Thursday, December 17, 2009

The Broken Machinery of Death: My Case Against Capital Punishment

In modern society, the principle that under-girds the use of capital punishment is the same as in ancient history, while the methods and approaches have changed. This underlying principle is a dysfunctional one that carries with it brutalizing implications for societies within which it is employed, as any system based on retaliation and vengeance will invariably do. Such a system places emphasis and focus solely on the level of the individual and disregards the societal influences that affected the individual in question. In other words, it drags the individual out of any orienting context. In keeping with this lack of contextual basis, the dysfunctional nature of the death penalty is reflected in the unreliability and ineffectiveness characteristic of modern methodologies associated with capital punishment. Capital punishment is ineffective in reducing crime and is unjust by the standards of the U.S. Constitution because the system facilitates an increased possibility of wrongful executions by disproportionately gravitating toward minorities and the poor. The dysfunctional nature of this system has real-world effects that are directly relevant to considerations of ethics and basic human rights.

Capital punishment is a system with a long history that provides a mechanism for retaliation. This mechanism has evolved greatly and continues to evolve, yet stems from the same principle that gave birth to and motivated the sustained use of legislated retribution throughout history. The death penalty existed before prisons and was practiced in a manner reminiscent of reactionary zeal rather than of logically-constructed proceedings. The principle underlying capital punishment was thus quite primitive. In fact, “capital punishment” derived its name from the means of execution known as beheading or decapitation. The Latin word capitalis literally means “regarding the head,” and is the root of our English words capital and decapitation. The use of the death penalty was common to nearly all societies and extends to the beginnings of recorded history. In keeping with its primitive nature, some ancient societies imposed execution for only minor offenses. For example, Rome's law of the Twelve Tablets in the fifth century B.C.E. imposed death as the penalty for disturbing the peace of citizens at night and for dissenting against popular consensus through artistic expression [1]. Other ancient societies reserved the death penalty for what they defined as the most egregious of crimes.

The common thread connecting these societies was their belief in the death penalty as an effective method of discouraging and deterring crime, a belief that flowed from a penchant to gravitate toward primitive approaches characterized by retaliation and vengeance. In an article examining the socio-cultural reasons behind the high execution rate in Texas, research journalist Ned Walpin touches upon the historical relationship between state-sanctioned executions and illegal lynchings:

Lynching [does not] represent justice but rather the clearest way to exclude someone (or, implicitly, a whole group) from society. A member of a society who breaks the law experiences the force of justice; the representative individual who is forcibly rejected by, or excluded from, society is lynched. Based on this understanding of lynching [there] is a direct, inverse relationship between executions and lynchings over the course of the twentieth century. Executions simply replaced lynchings as the accepted way to sate the popular (white) need to "dehumanize" or "exclude" certain groups from normal society. If lynchings reminded white folk and black folk alike who was an "insider" and who was an "outsider"--who was "us" and who was "them"--then executions were implemented to serve the exact same purpose [2].
Capital punishment has been demonstrated by numerous studies and analyses to be ineffective on several fronts. George Bernard Shaw once noted in his characteristically insightful manner, “Murder and capital punishment are not opposites that cancel one another out but similars that breed their kind.” The failure of capital punishment to deter crime vindicates this observation. Social psychologist and lawyer Mark Costanzo writes that the deterrence argument “assumes that potential killers engage in a dispassionate weighing of the costs and benefits of killing. This assumption is simply wrong. Most murders are crimes of passion – committed under the blinding influence of rage, hatred, jealousy, or fear” [3]. A 1980 study conducted by criminologists William J. Bowers and Glenn Pierce, both of whom hold the position of Principal Research Scientist at their respective universities, found that intentional murders accounted for less than 10 percent of the total [4].

In addition to being ineffective, capital punishment is also unjust on several overlapping levels, not least of which is the fact that the demographics of death sentences reveal disproportionate race and class discrimination. Recent evidence has shown that “a pernicious pattern of discrimination remains in the prosecution process in capital cases" [5]. Moreover, the conclusions assessed from this evidence “suggests in part that the mostly white-administered justice system tends to place a lower value on black lives than on white, in comparable circumstances” [6]. According to a recent report published by Amnesty International, race continues to figure prominently in U.S. death penalty cases. The report states, “African Americans are disproportionately represented among people condemned to death in the USA. While they make up 12 per cent of the national population, they account for more than 40 per cent of the country’s current death row inmates, and one in three of those executed since 1977” [7].

