Abolishing the Death Penalty Essay

Abolishing the Death Penalty:

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How it violates the spirit and letter of the Constitution

The imposition of the death penalty for violent crimes has caused furious debate since the beginning of the American republic. The debate has been subject to the political winds present at the time of argument. The modes of carrying out capital punishment have changed. The crimes for which one could receive it have been expanded, and then contracted. Capital punishment itself has been outlawed, then reinstated.

America was formed as a reaction against tyranny. It was designed to confer more rights to the individual, the minority and the condemned than any other society in history. Americans were granted, by God, not the state, with basic bedrock rights that should not be subject to political winds of public opinion. First among these is the right to life.

The execution of the guilty is arguably a violation of that person’s constitutional civil right. An execution of an innocent person is unquestionably a violation of that persons civil rights. Growing evidence shows that our judicial system is far from being flawless. Inequity and corruption in the system has led directly to wrongful convictions, only some of which are corrected in the appeals process. That is why capital punishment should be outlawed. “Beyond a reasonable doubt” may be the standard for conviction, but it is much too low of a standard for the taking of a life. If this is an acceptable standard for putting people to death, we are almost guaranteeing that some innocent people will be executed. State sanctioned murder is not compatible with American values and the Constitution.

Arguments for the DP

In an age where media has become omnipresent, there is always a murder case to both entertain and outrage the public. Frequent exposure to these types of cases is part of the reason the death penalty has gained support in recent years. Proponents believe that the threat of the death penalty is the only means of dissuading some violent crime. It has become widely accepted that some people just “deserve to die” for their crimes. As case after case of serial killers and sexual predators enters the mass media, the public has become more coarsened and reactionary to any violent crime.

Many of the issues supporters of a death penalty ban cite are overblown and misconstrued, according to death penalty advocates. They claim that the proportion of black people on death row, for instance, is actually low when considering the respective murder rates. In The Death Penalty, Bender et al. interviewed prominent supporters of the death penalty:

            They maintain that the debate over racial bias in capital sentencing

            has contributed to a harmful delay in justice, one which the average

            U.S. citizen does not support.  (2001, p.11)

Americans have weighed the issues and see capital punishment as an unfortunate necessity. It sends a stern societal message that crime is unacceptable. This message, even if it is not a deterrent, is part of the collective national identity. The law is sacred. The punishment meted out is in recognition of that fact as much as in the damage to the victims of the crime.

Support has held steady for capital punishment despite the recent acquittals of a number of death row inmates. A 2000 poll by ABC News fixed support of the death penalty at 64% (Lifton, 2000). In the minds of many who support the death penalty, the acquittals only serve as more evidence that the system works.

            Even Supreme Court justices have cited polls in ruling that the

            electric chair and gas chamber do not represent cruel and unusual

            punishment. (Lifton, 2000, p.213)

The effect of strong public support for capital punishment can not be underestimated. For a politician, support of the death penalty is often mandatory in order to get elected. Those who favor rehabilitation are seen as soft on crime.

Can a criminal who has created a heinous act even be rehabilitated in order to somehow offer something to society? Those in favor of capital punishment might reply that some criminals are beyond rehabilitation. The cost of keeping these criminals behind bars, the worst of the worst, for the rest of their lives should not have to be borne by the taxpayers. In fact, many proponents of the death penalty see the lengthy appeals process as excessive and too costly. Some states such as Virginia and Texas have begun a “fast track” process of death penalty appeals. Even so, no confirmed case of an innocent person being executed in recent years has been proven.

In recent executions, such as that of Stanley “Tookie” Williams and Carla Faye Tucker, opponents have presented strong evidence of rehabilitation. To many death penalty advocates, this is irrelevant. There is nothing a convicted murderer can do to atone for his or her crime. The fact that these inmates were allowed dozens of years in jail during their appeals process is a further injustice to the crime victims. Everyone with a death sentence, DP advocates say, “finds religion”.

From the criminal justice perspective the threat of the death penalty is an effective crime solving tool. Many confessions are obtained from suspects hoping to avoid the death penalty. Suspects are also compelled to give information about the crime that the victims might   otherwise have never obtained.

Arguments against the DP

            There is a worldwide emerging consensus against the death penalty. Most of the industrialized European nations, including Great Britain, France, Germany and Ireland have already abolished capital punishment. Even countries with spotty recent records on civil rights have recognized the injustice of the practice. South Africa, Haiti, Venezuela and Colombia have also opted for its elimination. America shares its usage of capital punishment with tyrannical regimes such as North Korea, Iran and Cuba.

