Who Shall Die

Like the pain from a chronic knee injury, which subsides for brief periods of time, tantalizing one with the blissful thought that perhaps this time it is gone for good, and then abruptly and rudely reasserts itself, capital punishment is back in the news.

In the space of two weeks, the state of Virginia lethally injected John Allen Muhammad, the notorious D.C. sniper whose 2002 random attacks terrorized the region and left ten dead, and electrocuted 60-year-old Larry Bill Elliott, convicted for the 2001 shooting deaths of 25-year-old Dana Thrall and 30-year-old Robert Finch -- ostensibly to win the love of a former escort and stripper, Rebecca Gragg, with whom Finch was involved in a bitter custody dispute.

Since 1976, when the Supreme Court overturned its 1972 ruling and declared the death penalty constitutional, 1181 felons have been executed. Texas, Virginia, and Oklahoma lead the thirty-five states which allow the death penalty with 444, 105, and 91 executions, respectively.

Having researched capital punishment several years ago and concluded that it is a flawed policy, vastly misunderstood and replete with inconsistencies and inequities, I had naively assumed that most clear-thinking individuals were similarly enlightened, and that, as a subject of controversy, it was largely passe.

Thus I was somewhat surprised when three friends voiced their enthusiastic approbation of John Allen Muhammad's execution. Of course, it's difficult to deny that, if anyone did, Mr. Muhammad deserved his fate, not only for engaging in an impersonal, cold-blooded rampage, but also for sparking universal fear and trembling in the consciousness of so many millions, in spite of the statistical improbability of any one of them becoming a casualty.

When I expressed my own reservations about the death penalty, two of my friends even confronted me with the same vexatious question: "Suppose it were one of your own children he had murdered. What would you say then?" One even vowed to seek her own violent retribution should the state fail to do its duty in response to her son's hypothetical slaying -- a necessary undertaking if the heinous crime happened to occur in one of the fifteen non-death-penalty states, such as West Virginia.

For death-penalty opponents, this argument -- a loved one as victim -- along with the inescapable challenge "What would you do in the case of Adolf Hitler?" -- seems to be the most difficult to refute. Who can say how such a tragedy would impact his so-called rational thinking? I could only console and fortify myself with my understanding of the death penalty's extremely problematic nature and with the realization that many persons lose family members at the hands of others who are never brought to justice, much less executed.

Such is the capital punishment's persistent conundrum -- and one of the strongest reasons for abolishing it altogether. While Gallup's most recent poll shows that 65% of Americans support the death penalty, they would be hard-pressed to characterize the practice as other than moribund, at least in most parts of the country. While 1181 executions since 1976 may seem like a large number, it's only 35 a year, over half of which are concentrated in three states. In fact, California and Pennsylvania have 678 and 226 inmates on death row, respectively, but have executed only 13 and 3 in over thirty years.

The disconnect here is that while 100 million Americans -- including my three friends -- when asked, favor the death penalty as a matter of policy, they are attentive only to the immediate case at hand and content to ignore or dismiss the host of murderers locked away in prisons, their thirst for blood apparently satiated by the meager thirty-five or so sacrificed annually at the altar of principle.

Could this be because their stance is grounded in emotions rather than intellectually based? Fifty per cent of those who favor capital punishment quote a Biblical verse as their reason: an eye for an eye, a prescription which, at first glance, expresses anger and passion, demanding that vengeful action be taken against violent criminals. In fact, a more analytical reading of the passage from which the phrase is excerpted suggests that its intent as a measure of justice is to apportion punishment according to the seriousness of the offense, to limit revenge to only an eye for an eye, to only one life for another, since it references an age in which it was not uncommon for wrathful families or clans to attack entire communities for wrongdoing committed against one of their members.

Further examination of the text might lead one to reject death as the appropriate punishment for murder altogether, since the evolution of modern society has deemed archaic a Biblical moral code that prescribed that sentence for such crimes as sorcery, bestiality, adultery, incest, homosexuality, and prostitution.

As in the forgoing analysis, the charge to death penalty abolitionists is to introduce reason into the discussion, to counteract the emotional, kneejerk reaction that erupts in response to the question: Do you favor or oppose the death penalty for persons convicted of murder?

Consider the following facts.

A sixty-five per cent approval rating for the death penalty does not translate into equivalent sentencing in actual capital cases. Capital juries, which must be comprised of persons willing to apply the death penalty, return the sentence in only about a third of trials in which the prosecutor seeks it.

