Law Fish News for 01-18-2018

The Case Against the Death Penalty

INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES. In 1972, the Supreme Court declared that under then-existing laws “The imposition and carrying out of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. Half a century ago, in his classic American Dilemma, Gunnar Myrdal reported that “The South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions.” A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist “Legacy of slavery.” Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half were black. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual “Constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime.” To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty. More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment, asserted: “The death penalty cannot be useful, because of the example of barbarity it gives men.” Beccaria’s words still ring true – even if the death penalty were a “Useful” deterrent, it would still be an “Example of barbarity.” No society can safely entrust the enforcement of its laws to torture, brutality, or killing. In 1995 Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “Importance and novelty” of the question “Whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings. Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “Deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “Historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James’ killers will not help balance the scales. “The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.”) A murder trial normally takes much longer when the death penalty is at issue than when it is not. “In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs”approximately 42 percent more than a case resulting in a non-death sentence. “Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime. Politicians could address this crisis for the most part they either endorse executions or remain silent.” The only way to make the death penalty more “Cost effective” than imprisonment is to weaken due process and curtail appellate review, which are the defendant’s only protection against the most aberrant miscarriages of justice. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to “Progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.” By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011. Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime.

Keywords: [“death”,”penalty”,”state”]