The peculiar punishment

Why is the death penalty still legal in the United States?

No seriously, why?

San Quentin State PrisonCalifornia Department of Corrections and Rehabilitation

The lethal injection room at San Quentin State Prison in San Quentin, Calif.

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Ryan Hanschen: Capital Punishment is Wrong

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Shalu Bhatti: Death Penalty Pros

It has already been abolished in every other Western society, and, much like slavery before it, the US lags behind its fellows in following suit. Perhaps, as in 1863, it’s time that we followed their example. Forget the political ramifications of being seen as soft on crime; here is a set of reasons why the death penalty should not be permitted in the American criminal justice system.

The death penalty is too extreme. This is because killing another person is so far separated from the other possible punishments that can be assigned. The chasm between imprisonment and fines and the death penalty is a wide one indeed, filled with countless macabre punishments that would be deemed cruel and unusual.

It simply makes no sense that while a man cannot be beaten for a crime, he can be killed for one.

The death penalty is not a deterrent. A common defense of the death penalty is that it deters the most abhorrent crimes, but the data suggests otherwise. In fact, 88 percent of criminologists do not believe that the death penalty has a deterrent effect. The deterrent claim defies simple logic: The effect could only hold if someone seriously contemplates the potential ramifications of  his actions, in particular those of getting caught, before committing a crime. As the latter in particular does not usually happen, there is no reason why knowing whether or not your state has the death penalty — knowledge that is probably not widely held, anyway — would deter the most common murderers.

The death penalty is not cheap. The average cost of an execution is $3 million. Because those who are executed are also kept under 24-hour watch and go through endless appeals, this cost is actually significantly higher than the next most severe sentence, life in prison without parole. As James Ellis, Chief Criminal Judge of Oregon, once said, "Whether you're for it or against it, I think the fact is that Oregon simply can't afford it."

The death penalty is racist. In a spectacular piece of social science, University of Iowa law professors David Baldus and George Woodworth, along with Arizona State Univerity law professor Charles Pulaski, found that people accused of killing white victims were 4.3 times more likely to receive the death penalty thanthose accused of killing black victims, and that black men were 1.7 times more likely to receive the death penalty than white men. Unfortunately, the Supreme Court struck an attempt to introduce this study as evidence in McClesky v. Kemp, citing that the statistical data was incapable of showing deliberate intent of racial bias, and thus could not prove that the death penalty is discriminatory. This decision was and is one of the low points of Supreme Court jurisprudence.

The death penalty can be wrong. With the advent of DNA testing, 17 people on death row have been found innocent of the crimes for which they sat to be executed. How many people totally innocent of the crimes for which they were found guilty have been executed in the past? There is no clearer or more absolute violation of due process; new evidence does not matter once you are already dead. Justice Potter Stewart once compared being given the death penalty to getting struck by lightning in its random and capricious nature; the fact that it’s irrevocable only makes it worse. These 17 were the lucky individuals; for those whose innocence is found post-mortem, there can be no redemption — for us, anyway.

The death penalty has an alternative. If the goal is to get known, dangerous criminals off the streets, then life in prison without parole is just as effective as the death penalty. It’s cheaper, too. More, to any rational individual, life in prison has just as much deterrent effect as the death penalty could have; thus, if the death penalty has any deterrent effect at all, it is matched by life in prison without parole. Indeed the American public, about 60 percent of which prefers the death penalty, favors this option over the death penalty when given it as an explicit alternative. There is no reason people have to be put to death when a better, more preferred option exists, particularly when that option allows for the convicted to be set free on the off chance that new evidence finds them innocent. The only individuals for whom this may not be better are the friends and family victimized by the criminal, but the criminal justice system exists to protect society from its worst members, not to act as an instrument of vengeance for past crimes.

The death penalty does not rehabilitate. A secondary goal of the criminal justice system is to rehabilitate criminals. While prison may have some small chance of changing these individuals for the better, killing them has zero chance of doing so.

The death penalty violates human rights. It is commonly held that the right to life is the most fundamental human right. It does not make sense for a nation that so cherishes human rights around the world (indeed, to the extent of intervening militarily when other nations kill their civilians) to execute its own people, no matter how horrible those they kill happen to be.

What, then, could possibly be the purpose of the death penalty in American society? It is an irrevocable, unfair, expensive, and racist punishment that has a natural alternative. One hundred and fifty years ago we let go of one peculiar institution; today, we should do so again. It is time that we moved past our draconian past and let go of this outdated and barbaric punishment forever.