter was freed from death row in Illinois, walking out into the sunshine and the arms of the journalism students. Not long after, a moratorium was declared on all executions in Illinois.
It is a wonderful story, but it so easily could have ended differently. If Anthony Porter had been of normal intelligence, he would have been executed on schedule. If his stay had occurred in November, his case might never have been investigated by any students. If the students had not cut other classes to pursue Porter’s case, they might never have found the witness who exposed the truth. This is not an example of the system working well. And many of the other exonerations from death row have also been purely fortuitous.
Costs of the Death Penalty
If millions of dollars are spent on the death penalty, then that money is not available for more police, or better lighting in crime areas, or for corrections.
Compared to the costs of risking an innocent life, the financial costs of the death penalty are of less importance. But society only has a limited amount of money to spend on safety. If millions of dollars are spent on the death penalty, then that money is not available for more police, or better lighting in crime areas, or for corrections. The death penalty is spending millions and millions of taxpayer dollars with very little to show for it. California, for example, has over 600 people on death row; they spend approximately $100 million per year on the death penalty beyond the ordinary costs of the criminal justice system. The state averages less than one execution per year—that amounts to $100 million for one execution! It is absurd. And not one penny spent on the death penalty goes toward corrections, where it might do some good.
What About the Victims?
But what about the victims? Even if the death penalty is unfairly administered, and makes too many mistakes, and even if it does not make society safer and costs hundreds of millions of dollars, at least it serves the victims of crime.
Today, many victims’ families are turning away from the death penalty. For one thing, the death penalty produces division in the victims’ community and disappointment for 99% of the families involved. Since less than 1% of those who commit murder are ever executed, the families in the rest of the cases may feel cheated that their loved one was somehow short changed. And even where the death penalty is “the reward,” it will only occur after 10 long years of uncertainty before an execution is carried out. Most likely, the case will be overturned at least once, it will be tried again, and in many instances a different sentence will result. We should not be putting victims through such a roller coaster of unpredictability. They should know right from the start that an execution is one of the least likely outcomes in their case.
The death penalty is literally falling apart at the seams. Judging by the 50% decline in death sentences, by the growing rejection of this punishment around the world, and by the decreasing support even in this country, it is likely that its days are numbered. I believe that we are seeing a trend in society to put its trust in the correctional system that is already keeping society safe from over 99% of violent convicted criminals.
Conclusion
The death penalty is literally falling apart at the seams. Judging by the 50% decline in death sentences, by the growing rejection of this punishment around the world, and by the decreasing support even in this country, it is likely that its days are numbered. I believe that we are seeing a trend in society to put its trust in the correctional system that is already keeping society safe from over 99% of violent convicted criminals. I believe the correctional system would do a much better job with the people who are currently sentenced to death. It would not be satisfied that it has “discharged its whole duty when it has punished” but “having raised him up,” it would meet its “further duty to aid in holding him up,” regardless of how terrible the crime. Of one thing I am sure: the death penalty system has been tried and it has failed.
THANK YOU.
