Capital Punishment in the United States: Legitimacy and Efficacy in a Modern Liberal Society - Coursework Example

Capital Punishment in the United s: a consideration of aspects of its legitimacy and efficacy in a modern liberal society INTRODUCTION Application of the death penalty is one of the most divisive criminal justice issues in the United States today. It raises issues extending from racial and gender equity, of prospective homicide deterrence, of effective alternatives, of the monetary costs of execution vice incarceration, to considerations of fundamental justice itself. It is the author’s contention that, given the weight of evidence, one result of regular application of the death penalty is a reduction in those species of homicides (e.g., felony murder) for which it is an available punishment. Furthermore, the author contends that such application can be morally justified in terms of the values and goals of a society that, at its core, has a fundamental respect for the integrity of the individual and human life itself. BACKGROUND Between 1930 (the first year reliable nation-wide statistics began to be collected on a regular basis) and 1967 (when an unofficial moratorium on executions began), 3,859 persons were put to death by civil jurisdictions.1 At present, courts of the Federal government, the United States military, and 37 states are legislatively authorized to impose the death penalty. Almost all such penalties have resulted from state-level proceedings. Since the resumption of executions in 1977—after a four-year moratorium2 imposed pursuant to the Supreme Court’s decision in Furman v. Georgia (408 U.S. 238, 1972) and brought to an end with the Court’s decision in Gregg v. Georgia (428 U.S. 153, 1976)—over 1100 persons have been put to death, all but one by lethal injection. Of these, all but three3 were put to death by state authorities. Despite the large number of homicides committed in the United States each year, only a small fraction of those convicted are sentenced to death. Actual executions, while prominently reported, are few in absolute numbers, at least in comparison to the number of persons sentenced to death. According to latest published statistics of the Department of Justice/Bureau of Justice Statistics (2008), at year-end 2006 there were 3,226 persons on death row in correction facilities across the United States. Of these 1,802 were white, 1,352 were black, and 74 were of other ethnicity. All but 54 were male. (A second moratorium on executions took effect in late 2006. The Supreme Court granted certiorari in Baze v. Rees (SC, 07-5493), in which case the petitioner challenges lethal objection as implicating the Constitution’s Eighth Amendment (prohibiting ‘cruel and unusual’ punishments). The Court heard oral arguments in early January 2008 and will hand down an opinion later this year.) SOCIETAL OBJECTIVES Pro-death penalty groups (e.g., Justice for All) argue that increased reliance on the death penalty will better further the ends of justice. Opponents of the death penalty argue that reliance on such punishment is inconsistent with the values of a modern democracy and violates the normative values, if not the letter, of the Constitution. While the objectives of the two sides are symmetric (in that one wants to retain and the other wishes to dispose of the practice), their perceptions of what is right are asymmetric. Proponents of capital punishment see the death penalty as an exaction commensurate with the enormity of the crime without at the same time being truly retributive. Opponents argue that it is beneath the dignity of modern society (of which government is the agent) to practice what amounts to judicial homicide. Thus, the policy solutions of the protagonists are quite straightforward. Those in favor of capital punishment wish to see it universally accepted and adopted as an available judicial response to particularly heinous crimes. Opponents of the death penalty wish to see it eliminated.4 ARGUMENTS PERTAINING TO DEATH PENALTY APPLICATION Beyond the considerations as resort to retributive justice or, perhaps more accurately, reliance on the death penalty as an alternative to such resort, there are speculative arguments regarding the efficacy of capital punishment in reducing the homicide rate. Assessments of such efficacy face a number of obstacles. In addition, there are deeper, philosophical arguments that transcend such questions as efficacy and deterrence. Deterrence The core difficulty, as in assessing any deterrent program, is counting hypothetical events, ones that never actually occurred. At best, their prospective occurrence can only be inferred by comparison to conditions that actually prevailed at some other time or place. Since conditions are never precisely the same, any conclusions will always lack any absolute or mathematical certitude, however probable they may appear or actually be. There is a substantial body of evidence that capital punishment, when regularly applied, acts as a deterrent to comparable future acts that would otherwise have occurred. While much of the past evidence regarding the efficacy of the death penalty in reducing the incidence of homicide has been anecdotal [see, e.g., U.S., House, Minority report, 2002 passim; U.S., House, Cassell, 1993 passim], a number of recent studies, relying on econometric models, have produced specific numbers demonstrating the effect. At the upper bound, University of North Carolina economist Stephen Layson (quoted in U.S., House, Minority report, 2002) has determined that “on average, each execution in the United States deterred approximately 18 murders.” Applying a different regression analysis model, Naci Mocan (2003) and a group of University of Colorado econometricians determined that “an additional execution generates a reduction in homicide by a magnitude of 5, [whereas] an additional commutation increases homicides by 4 to 5, and an additional removal brings about one additional number. The Emory University study (Dezhbakhsh, 2002) came up with a result closer to Layson. “We … estimate [murders prevented at] 18 with a margin of error of 10 and therefore a corresponding 95% confidence interval of 8 through 28 [lives saved.] This implies that each additional execution has resulted, on average, in 18 fewer murders, or in at least 8 fewer murders [25].” The econometric studies have pointed up a number of specifics which merit discussion. Impact of execution itself It is the actual execution and not the sentence or threat of execution that has the deterrent effect. Dezhbakhsh (2002) contends that simply “having a death penalty law on the books does not deter criminals when the law is not applied… Overall, [of 48 models], the estimated coefficient of the execution probability is negative [that is, deterring,] and significant in 45 of these models and insignificant in the remaining three models. The above robustness checks suggest that our main finding that executions deter murders is not sensitive to various specification choices [27].” However, other studies challenge these findings. In the specific area of murder of police officers, Bailey’s study (1974) conducted some years ago found “no consistent evidence that capital punishment influenced police killings during the 1976-1989 period… Police do not appear to have been afforded an added measure of protection against homicide by capital punishment.” (This of course represents an isolated victim population whose deaths almost certainly occurred under circumstances at considerable remove from those experienced by victims drawn from the general public.) An April 1995 California study conducted by DPIC (2008a) concluded “the average annual increase in homicides was twice as high during years in which the death penalty was carried out than in years during which no one was executed.” A similar study of New York executions (1907-1963) showed the same trend. Time lag versus prompt application Since it is the actual application of punishment and not its judicial imposition that has the deterrent effect, there is a time lag between sentencing and its public impact. This averages about six years. This may explain, at least in part, the above-noted curious U-shaped pattern in black homicides during the 1980s. Three years after capital punishment was reinstated, both the black homicide offender and victim rates began a precipitous decline. As the annual rate of executions slowed, those rates both returned to their 1980 levels by 1993. When the execution pace quickened, those rates began a steady decline to 1966 levels. Homicide trends are locally sensitive While attention is largely given to statewide statistics, the specific impact is quite localized. For example, Texas has executed close to 300 murderers over the past two decades. However, a large plurality of these executions resulted from convictions in Harris County (Houston). According to Sharp (1997), in 1981 Houston experienced 701 murders. Since the resumption of executions (1982) the Houston murder rate has dropped precipitously, with a total of 261 in 1996. A congressional report (2002) contends that, statewide, the Texas homicide rate has dropped from 16.1 per 100,000 to 6.1 per 100,000. The report (2002) concludes, as a practical matter, “almost the entire drop in murder rates over the past decade has occurred in states with capital punishment, with the biggest decrease seen in states that are executing people.” Interstate trend comparisons Comparing criminal behavior and statistics in different states is difficult, at best. States vary significantly in ethnic composition and populations’ social and religious traditions, factors bearing on the overall numbers. However, in states where there are similar populations comparisons can be made with some measure of confidence. The congressional minority report (2002) compared two states (Rhode Island and Delaware) with similar sociological characteristics. “To compare two otherwise similar states over [the 1965-2000] time period, non-death penalty Rhode Island had a murder rate of 1.4 per 100,000. Delaware’s murder rate in that year was 9.0 and peaked at 10.3 in 1974. Yet by 1999, Rhode Island’s murder rate had more than doubled, to 3.6. Meanwhile, Delaware’s murder rate has fallen below Rhode Island’s, to a 1999 rate of 3.2 per 100,000.” Per capita, Delaware has shown itself as the most aggressive state in the Union in carrying out executions for homicide. Death penalty opponents likewise rely on comparisons between states, preferring contiguous ones. A DPIC study (2008) compared four groupings—Iowa/Missouri, Massachusetts/Connecticut; Wisconsin/Illinois; and West Virginia/Virginia—in which the first state in the pair had no death penalty statute and the latter state in the pair relied on capital punishment. In all four examples, the death penalty state had a higher murder rate. (However, it should be noted that despite their being geographically contiguous, these states exhibit substantial differences in ethnic population and local economies.) ‘Judicial toughness’ statuses have little impact Data assembled and analyzed by Dezhbakshsh (2002) indicate that tough sentencing laws—e.g., ‘three strikes’ laws, those requiring 85% of sentence completion by violent offenders—appear to have an insignificant effect in deterring homicide [23]. Whatever the impact, for good or ill, of tough sentencing laws, it is not in this area that professional law enforcement officers expect to see likely reduction in crime, at least incident to deterrent effect. Prospect of judicial error One of the grave considerations in any application of the death penalty is the prospect that an innocent person may unjustly lose his life. At the very least, that same individual, sentenced to life imprisonment, might have the prospect, however remote, of having his innocence confirmed, should new evidence come to light. According to DPIC (2008), over the past 35 years, 127 men have been released from death row, ostensibly with some evidence of innocence or reduced culpability. Proponents of the death penalty are quick to point out that virtually all of these men were actually guilty of the