Injustice also emerges in the observable trend of unreliability inherent in the capital punishment system and the resultant frequency of false convictions. The same report by Amnesty International states, “Since 1973, more than 100 people – 45 per cent blacks, 42 per cent whites, and 11 per cent Latinos – have been released from death rows around the country after evidence of their innocence emerged” [8]. An article in the February, 2000 issue of The Progressive reports, “In 1999, eight people were freed and declared innocent of their crimes, bringing the total of those exonerated from death row to eighty-four since 1973, or about one-seventh of all those executed” [9]. The penchant for law enforcement personnel to mistakenly snatch innocent individuals is rather astonishing. A 1996 Justice Department report entitled Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial found that in 8,048 rape and rape/murder cases investigated by the FBI crime lab between 1988 and 1995, a total of 2,012 of the primary suspects involved were exonerated based upon the DNA evidence alone. “Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained (primarily by State and local law enforcement), the primary suspect has been excluded by forensic DNA testing” [10]. Peter Neufeld and Barry Scheck, two of the contributing authors of the report, state further that

Without DNA testing, the prospects of wrongful convictions in these exclusion cases are evident. Even if one assumes half the normal conviction rate (State conviction rates for felony sexual assaults average about 62 percent), one would expect that hundreds of people who have been exonerated by FBI DNA testing in sexual assault cases over the last 7 years would have otherwise been convicted [11].
The legality of the death penalty is also highly dubious, and considerations of both the ineffectiveness and injustice of the system are directly relevant to the legal aspects and make a convincing case for abolishing the death penalty simply on that level. The Eighth Amendment to the U.S. Constitution forbids the use of punishments that are excessive compared to either the crime or the emotional and/or intellectual competence of the perpetrator. The Amendment uses the term “cruel and unusual punishments” to describe such excessive punitive measures. The current methods and approaches of capital punishment in the United States fall into this category, as both physical and psychological pain is inflicted on inmates. The many documented instances of physical pain experienced by inmates attests to the unconstitutionality of the process and to the fact that many execution procedures are botched and inhumane to a degree not becoming to a First World society. For example, many witnesses over the past several decades have provided detailed descriptions of electrocution, to take just one example. In his dissenting opinion for Glass v. Louisiana, Justice William J. Brennan recounted as follows:

The hands turn red, then white, and the cords of the neck stand out like steel bands . . . The prisoner's limbs, fingers, toes, and face are severely contorted . . . The force of the electric current is so powerful that the prisoner's eyeballs sometimes pop out on his cheeks . . . Sometimes the prisoner catches fire . . . When the post-electrocution autopsy is performed the liver is so hot that doctors said it cannot be touched by the human hand . . . The body frequently is badly burned . . .” [12].
In this and similar accounts that relate to other execution methods such as the gas chamber and hanging, the fact that capital punishment has become far more than a matter of meting out correlative justice is made all too clear. Capital punishment has become indistinguishable from any systems of torture that far exceed the alleged crime as well as the mental health of the inmate, as discussed above.

The psychological aspect of capital punishment is also draconian. Sister Helen Prejean, whose life work has revolved around counseling convicts on death row, has witnessed firsthand both the psychological and physical pressures exerted upon them. Her experiences and testimony are documented in her memoir Dead Man Walking. Concerning Patrick Sonnier, a convicted inmate with whom she worked, she writes, “Later, in the months ahead, Patrick Sonnier will confide his terror to me of the death that awaits him, telling me of a recurring nightmare, always the same . . . For him there can never again be restful, unbroken sleep, because the dream can always come. Better, he [Sonnier] says, to take short naps and not to sink into deep sleep” [13]. The unnecessary physical and psychological suffering that is inflicted on the inmates prior to the actual moment of death (in other words, the actual prescribed punishment) is a telling reflection of what flows out of retributive tendencies, as opposed to the use of rehabilitation.

