Just about every year Texas tops the list as the state with the most executions, with 17 in 2010. This is twice as many as the next state, Ohio with 8 executions. www.antideathpenalty.org
Since 1976 Texas has executed about 375 people, followed by Virginia with about 100. And before each execution there is some kind of demonstration demanding that the sentence not be carried out. The two main arguments against the death penalty are that the individual being executed may, in fact, be innocent but the penalty is irrevocable, and even if he is guilty, the death penalty is atavistic, an act of vengeance. The government has no right to take any life, irrespective of the circumstances. They maintain, moreover, that opposition to the death penalty may be causing some prosecutors to look for lesser charges and it may be inducing some juries to acquit murderers or find them guilty of lesser crimes. Because they recognize the evil of murder, however, and the possibility that death penalty supporters may have public opinion on their side, opponents often recommend a sentence of life in prison without parole, both because, in their view, it may be appropriate, and in order to satisfy the others who believe that execution is a just punishment so that the killer will never be on the street again and have the possibility of killing someone else.i
It's a neat package. If only matters were so simple.
We make mistakes. There's no denying that. Fortunately, especially as pertains to our legal system, we're right far more often than we're wrong. By itself that doesn't justify errors, but it is important to look at all the implications of those mistakes. As opponents of the death penalty point out, the conviction of an innocent person leading to his execution is an irrevocable error.
Suppose an individual is convicted of murder and sentenced to death. Should that sentence be changed to life in prison without parole because the conviction may have been erroneous and thus the sentence unwarranted? After all, after the execution there will be no way to address the grievance.
Perhaps, but some who are imprisoned escape. And not all murderers are sentenced to death. Some receive short sentences or are paroled from life sentences. However it has occurred though, the freedom of someone guilty of killing is also a mistake that may have lethal consequences.ii According to the Department of Justice,iii within three years after release of an individual who had been imprisoned for “homicide,” 1.2% were re-arrested for a new homicide.iv There are no separate statistics for those who commit premeditated murder – a more serious crime than homicide – but it is likely to be higher.v The statistic doesn't help us understand how often convicted murderers escape from prison, often killing guards to attain their liberty. And it certainly doesn't include information on the frequency of release and subsequent homicide by accused murderers who were acquitted because evidence was excluded, or who were found not guilty because of insanity or duress or (real or claimed) self-defense. These statistics don't excuse the execution of an innocent person, but they bring a little perspective to the question. What is the risk of an error in the other direction, and how might we avoid that? How many deaths result from our failure to put murderers to death?
Suppose a jury convicts an individual of murder and the judge sentences him to a period of imprisonment. Suppose that following his release he kills someone else. In view of the known rate of recidivism, should he not have been released because of the possibility he would kill again and that the death of new victim would be permanent, and there would be no way to address the grievance after it occurred? Should all those convicted of murder of homicide get "life without parole" sentences?
The same questions – could there have been an error, and will the convicted criminal strike again after his release – may be asked about any crime and any trial. A mistake may be made, and even if there is not a death penalty the emotional, fiscal, and time loss effects will be permanent. They cannot be addressed in retrospect.vi For this reason, should we end the idea of trial for any individual accused of a crime? Should the whole question of judicial decisions – not just the death penalty for murder – be rethought because we are not perfect? The idea that mistakes are made is one that society as a whole must consider, and thought given to the extent to which we are willing to accept mistakes to prevent an even worse outcome.
And that is a question which is not limited to the legal system. There is a predictable death rate caused by automobile accidents. Deaths and disease are sure to result from legal use of alcohol, tobacco, and other substances. Mining deaths are common. Even construction – whether of high rise buildings, bridges, tunnels or highways – will predictably result in deaths and injuries. We know it will happen and the results will not be reversible. They are irrevocable. We could make all these activities illegal but we won't, even though those who die won't be murderers. Not only do we make mistakes, but we are ready to accept deathvii
However we only protest when the death penalty is involved, since we may make an error and since we must not allow the government to kill – in this case to execute those convicted of a capital offense by our own citizens. Is there any way to avoid errors, and, if not, are we better off not making any decisions so we can prevent mistaken ones? Or is this an error as well?
But even these considerations leave questions unanswered.
Suppose another country invades us. Should we surrender immediately to avoid the need to kill others and and to prevent the deaths of our own sons and daughters? Is killing ever a justified act by a government?
In terms of the justifiability of killing, there are differences of opinion. She was speaking of war, but Golda Meir said, "We can forgive you for killing our sons. But we will never forgive you for making us kill yours." She recognized the reality of death in war, but, like death penalty opponents, she questioned the morality of taking the lives of others.
On the other hand, in a release dated March 14, 2004, al-Qaeda stated "You love life and we love death."viii Different versions of this statement have been made by Major Nidal Hasan, the Fort Hood shooter, Adis Medunjanin, the jihadist who crashed while fleeing police, and many others. Martyrdom is an ideal in some countries. It is inculcated in children – often by their own parents or clerics – before they are old enough to form independent opinions. For them death is not something to be avoided because of its finality. It's a preferred outcome. And they're not alone. Indeed, some convicted of murder would choose the death penalty over a life sentence with no possibility of release. Should they – especially if they admit to the act – be given the choice? Should they be permitted suicide?ix Or might this be too easy for "martyrs," as well as too tempting for innocent persons who fear a life in prison? The two major objections to the death penalty – the possibility of error and killing sanctioned by the state – are not as clear as they may seem.
According to the Bible, the death penalty is warranted for a number of crimes including intentional murder.x That, however, is not a satisfactory justification in the eyes of many. We don't even agree on the definition of murder. So what should be done? I don't know the answer. I'm not smart enough. But I do know that the debate is not as black and white as it's often painted. And that's a start.
Next episode: "Politics As Usual" – Sadly that's the case.
i Their approach is not complicated. Death penalty opponents see this as a way around those who raise an objection with which they may disagree but which they cannot defeat in argument. It's the lesser of evils. "Life isn't fair, it's just fairer than death, that's all." — William Golding, The Princess Bride. (Of course that's not what Golding meant, but life isn't fair.)
ii The pain suffered by the murdered party and his family is not considered in the statistics.
iii “Bureau of Justice Statistics Recidivism of Prisoners Released in 1994” Ojp.usdoj.gov. 2002-06-02. http://www.ojp.usdoj.gov/bjs/abstract/rpr94.htm. Cited in Wikipedia.
iv Or multiple homicides.
v One additional action would be the establishment of a registry of those convicted of homicide comparable to that for convicted sex-crime offenders. The recidivism rate for rape is 2.5%, which is higher than that for homicide, but statistics don't seem to be the determining factor. The rearrest rate for car theft is 78.8%, for larceny 74.6%, and for robbery 70.2% , but they don't get a registry. It's hard not to conclude that there's a political component, or one inflamed by the media. In any case, the establishment of such a registry for released murderers might be useful. That's a life sentence.
vi Actually the fiscal effects can be addressed at the cost of the time and money involved in a countersuit. But this is not always possible when the government is the opponent. And it is not always wise to invest the time, money, and emotion in a new trial even if it is.
vii At least the death of others, as long as it makes our own lives more enjoyable..
ix After all, suicide is now accepted, and abortion is morally and legally sanctioned.
x But not accidental killing or necessary killing as in time of war.
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