From the very beginning of our nation, leaders had trepidation about the death penalty. They had seen how it had been used and abused in Europe. Some favored outright abolition of the penalty, based on humanitarian grounds. Others favored it only for murder. In 1793, Dr. Benjamin Rush of Philadelphia sounded an optimistic note:

            Humanity and reason are likely to prevail so far in our legislature

            that a law will probably pass in a few weeks to abolish capital

            punishments in all cases whatever. (Banner, 2002, p. 88)

Due to compromise, the law never passed. In much the way that the injustice of slavery was passed to future generations to deal with; so, too, was capital punishment. Today we have the benefit of increasingly clear evidence that regardless of whether the death penalty is just in theory; its application is unfair and fraught with error.

Current federal laws allow the states a great deal of leeway in deciding their death penalty laws. In other words a crime in one state may result in the death penalty in one state may not in a bordering state. When considering an issue such as life and death this is patently unfair.

The right to life and liberty is written into the federal constitution. Why should the states be able to decide whether this constitutional right is being upheld? States such as Texas have amended the appeals process to quicken executions. Thirty-five percent of all convicts executed since 1976 have been from Texas. Thirty-six states now allow the death penalty, 14 do not. In the states that allow it, the rules regarding qualifying crimes, age and execution methods vary widely.

Does racism play a role in who receives a sentence of death? Can a poor person facing a death penalty trial receive as competent and effective representation as anyone else? These are two profound questions to consider when thinking about whether capital punishment is just. Despite the overwhelming support for capital punishment, many Americans have doubts that linger just below the surface. According to Robert Jay Lipton in Who Owns Death:

            Nearly everyone feels that there is something wrong about capital

            punishment, perhaps because it violates our fundamental commitment

            to life while claiming to uphold it. (2000, p. xii)

Race and Poverty

American history shows a lengthy record of justice based on race. It is only since the civil rights movement of the 1960’s that this began to change. Racism dies a very long, slow death. It is more than likely that there is still a potent element of racism within the system.

This country’s history of the administration of the death penalty

            is fraught with evidence of racism. Only in rare instances has

            anyone other than a poor person been executed.

(Geraghty, 2003)

This can surface in many different ways. African-Americans, in particular, are more likely to become suspects, more likely to be indicted and more likely to be poor. The number of African-Americans currently under a sentence of death is disproportionately high in comparison to their percentage of the population and their percentage of murders committed. According to the United States Bureau of Justice Statistics:

            Of persons under the sentence of death in 2004

–          1,850 were white (inc. 357 Hispanic)

–          1390 were black

–          28 were American Indian

–          32 were Asian

–          14 were of unknown race

(Bureau of Justice Statistics, 2006)

The effect of race is often multiplied by the effect of poverty. Most suspects

facing death penalty trials cannot afford to fund their own defense. There are many skilled and dedicated public defenders, but the evidence does not lie-many poor people are executed, but rich people rarely are. DA’s take into account the defendant’s financial status before deciding to make a death penalty charge. They know it will be harder to convict a wealthy suspect who can afford a vigorous defense. As a result, they may not even ask for the death penalty in these cases.

There are too many inmates whose cases need additional investigation or forensic testing for the resources available to them. Inmates with access to money may have the resources to have their cases fully investigated, while many others may not. This is fundamentally unfair. In the context of life or death it can be a violation of Constitutional right.

 Corruption and Politics

Sheriffs, judges and District Attorneys are elected under the promise that they will control crime. DA’s are often under extreme pressure to prosecute vigorously when a suspect emerges.

The government, as a whole, sternly resists admitting any mistakes even when they are obvious. The jobs of those involved may be at stake. Admitting that someone was wrongly convicted is a particularly bad black eye for law enforcement, because in addition to the wrongful conviction police must face the horrifying prospect that the real suspect is on the loose.

The most complete investigation of the dynamics is being conducted in Illinois, a state which recently suspended use of the death penalty. A shocking number of questionable cases have arisen. In some cases, death penalty verdicts have been reversed outright due to exonerating DNA evidence. Officials are still slow to accept this, however. Eric Zorn of the Chicago Tribune describes the reaction of local officials who were presented with evidence that a miscarriage of justice had taken place:

            When confronted with powerful new DNA evidence that a

            wrongful conviction had occurred, officials within the DuPage

            County state’s attorney’s office last September chose to concoct

            a preposterous scenario in order to allow them to continue their

            prosecution…  (Zorn, 1996)

Zorn asks the questions that officials, and the public at-large, should be asking themselves as they operate in environment where the death penalty is widely popular and often encouraged.