The appeal of legislated retribution to political motives that are inherently exploitative is well-documented. Alan Berlow, a writer for the Atlantic Monthly, reports on several instances of expressed opportunistic intentions on the part of politicians:

Kirk Fordice promised in his campaign for governor that he would make Mississippi the "capital of capital punishment." Texas Governor Ann Richards, who presided over fifty executions during her four years in office, lost to George W. Bush in 1994 after a campaign in which he attacked her for not executing more people more quickly . . . Kentucky Governor Paul Patton signed five execution warrants on his second day in office, though all five cases were still pending in court. Bob Martinez has bragged that he signed some ninety death warrants during his four years as governor of Florida. And Governor Bill Clinton flew to Arkansas during the 1992 New Hampshire presidential primary for the execution of a brain-damaged man who had killed a policeman. Flouting Supreme Court rulings against executing the mentally incompetent, Clinton seized control of the crime issue for the Democratic Party [14].
Perhaps the most infamous proponent and overseer of capital punishment is former U.S. President George W. Bush, who presided over more executions in the state of Texas than any other governor that state's history. Having presided over seventy-seven executions during his first term as governor, an average of one death every nine days was presided over by Bush, and to date no fewer than 100 individuals have been put to death on his watch. It is hard to conclude that Bush was simply fulfilling a duty of carrying out state laws when one considers the famous report by CNN journalist Tucker Carlson concerning Bush's reaction to a clemency plea put forth by a female prisoner on death row. Carlson, who is himself a conservative supporter of the death penalty, expressed the shock and disgust he felt when Bush smirked and mockingly imitated Karla Faye Tucker's plea for a stay of execution: “'Please,' Bush whimpers, his lips pursed in mock desperation, 'Don't kill me'” [15].

The sentiments expressed by Sister Helen Prejean should be voiced by those in this nation who stand opposed to legislated death toward the retentive and the fence-sitters, namely, “And I end by challenging people to ask themselves whether we can continue to allow the government, subject as it is to every imaginable form of inefficiency and corruption, to have such power to kill” [16]. The issue of capital punishment is anything but a marginal issue that relates only to the outcasts of society. The power of the government to legitimize state-sanctioned murder is a power afforded by democracy, and such legitimizing trends can be reversed through democracy. The machine of death is broken, a system which severs and which is itself severed. To borrow an age-old aphorism, when the blind lead the blind, faltering is inevitable.


Notes

1. Laurence, John. A History of Capital Punishment. New York: Citadel Press, 1960, p. 2.

2. Walpin, Ned. “Why is Texas #1 in Executions?” Frontline (February 1999). See http://www.pbs.org/wgbh/pages/frontline/shows/execution/readings/.

3. Costanzo, Mark, Ph.D. Just Revenge: Costs and Consequences of the Death Penalty. New York: St. Martin's Press, 1997, p. 104.

4. Bowers, W.J. and Pierce, G. "Arbitrariness and Discrimination under Post-Furman Capital Statutes." Crime and Delinquency 26 (1980): 563-576.

5. Harries, Keith and Cheatwood, Derral. The Geography of Execution: The Capital Punishment Quagmire in America. Lanham, MD: Rowman & Littlefield Publishers, Inc., 1997, p. 72.

6. Ibid., p. 72.

7. Amnesty International USA. "Death by Discrimination - The Continuing Role of Race in Capital Cases." Amnesty International (April 2003), p. 2.

8. Ibid., p. 15.

9. Progressive, The. "The Case Against the Death Penalty." The Progressive (February 2000), p. 3. Also available at http://findarticles.com/p/articles/mi_m1295/is_2_64/ai_59270817/.

10. U.S. Department of Justice. Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. Office of Justice Programs, June 1996, p. xxviii.

11. Ibid., p. xxiv.

12. Glass v. Louisiana. 471 U.S. 1080. U.S. Sup. Ct. 1985, pp. 1086-1087.

13. Prejean, Sister Helen. Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Vintage Books, 1994, p. 20.

14. Berlow, Alan. "The Wrong Man - 99.11 (Part Two)." The Atlantic Monthly (Nov. 1999): Volume 284, No. 5.

15. Carlson, Tucker. “Devil May Care.” Talk Magazine (Sept. 1999), p. 106. See also http://en.wikipedia.org/wiki/Karla_Faye_Tucker.

16. Prejean, Sister Helen. Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Vintage Books, 1994, p. 130.