Could the unwillingness of juries to impose death indicate an ambivalence that is not reflected in polling? Justice William Brennan thought so when he wrote: "When an unusually severe punishment is authorized for wide-scale application but, because of society's refusal, inflicted in only a few instances, the inference is that there is a deep-seated reluctance to inflict it. Indeed, the likelihood is that the punishment is tolerated only because of its disuse."

The Susan Smith case strikingly illustrates how enthusiasm for the death penalty can evaporate when nominal supporters actually confront a human being over whom they have the power of life and death. According to a Newsweek poll, at the end of Smith's trial, after she had been found guilty of cruelly drowning her two sons in a locked car, 63 per cent of respondents said she should be executed. Yet the jury voted unanimously to sentence her to life imprisonment -- strong evidence that it's much easier to demand execution in the abstract, from a safe distance.

One reason juries retreat from the death penalty is that they have options; they can recommend alternative sentences in capital murder cases, such as life imprisonment. In fact, support for the death penalty falls substantially -- from 65% to 47% -- when people are presented the alternative of life imprisonment without parole, and to 32% when the life sentence includes restitution -- the stipulation that a convicted murderer's prison earnings go into a victim's assistance fund.

The death penalty enjoys majority approval because it is a symbol of severe punishment for murder. But poll numbers suggest that, beneath the surface, what citizens really want is assurance that murderers will not be allowed to walk the streets again, and that the protection of society and compensation to victims is as important to them as revenge and closure.

While only 13% of respondents identify deterrence -- the theory that the threat of execution will restrain potential murderers -- as the primary reason for their support of capital punishment, proponents of the death penalty can not ignore this important fact: not a single investigation to date has produced any evidence that capital punishment -- or life imprisonment for that matter -- deters capital murders.

When comparisons are made between states with the death penalty and states without, the majority of death-penalty-states show murder rates higher than non-death-penalty states -- by as much as 40% in the years 2003 to 2007. In 2007, the murder rate in states with the death penalty averaged 5.8 per 100,000; in states without, it averaged 4.1 per 100,000.

And the numbers don't change when researchers factor in characteristics known to influence murder rates, such as unemployment, probability of arrest and conviction, and police force expenditures; when they measure the effects over time of death penalty abolition and restoration; when they analyze the rate of police killings -- which is punishable by death in every state which permits capital punishment; and when they test the results of swift executions versus delayed ones.

And why would they change, since it is doubtful that potential killers dispassionately weigh the costs and benefits of the deed they are about to commit. Most murders -- at least 90% -- are crimes of passion, and occur under the blinding influence of rage, hatred, jealousy, or fear. The threat of the death chamber -- or life imprisonment -- is unlikely to deter the mentally-disturbed or alcohol-intoxicated killer, the young gang member caught up in his macho sub-culture, the convenience store intruder whose robbery goes suddenly awry, or the unbalanced spouse who lashes out spontaneously in the midst of a domestic altercation.

In fact, implementing the death penalty may have a perverse, unintended consequence: brutalization. History shows that public executions of the past not only failed to deter; they incited drunkenness, revelry, fighting, and rioting. Today, prison wardens report an increase in disciplinary problems and violence in the days prior to and following an execution. Why else are executions now held in the middle of the night, if not to avoid sending a most distasteful message: it is acceptable to take the life of someone who has committed an egregious wrong against you.

One fundamental problem of the death penalty that even its staunchest proponents cannot deny is its arbitrary, capricious, and subjective imposition. Fifty per cent of those surveyed in recent polls admit that the death penalty is not carried out fairly, that blacks are more likely to be sentenced to death than whites, and poor defendants more likely than rich defendants.

Statistics confirm these assumptions. Roughly 16,000 murders are committed in the United States each year; 1600 convicted murderers are eligible for the death penalty; and 120 are sentenced to death -- not necessarily because their crimes are the most despicable, but because they are people of low social or minority status with limited resources. Ninety per cent are financially unable to hire attorneys to represent them at their trials.

Compare the cases of O.J. Simpson and Ernest Wayne Jones.

Simpson, millionaire celebrity, football hero, television pitch man, and movie star, was accused of murdering his former wife, Nicole Brown Simpson, and her friend, Ronald Goldman, in 1995. In spite of the multiple victims, the vicious nature of the crime, and similar past incidents, the Los Angeles District Attorney's Office chose not to seek the death penalty, which resulted in the selection of a more lenient jury. The defense team included eleven lawyers, numerous private investigators, a handful of jury consultants, and a host of highly-paid expert witnesses who challenged every claim made by the prosecution and presented alternative interpretations of the evidence. The preliminary hearing lasted four months, the trial nine, producing 45,000 pages of testimony and costing the defense seven million dollars. The verdict was "not guilty."