            Why did officials turn a blind eye to the inconsistencies and

            absurdities in their evidence?…Why did they argue falsehoods

            to the jury?…Why should we trust that this doesn’t happen

            often?  (Zorn, 1996)

In a number of ways, the system is stacked against those facing the death penalty. During jury selection, potential jurors who express strong views against the death penalty are excluded, hence the phrase “death-qualified jury”.

The appeals process has been designed to catch errors in the process with The Supreme Court as the final arbiter. By the nature of our law, courts are extremely reluctant to nullify the decisions of other courts. Getting the Supreme Court to take the case of a condemned inmate is also much easier said than done. It has grown even more difficult, according to Geraghty:

            The Supreme Court and Congress have placed obstacles in the

            way of fair adjudication of capital cases that elevate procedure

            over substance to the extent it is not clear that our court of last

            resort would step in to save the life of a defendant whose

            innocence is substantially established.  (2003)

            How sure can we ever really be that we are executing the right person? The inherent pressures around a death penalty trial can skew the final result. Convict have been sent to death row almost solely based on the testimony of known felons. Eyewitness testimony, once the gold standard of evidence, now is recognized as often being wrong. We cannot be sure, even with people who are convicted with the use of DNA. Lab practices and standards vary widely.

 Expert testimony is often bought and paid for. In West Virginia, an expert who played a vital part in the convictions of dozens of individuals was found to be fabricating scientific evidence. If we are going to put someone to death we must somehow be sure, not beyond a reasonable doubt, but beyond any doubt. This recent case is among many that show what seems to be sure at the time of trial may not always turn out to be the truth:

            My case is the poster child for what happens to the justice

            system when the public’s well founded fear of criminal acts

            results in giving police and prosecutors a mandate to convict

            at all costs…  (Mills, 2000)

            The individual in this case was convicted and sentenced to death. He spent several years on death row. During Illinois’ moratorium on the death penalty, his case was investigated further. New evidence arose that confirmed his innocence and he was eventually released.

Several similar exonerations have occurred in Oklahoma. Mark Fuhrman, in his investigation of Oklahoma’s death penalty, found a process that leans heavily in favor of conviction. Vague statutes allowed for usage of the death penalty for a variety of crimes. Oklahomans, like most other Americans, are in favor of law and order. They want to believe that the system is fair and just. Evidence shows that this is not always the case. Fuhrman cites Jim Fowler, a prominent Oklahoma attorney who knows the system from the inside:

            As long as the criminal justice system is administered by human

            beings, we should not have a punishment that is one hundred percent

            irrevocable.  (2003, p.250)

Once a defendant has been convicted and given a sentence of death the odds of receiving justice in the appeals process are heavily stacked against him. The presumption of innocence no longer applies. High profile death penalty cases are especially difficult to overturn. The evidence of innocence usually has to be even stronger than the evidence used to convict before officials will accept that there is a problem. That evidence must be obtained without the active cooperation of the authorities.

In the end, there is no way we can restore the rights of the wrongly executed. Victims of crime have a right to justice, but not to vengeance. A sentence of death also does not relieve the cost of incarceration. Those under a sentence of death are rightly entitled to a number of appeals. These appeals choke an already overburdened court system. Removal of the death penalty would free up the system to provide a higher level of justice for everyone.

Many victims of violent crime worry that someday the perpetrator will get out of prison. Tighter sentence guidelines for the most serious crimes could allay those fears. When the general public hears a sentence such as “life in prison with possible parole in twenty years”, such fears are raised. How can it be a life sentence if there is possible parole? People are then more inclined to favor a death penalty. This sentence may make perfect sense in criminal justice jargon, but to the public it raises the threat that the perpetrator may get out.

In Texas, a court order to reduce prison overcrowding led to the release of a number of violent felons with life sentences. In one case, a convicted killer went on another killing spree after he was released. Events like this, as much as anything, stiffen support for the death penalty. If we are to give life sentences, the public needs to be assured that “life means life” and that enough prisons are being built to house them.

The Outlook

The errors uncovered in Illinois and Oklahoma provide a sobering picture. No one can be sure if innocent people have been executed, it is obvious from the research that innocent people somewhere in the country are at risk of being executed. Many of those already exonerated were only saved because of efforts initiated by private entities.

