Many countries around the world have abolished the death penalty. In a world of ethnic massacres and school shootings, death penalty is easily overlooked. But perhaps the single most striking thing about them is their rarity. Capital punishment has been abolished by all the big democracies except the United States, Japan and India. Why America has kept it?
Land of Liberty
One reason why America has kept the death penalty is an admirable one: because it is so democratic. In virtually every other country where the death penalty has been removed, it has been done by the political establishment in the face of polls showing support for it. Most Americans believe, in the words of John Stuart Mill, one of Britain's great philosophers of liberty, "that to take the life of a man who has taken that of another is not to show want of regard for human life. On the contrary, it shows most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself, and that while no other crime that he can commit deprives him of his right, this shall."
Conflicts about the proper respects for life can never be resolved; there is also no solid evidence about the death penalty's effectiveness as a deterrent. But both sides can agree that if such a punishment is to exist the courts must take the most painstaking care to establish the guilt of the accused beyond any reasonable daunt. As Mill himself conceded, there is "one argument against capital punishment which I cannot deny to have weight: that if by an error of justice an innocent person is put to death, the mistake can never be corrected." It is here that America's courts are failing.
Since 1976 (when the death penalty was reintroduced), America has executed 640 people. So the 87 people exonerated after being sentenced to death amount to one reprieve for every seven killed. No one knows for sure whether innocent people have been killed. But there is surely a disturbing likelihood that this has happened. There are half a dozen cases in which people have been executed despite doubts about their guilt being expressed even by the Supreme Court. In 1993, Leonel Herrera was executed in Texas even though a former judge submitted an affidavit that another man had confessed to the crime.
Nevertheless, the current enthusiasm of Americans for the death penalty remains something of a puzzle. It cannot as many Europeans might imagine, be explained as a legacy of the country's frontier past. In the late 18th century, American state began restricting the use of the death penalty to first-degree murder while most European countries were still hanging people for a wide variety of crimes. And the state of Michigan, closely followed by Rhode Island and Wisconsin, led the way in completely abolishing the death penalty in 1846, almost 20 years before Portugal became the first European state to do so. Yet though pressure for abolition built up in America before the Civil War — and again briefly after the Second World War — it has dropped sharply since. Today 38 states, the federal government and the American armed forces apply the death penalty. And for most of the past 30 years, according to the opinion polls, public support for the death penalty has risen.
The commonest, and the most common-sensical, argument for the death penalty is that it deters murder. But numerous studies have failed to establish that execution deters better than a long prison term. Not only has the United States the highest murder rate in the industrialized world, but also murder rates there are highest in southern states, where most execution occurs. Many subtler studies have analyzed murder rates in neighboring states with and without the death penalty, before and after high-profile executions or before and after the death penalty's abolition or reintroduction. None has found good evidence for deterrence.
In certain ways this is not surprising. Consider the statistics for the ten years to 1993. About 22,000 criminal homicides were recorded annually in the United States during these years. Of these, only 2,000–4,000 cases were egregious enough to qualify for the death penalty and, on average, 250 actually resulted in a death sentence, and, during these years, only 22 people, on average, were executed annually. So the chances of a killer being caught, prosecuted, convicted and then executed during this period were about one in a thousand. Given these odds, and the vagaries of the criminal justice system, a killer has to be very unlucky indeed to end up being executed.
The number of executions has increased since 1994 to 68 last year, and may reach 100 this year, but that does not shorten the odds by much and hardly alters the argument. Moreover, by law the death penalty is supposed to be reserved for perpetrators of the worst sorts of murder, criminals who have killed repeatedly or committed appallingly violent crimes. But these are the people least likely to be rational enough to calculate the consequences of their acts, or to be deterred by the prospect if execution. For the death penalty to be an effective deterrent, America would probably have to execute hundreds, even thousand, every year, not a few dozen. The probability that many more innocent people would also be executed have to be weighed against the benefits of deterrence, a minority of death penalty supporters might not mind. But could the majority of Americans stomach it?
Probably not. When probed, the American public's support for the death penalty appears wide, but not very deep. Although 70%–80% of Americans regularly tell pollsters they favor capital punishment, few actually apply it when given the chance. Juries impose the death penalty in only about 10% of capital cases, and this is so despite the fact that American capital juries are always "death qualified" — meaning that death penalty opponents are barred from hearing the case.
Numerous polls have found that support for the death penalty drops by 20–30 percentage points if life imprisonment without parole is offered by way of alternative, as it must be in 22 death penalty states. A poll in 1997 for Time magazine confirmed that 52% did not believe that it deters people from committing crimes and 60% did not agree that the desire for vengeance held by a victim's relatives was a good enough reason for putting a murderer to death. A 1995 poll of 386 police chiefs commissioned by the Death Penalty Information Center, a research group, found that two-thirds did not agree that the death penalty reduced homicide or served as a useful tool of law enforcement. Over 80% thought that murderers did not think about punishment before killing. Nevertheless, a majority of these police chiefs, like a majority of the public, still said they favored the death penalty. For many Americans, capital punishment seems more a symbol of society's indignation at the evil in its midst than a fair or useful weapon against crime.
At the expense of justice
If symbol it is, it has proven a costly one. Because it is irrevocable, and because taking someone's life even in the interest of justice is such a heavy step. America's judiciary has struggled for decades to apply it fairly and consistently, and largely failed, the subject has tormented the Supreme Court, Death Penalty jurisprudence has become abstrusely complicated as a divided court has flip-flopped over how much discretion to allow judges and juries in capital cases. In 1972 the court found that existing death penalty statutes breached the constitution's eighth amendment because death sentenced were being applied so arbitrarily that they were "cruel and unusual in the same sense that being struck by lightening is cruel and unusual." All outstanding death sentences were commuted to life imprisonment.
Yet this is not beyond improvement, in three ways. First, all states should give death-row inmates dispensation to have DNA tests. Eight of the miscarriages of justice since 1982 have been brought to light by the development of DNA tests after the original convictions. But only New York and Illinois grant all death-row prisoners the right to have DNA tests, and most have strict time limits for the presentation for new evidence.
But even if this were done, DNA evidence, especially, in murder cases, is often unavailable or inconclusive. A more vital problem is the gross inadequacy of defense counsel. Most people accused of murder get a lawyer appointed by the court. A few fall asleep during the trial; others turn up drunk. A horrifying number lack any experience in murder trials.
New York State has set up a special Capital Defense Unit with experienced lawyer who specialize only in capital cases. Other states should copy the idea — and required that defendants in murder trials have at least two lawyers drawn from the pool. And they should pay them properly; some states pay just $11 an hour. Crucially, it offers federal funds to states that embrace these reforms: at present many small counties can barely afford the cost of a murder trial.
Third, the courts have to deal with prosecutorial misconduct. At present, prosecutors make up their own minds how to fulfill the legal obligation to hand over to the defense evidence that is "relevant" and "exculpatory." In cases involving the death penalty, they should open all their files to the defense without reservation. This would force the prosecution to seek the death penalty only where it had incontrovertible proof.
(Selected from the Economist June 10th, 2000)