Ernest Wayne Jones's trial took place down the hall from Simpson's. He stood accused of raping and stabbing to death his girl friend's mother. Jones was mentally disturbed and had a history of violence, having served six years in prison for a rape conviction. He had a public defender. The prosecution's DNA evidence was presented in a day by a witness who was never cross-examined, nor was any defense expert available to raise suspicion about contamination or bias. In a trial that lasted sixteen days, including a four-day penalty trial, Jones was found guilty and sentenced to death.

Unfortunately, in too many cases, money and competent legal representation make the difference between life and death.

Whether represented by a state-sponsored public defender or a court-appointed private attorney, indigent defendants are seriously disadvantaged. Whereas prosecutors have unlimited access to investigative assistance, defendants must file motions to fund investigations, to obtain laboratory analysis of physical evidence, and to hire psychologists and expert witnesses. Court-appointed lawyers are often grossly underpaid, inexperienced, and unfamiliar with the relevant law. Death sentences have been imposed when a defense attorney argued with co-counsel, referred to a client by a racial slur, examined a witness during whose testimony he was absent, slept during the trial, and became intoxicated.

Further impacting the unfairness of the capital justice system is a racial bias which operates against both blacks and whites. Studies indicate that an influential factor in capital murder indictments and death penalty sentencing is the victim's race. Murderers of whites are twice as likely to be charged with a capital crime than murderers of blacks, and four times as likely if the accused is black. Whether white or black, defendants convicted of killing whites are more likely to receive a death sentence than if the victim is black, and twelve times more likely if the perpetrator is black.

The per cent of blacks now on death row (42%) is dramatically disproportionate to their percentage of the total U.S. population (13%).

The prejudicial effects of race are most pronounced in the Southern states of Texas, Georgia, Louisiana, and Florida.

Under a system in which death is determined more by a throw of the dice than by the scales of justice, is it not conceivable that innocent persons might be condemned and executed? Hugo Badeau of Tufts University and Michael Radelet of the University of Florida have identified 416 people wrongfully convicted of murder and sentenced to death between 1900 and 1991. All were imprisoned; twelve were executed.

In 1987, a 52-year-old black man, Walter McMillan, was arrested in Alabama for the murder of 18-year-old Rhonda Morrison, eight months after the fact. McMillan claimed he was targeted because of his race, his involvement with a white woman, and his son's marriage to a white woman. Despite being placed at a fish fry on the day of the murder by twelve friends and relatives, McMillan was convicted on the testimony of three witnesses who received favors from the state and later admitted perjury. After Judge Robert E. Lee Key overruled the jury's sentence of life imprisonment without parole and changed it to death -- referring to "the brutal killing of young woman in the first flower of adulthood" -- new attorneys, not paid by the state, took over the case. When they found that the prosecution had illegally withheld evidence which would have proved McMillan's innocence, he was acquitted and released -- in 1993, after spending six years on death row.

In the summer of 1984, a nine-year-old girl was tortured, sodomized, and murdered near her home in Baltimore County, Maryland. Twenty-three-year-old crab fisherman Kurt Bloodsworth was convicted and sentenced to death, principally on the testimony of three witnesses who identified him as resembling a composite picture made of the attacker. Police ignored another man, David Rehill, who showed up at a mental health clinic several hours after the murder with scratches on his face and told a therapist "he was in trouble with a little girl."

Bloodsworth spent two years on death row before an appeal on a technicality resulted in a new trial. Although the state knew about Rehill, that information was not released to defense attorneys until days before the second trial. They did not have time to investigate and failed to ask for a postponement. The second jury never learned there was a potential second suspect and again convicted Bloodsworth, sentencing him to life imprisonment.

Seven years later, when a new attorney discovered testable material on the victim's underwear, two DNA tests revealed that semen stains could not have come from Bloodsworth. Released by court order, he became the first person to be exonerated from prison by use of DNA evidence, after serving nine years.

On March 18, 2009, in signing a bill to repeal New Mexico's death penalty statute, Governor Bill Richardson stated: "The system is inherently defective. DNA testing has proven that innocent people have been put to death all across the country . . . The sad truth is that the wrong person can still be convicted in this day and age."

Finally, contrary to what most Americans believe, that it is cheaper to execute a condemned criminal than lock him behind bars for life, the death penalty is far more costly than life imprisonment.

To be sure, the cost of life without parole is very high -- $25,000 per prisoner per year, or $750,000 to $1,000,000 over the life expectancy of a murderer incarcerated for thirty to forty years. These costs could be reduced if prisoners serving life sentences worked while in prison.

But the cost of capital punishment is far higher.