offense of which they were convicted. At issue, proponents contend, were such factors as improper jury instruction, prosecutorial misfeasance (if not malfeasance), and inappropriate application of the death penalty statute to the specific offense in question. DPIC lists several dozen cases in which persons convicted of offenses have been released for have had their sentences reduced upon the presentation of new evidence or the discounting of evidence previously presented at trial. Justice for All, the pro-death penalty organization, has presented contradictory evidence or explanations to refute the DPIC (and other anti-death penalty) contentions. As a practical matter, the arguments on both sides have the character of adversarial proceedings rather than disinterested examination. FINAL THOUGHTS Implications of DNA testing The federal government cannot arbitrarily dictate to the states whether they shall or shall not impose capital punishment. However, it is in the interest of federal lawmakers that such proceedings be conducted with great care. Therefore, insofar as the several states are concerned, the federal government should expand funding in the technology sector to assure the availability of DNA testing where applicable. In the interests of justice, those states that restrict access to such testing should be encouraged (perhaps by means of the threat to reduce certain funding in other areas) to be more open. Furthermore, the federal government should assure that all evidence in death penalty cases be stored in a manner that will permit reexamination at a later date. Determining the effectiveness of DNA testing in capital murder cases may come down to a matter of perspective. If it is extremely effective over the next few years, the result may well be an increase in jury determinations in favor of the death penalty, if only because a category of doubt has been removed. However, any increase in such jury determinations may have no demonstrable relationship to increased access to DNA testing. What may be testable is prosecutorial decision-making. If prosecutors vary their behavior in comparable cases based on the availability of DNA evidence—either exculpatory or incriminating—we may safely assume that it is playing a constructive role. Application of the death penalty in cases related to controlled substance distribution Congress retains the authority to legislate proper federal procedure. There is a body of evidence indicating that almost 90 percent of persons convicted and sentenced to death under the ‘drug kingpin’ statute are black, Hispanic or Oriental. (Perhaps this simply reflects the realities of the controlled substance black market.) However, given such racial disparities, federal authorities (including Congress in its oversight function) should be particularly sensitive to any possible abuse of the law. Furthermore, actual deterrent impact in such cases should be closely examined. While the evidence is contradictory, it is possible that the prospect of execution may simply not be the deterrent to drug-related murders that it may be in other species of homicide. In federal cases, it may well prove to be the case that the death penalty is not the deterrent to the drug trade and its associated homicides that has been purported. However, the evidence is exiguous at best. The federal government has executed only a few such criminals over the past several years, the vast majority being sentenced to life imprisonment. Whether this represents an overly sparing approach to capital punishment or some feckless attempt to ‘do something’ by executing some of the more egregious offenders is problematic. In the event that drug related murders do not decline over the next several years, we may have to consider alternatives beyond the purview of capital punishment (e.g., continued reliance on incarceration or a measure of decriminalization). Works consulted in the preparation of this report Bailey, W. and Peterson, R. (1974), Murder, capital punishment and deterrence: a review of the evidence and an examination of police killings, Journal of social issues, Vol. 50 Dieter, R. C. (1997), Innocence and the death penalty: the increasing danger of executing the innocent, DPIC Death Penalty Information Center [DPIC] (2008), Facts about deterrence and the death penalty (2008a), Brutalization effect of the death penalty Focus on the death penalty: history and recent developments (2001), University of Alaska/Anchorage: Justice center Mocan, H. N. et al. (October 2003), Getting off death row: commuted sentences and the deterrent effect of capital punishment, Research papers, University of Colorado/Denver Homicide rate [worldwide, by country] per 100,000 population (latest available figures) [online statistical information] Stewart, S. D. (2006), The death penalty: public opinion polls, Clark county prosecuting attorney U.S., Congress, House, 103rd Cong., 1st Sess., Committee on the judiciary/Subcommittee on civil and constitutional rights (1993), Claims of innocence in capital cases, Hearing [Prepared statement of Paul G. Cassell] (Access at: http://www.law.utah.edu/faculty/websites/cassellp/TESthousehearing.htm) U.S., Congress, Senate, 107th Cong., 2nd Sess., Committee on the judiciary (2002), The death penalty: an effective deterrent [minority report], The innocence protection act of 2002, S. Rpt. 107-315 to accompany S. 486 (Access at: http://thomas.loc.gov/cgi-bin/cpquery/1?sid=cp107fUKxx2EH&item=1&hd_count=100&r_t=a&boolquery=n&submit4=Search&variant=y&acronym=n&syndict=n&spq=n&sort_by_docid=n&d_q=on&dbname=cp107&maxdocs=1&word_phrase=death+penalty&attr=200&q_type=2&report=sr315.107&sel=TOC_173893&) U.S., Department of Justice/Bureau of Justice Statistics [BJS] (2008), Capital punishment statistics [online website] (2007), Homicide trends in the United States [online website] U.S., Supreme Court (2002), Atkins v. Virginia, 536 U.S. 304 (1972), Furman v. Georgia, 408 U.S. 238 (1976), Gregg v. Georgia, 428 U.S. 153 (2005), Roper v. Simmons, 543 U.S. 551 (1976), Woodson et al. v. North Carolina, 428 U.S. 280 Read More