            The outcome of Manning’s case means that Illinois has cleared

            more inmates (13) than it has sent to the execution chamber since

            it reinstated capital punishment in 1977.  (Mills, 2000)

The Illinois experience and the efforts of groups such as the Innocence Project have done little to cut in to the strong national support for the death penalty. The presence of the death penalty itself has little bearing on the crime rate, which is a function of more complicated sociological factors. The crime will always be there, regardless of the penalty. Therefore, support for the harshest penalty is not unlikely to wane in the near future.

It may take a watershed event to change opinion. Some who have seen executions have come out against its imposition. They posit that if the American public could see the actual event their votes and tax dollars support, their collective stomach would turn. Opening executions to widespread viewing presents more constitutional problems, however. It also underestimates an American public that would quickly become hardened to the process.

There is some possible evidence that either jurors are becoming more reticent to assess the death penalty or prosecutors are becoming more reticent to seek it. According to the Bureau of Justice Statistics the number of inmates under sentence of death has declined for four consecutive years (2006). However, this could simply be reflective of a temporary decrease of crime.

Overall support for the death penalty stands at around 64%. However, a poll conducted in 1994 found 80% support (Lifton, 2000). Will enough minds change to create pressure to eliminate capital punishment? It remains to be seen. Since the death penalty is a public driven issue more than almost any other, it will take a substantial reversal of opinion to eliminate it.

The argument that most other countries have abolished the death penalty has gone nowhere. Americans have a unique belief in the efficacy of their justice system. Pointing out disagreement from abroad will only harden the resolve of pro-capital punishment Americans. Unfortunately, the only way to change minds may be to prove that an innocent person has recently been executed. It may, in fact, take more than one.


Capital punishment gains us little but loses us a lot. Revenge is a hollow victory that coarsens us to the very killing we despise. There is strong evidence that the application of the death penalty is unequal. This is an affront to the spirit of the U.S. Constitution. There is additional evidence, through dozens of last-minute exonerations, that the risk of executing an innocent person is very real. This violates the very letter of the Constitution. This applies regardless of whether rehabilitation is possible. Much of the current Constitutional debate centers on the method of execution. What do we, as a society, think of as “cruel and unusual”?  This misses the point. There never will be a way to put someone to death that is not “cruel and unusual” to that person. As odious as it may be to do so, the rights of the convicted person must be honored. This country is based on inalienable individual rights, including life, that are given by the creator and not by the state.

            In 1972, the Supreme Court outlawed capital punishment only to have it reinstated later. The same inequities and political dynamics that called the process into question then are still present. In fact, if not for the new science of DNA dozens of innocent people would have gone to their deaths. How many have already died needlessly?

            The beauty of the American Democracy is that, sooner or later, its flaws come to surface to be dealt with. Such was the case with slavery, which was allowed to continue until the civil war. At that time survival of the Union depended on dealing with this fundamental denial of rights to certain citizens. It’s unlikely that another war will erupt in America over the rights of condemned criminals. An increasing number of people, though, are uneasy about capital punishment. There will always be a substantial number of people who view the concept of capital punishment as just. But as the evidence that it is not being applied fairly and with surety grows, a political movement may arise that can end its practice altogether.


Banner, Stuart. (2002). The Death Penalty: an American history. Cambridge, Mass.:

Harvard University Press.

Bender, David [et al.]. (2001). The Death Penalty. San Diego: Greenhaven Press.

Bureau of Justice Statistics. (2006). “Capital Punishment Statistics” [online]. Retrieved

11/10/2006 from: http://www.ojp.gov/bjs/cp.htm

Fattah, Ezzat A. (1981). “Is Capital Punishment a Unique Deterrence? A Dispassionate

Review of Old and New Evidence”. Canadian Journal of Criminology, Vol. 23.; 291-313.

Flanders, Stephen A. (1991). Capital Punishment. New York: Facts on File.

Fuhrman, Mark. (2003). Death and Justice: an expose of Oklahoma’s death row machine.

New York: Morrow.

Geraghty, Thomas F. (2003). “Trying to Understand America’s Death Penalty System

and Why We Still Have It”. Journal of Criminal Law and Criminology, Vol. 94.

Lifton, Robert Jay & Mitchell, Greg. (2000). Who owns death?: capital punishment, the

American conscience, and the end of executions. New York: Morrow.

Mills, Steve & Armstrong, Ken. (2000). “Another Death Row Inmate Cleared”. Chicago

Tribune, Jan. 19.

Zorn Eric. (1996). “To Set Murder Case Right, Find Out Why It Went Wrong”. Chicago

Tribune, June 9.

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