California estimates that it costs $90,000 more a year to house one inmate on death row, where each person must have a private cell and extra guards, than in the general prison population. Six hundred and seventy inmates on death row are costing the state an additional $60 million per year.

Capital trials cost considerably more than other criminal trials.

Maryland estimates that the average cost to taxpayers for reaching a single death verdict, including investigation, trial, appeals, and incarceration, is $3 million -- $1.9 million more than the cost of a non-death-penalty case. A 2008 study examined 162 capital cases that were prosecuted between 1978 and 1999, and found that those cases cost $186 million more than they would have had the death penalty not existed, which equates to $37.2 million for each of the five executions performed during that period.

In 2005, New Jersey concluded that since 1983 the state's death penalty has cost taxpayers $253 million more than would have been incurred had the state utilized a sentence of life without parole instead of death. Since 1982, there have been 197 capital trials in New Jersey, 60 death sentences, of which 50 have been overturned, and zero executions.

The most comprehensive study in the country found in 1993 that the death penalty costs North Carolina $2.16 million more per execution than a non-death-penalty murder case with a sentence of life imprisonment.

In spite of a report that showed that reinstatement of the death penalty would cost the state of New York $118 million, the Governor of New York fulfilled a campaign promise and made it law in 1995. The actual cost has now reached $160 million, $23 million for each person sentenced to death, with no executions in sight.

Why is the death penalty so expensive?

Almost all persons facing the death penalty cannot afford their own attorney. The state must assign them two public defenders and pay prosecution costs as well.

Since capital cases are far more complicated than non-capital cases, experts are needed to evaluate forensic evidence and the mental health and social history of the accused.

Because of the death penalty question, jury selection is much more time-consuming and expensive.

Trials last longer, requiring jury, court personnel, and attorney compensation. To minimize mistakes, those convicted are entitled to a series of appeals, at taxpayers' expense.

Yet, as this complex process plays itself out, consuming resources and straining courts and prisons, of those who do receive the death penalty, only one in eleven -- thirty-five a year -- is ever executed.

The true price of the death penalty must also be measured against its opportunity costs, as state officials forgo the funding of crime prevention, education, mental health treatment, victim services, and drug rehabilitation, in order to pursue capital convictions.

But, in the final analysis, abolishing the death penalty in the United States -- the only Western democracy where it is still legal, and the one with the highest crime rate -- requires that the American people be persuaded that government executions are not only financially costly; they are morally costly.

The trumpet of morality is sounded loud and clear these days when abortion, homosexuality, and the sexual peccadilloes of governors and congressmen invade the public arena -- but how often do the arbiters of righteousness denounce a policy -- capital punishment -- which contradicts one of society's most sacred values: the inviolability of human life?

To those who claim that the Bible authorizes, even prescribes, executions, I say: Mosaic law and later rabbinic traditions established procedural requirements so extensive and standards of proof so unreachable that, as a matter of practice, death was rarely imposed.

To those who declare that murderers have forfeited their right to life and must be paid in kind, I say: if killing is morally wrong, it is wrong for both an individual and the state -- except in the extreme necessary cases of self-defense, imminent danger, and the protection of society. I say: imprison these criminals for life, without parole, rather than sink to their level, deliver one cruel act for another, and slay them as they slew their victims.

To those who profess a pious morality and allege some abstract benefits of capital punishment, I say: morality can only be assessed in practice. And what I see is a deeply-flawed system in which the innocent are convicted, race and economics determine who shall live and who shall die, executions have no deterrent value, and funds are squandered that could be employed more productively.

To those who are incensed and appalled by a horrible crime, I say: anger does not outweigh all other considerations; justice must take precedence over revenge; and, in spite of the intensity of their feelings, there is no guarantee that punishment will be meted out fairly or rationally.

To those who promote retribution to comfort and gratify the victim's family, I say: his perpetrator's demise will not restore a loved one to life; not all survivors seek a vengeful execution; less than one per cent of murderers end up in the death chamber; and executions often bestow a disturbing celebrity status on the condemned and divert attention from the victim.

And finally, to those who question why they should even be concerned about a policy which has no impact upon them personally and which a majority of citizens support, I say: a human life is at stake, and taking it offers no tangible or spiritual benefits to society.

It's time to codify this country's de facto moratorium on death sentences and executions, both of which have declined 60% since 2000. It's time to act upon the recommendations of police chiefs and criminologists nationwide who have stated on the record that the death penalty does not reduce the number of murders and that it is one of the most inefficient uses of taxpayer money in fighting crime. It's time to redirect that wasted money towards programs that could make society safer. It's time to assure ourselves that never again will an innocent person be put to death at the hands of the state. It's time to abolish capital punishment.