Stone Age Rituals in Modern Society: Let's Move On

The death penalty is difficult justify in any modern civilized society. Forget the obvious left-wing and right wing divide; the issue is greater than partisan politics. A sober evaluation of the costs and benefits of state-sanctioned death clearly demonstrates that the death penalty is not viable.

Let's look at the basics. The rationale for imprisoning a convicted criminal is threefold: to protect society from future harm, to deter other would-be criminals and to punish the offender. All three can be accomplished without putting prisoners to death. Nothing derived from these three purposes of incarceration can justify killing an inmate when compared to a life sentence with no possibility of parole. Revenge is not a motivation sufficiently sound for society to justify the accidental killing those wrongly convicted.

The penalty of death is too permanent to account for inevitable errors or willful misconduct on the part of police, judges, or prosecutors. As with all human institutions, the criminal justice system suffers in various degrees from corruption, incompetence, or malfeasance. Proof lies in the fact that 312 people previously convicted have been exonerated by DNA evidence; that the system makes mistakes is beyond dispute. Even the most ardent supporter of the death penalty would agree that, in some cases, innocent people are convicted, and the guilty walk free. Given that stark reality, the real danger of executing an innocent person is greater than the societal benefit derived from putting a guilty prisoner to death, particularly when reasonable alternatives exist.

Advances in DNA testing have proved that in the last 10 years at least 140 prisoners in the United States, innocent of the crime for which they have been convicted, have been sentenced to death. Dennis Williams and Verneal Jimerson spent 18 years on death row in Illinois for a crime they did not commit. Kirk Bloodsworth wasted nine years on death row as a child killer while the murderer roamed free. There are 140 other known examples, and these are the "lucky" ones who were eventually freed before execution.

Others were not so lucky. Carlos DeLuna was executed in Texas in 1989, but evidence later called into question his guilt. This story is exposed in depressing detail in the excellent book by Professor James Liebman at Columbia University, "Anatomy of a Wrongful Execution." Ruben Cantu was executed, also in Texas, in 1993, later exonerated (to the extent possible in such circumstances) by an investigative series from the Houston Chronicle. There are at least 10 cases of innocent men being executed by the state; and given that few of the total executions have been revisited the number is likely much higher. With wrongful executions, not only do the wrong men get killed, but the real killer remains at large. A double hit to society. Let's be clear here: do not make the mistake of confusing opposition to capital punishment with being "weak on crime" or the consequence of liberal bias. What could possibly be weaker on crime than letting a killer roam free?

The distance between the state killing an innocent man and a criminal committing murder is difficult to resolve even with a powerful microscope. When the state executes the innocent, we all become the murderers we seek to punish. That is justification enough to end the practice, but there are other compelling reasons. The most obvious is the constitutional prohibition against cruel and unusual punishment. Up until now, the Court has taken the side that the Eight Amendment does not per se prohibit capital punishment. But societies advance and evolve; we no longer have spittoons, or throw trash out of our cars, or smoke in public buildings, or collectively believe it acceptable to discriminate on the basis of race, color, creed or sexual orientation. We need to evolve our thinking on capital punishment as we have with many other practices once considered perfectly acceptable.

Like most words in our founding document, the ideas about the death penalty are open to interpretation; and indeed, the Supreme Court justices have over time modified and refined their interpretation of what constitutes such prohibited punishment. We need to continue that evolution of thought. A compelling need to reevaluate is the recent execution of Dennis McGuire in Ohio; he appeared to visibly suffer during the 25 minutes that elapsed between the initial injection and his death. Few would argue that this was not cruel; and cruel is expressly prohibited.

The Court's history demonstrates significant discomfort with capital punishment, with the justices placing ever greater restrictions on the practice. The big criterion is that the punishment has to be commensurate with the crime, with a relatively elaborate but porous means of making that determination. But the Court continued to further exclude from capital punishment more crimes previously covered: the crime of raping an adult woman (Coker vs. Georgia 1977); in the case of the mentally retarded (Atkins v. Virginia 2002); and for persons under 18 at the time the crime was committed (Roper v. Simmons 2005).

Plenty of justices have gone from supporting the death penalty to opposing it, includingJohn Paul Stevens, Lewis Powell, Harry Blackmun; but none have gone the other way, once opposing and then supporting the death penalty. Evolution of thought always leads away from capital punishment.

The rest of the world is ahead of the United States in this evolution. The U.S. is the only G7 country still to execute people; we are in the company of China, Iran, North Korea and Yemen as among those countries that still do. That alone should give us pause; these are not generally the company we seek.

Let us admit that the time for capital punishment is over. Proponents can offer no compelling reason to continue the practice. Every conceivable purpose of executing a prisoner can be achieved by other means, all of which can be reversed in the case of wrongful conviction. Opponents of capital punishment have history on their side in the long march toward human decency and dignity, expanding with each epoch since the dawn of the Renaissance. We are not the brutal societies of past, storming castles and gutting our enemies. We no longer throw chamber pots out back alleys at night. We do not celebrate beheadings in central squares, or stone prisoners to death. All of those practices were considered normal and acceptable -- until society moved on. The time has come to relegate capital punishment to that pantheon of past practices now considered barbaric. Capital punishment accomplishes nothing. We do not need the death penalty; we do not benefit from it; we are diminished by it; we are better than that.

Originally posted on the Huffington Post. Posted here with the kind permission of the author.