The Death Penalty: Sober Second Thoughts about the Ultimate Weapon in the War on CrimeBy Stephen B. Bright
Vol. 22, No. 3, 2000 pp. 8-10, 20
The United States is one of the few industrialized nations in the world that retains the death penalty. Today, four nations--China, Iran, the Congo, and the United States--account for 80 percent of the executions that occur in the world each year. Thirty-eight countries have abandoned the death penalty since 1985. Only four countries that did not have the death penalty in 1985 have adopted it since then and one of those, Nepal, has since abolished it.
Only one other NATO country, Turkey, has the death penalty. It has not carried out an execution since 1984 and is expected to soon abandon capital punishment in order to join the Council of Europe, which does not allow its members to have capital punishment.
The United States is one of a very few countries that executes people who were children-under age eighteen-at the time of commission of their crimes. The United States and Somalia are the only countries that have not ratified the United Nations Convention of the Rights of the Child, which prohibits the execution of children.
Thirty years ago it appeared that the United States would, like much of the rest of the world, also abandon capital punishment. The death penalty was seldom used in the 1960s, and the United States Supreme Court declared it unconstitutional in 1972 because it was arbitrarily imposed. However, after the Supreme Court's decision, a number of states passed new capital punishment statutes that were upheld by the Court in 1976.
Today, 38 states, the federal government, and the military have laws authorizing the death penalty. More than 3,600 men, women, and children are waiting to be injected, electrocuted, gassed, shot, or hung. The number of executions carried out has steadily increased during the 1990s. Hundreds of people have been killed by the states since the Supreme Court's decision in 1976 allowing the resumption of capital punishment. More than 90 percent of those executions have taken place in the nation's "death belt," the states of the old Confederacy.
Capital punishment is one of the tragic legacies of the slavery, racial oppression, and racial violence in American history. It has also been the ultimate weapon in the "war on crime," a war the United States has been fighting against its own citizens for more than thirty years. The proponents of this war have assured us that we are demonstrating our moral outrage, that we are showing that we are tough on crime, and that those we are killing are from another species; they are animals, predators--some children are even described as "superpredators." As in a war against another nation, the proponents describe the enemy as a faceless group so evil and so lacking in humanity, feelings, and worth that their elimination is justified.
But, as in all wars, the casualties of the war on crime are human. As in all wars, there are innocent victims. Eighty-seven people condemned to die have been released in the last twenty years after their innocence was clearly established. Others have had their death sentences commuted to life imprisonment without the possibility of parole because of doubts about their guilt, and some have been executed despite questions of innocence. U.S. Representative Bill McCollum of Florida has stated that the risk of executing the innocent must be accepted if we are to have capital punishment. Those responsible for America's system of justice have gone from the concept that it is better that the guilty go free than that an innocent person be convicted, to the notion that innocent people who may be executed are acceptable casualties in the war on crime.
The American Bar Association called for a moratorium on the death penalty in 1997 because of the poor quality of legal representation provided to the poor, racial discrimination in the infliction of the death penalty, and its imposition upon the mentally ill, the mentally retarded and against those who were children at the time of their crimes.
George Ryan, the Republican governor of Illinois, declared a moratorium on executions in his state after the
Page 9exoneration of thirteen people who had been condemned to die, one more then the twelve who have been put to death since the death penalty was reinstated there in 1977. Three were freed by efforts of journalism classes at Northwestern University.
Legislation has been introduced in both the U.S. House and Senate providing for a moratorium on executions. A bipartisan group of Senators and Representatives have introduced the Innocent Protection Act in Congress to ensure DNA testing for the wrongfully convicted and better counsel for those facing death.
But the condemnation of innocent people to death is only the most egregious and pounced example of failure of courts to deliver on the promises of fairness, equality and justice. The courts are the institutions least affected by the Civil Rights Movement. People of color have been largely excluded as judges, jurors, prosecutors, and lawyers. The decisions made in the courts reflect the racial biases of the dominant group at every step of the process from police stops to imposition of sentence.
Poor people accused of crimes often receive only perfunctory representation by court-appointed lawyers who are denied the resources required to conduct necessary investigations and present a defense. In Texas courts do not even require that defense counsels remain awake during trial. The lawyer representing George McFarland, who is now on death row, repeatedly fell asleep and snored during his trial in Houston.
Texas' highest criminal court--made up of judges chosen in partisan elections, some of who ran on platforms supporting the death penalty--upheld the death sentences in Mr. McFarland's trial and tow others in which defense attorneys fell asleep. One of those defendants, Carl Johnson, was executed in 1995.
Some have suggested that the release of innocent
Page 20people proves that the system is working. But a court system which destroys innocent people by sending them to death row for years for crimes they did not commit is not working. A system whose most grievous mistakes are revealed not by prosecutors, police, judges, or lawyers, but by undergraduate journalism students is not working.
In truth, the criminal justice system is not working at any level. But death is unique in its enormity, severity, degradation, finality, and violence. Because death is different, a moratorium is required before more dispatched to execution chambers in assembly-line fashion in Texas and, increasingly, in other states as well.
The use of capital punishment speaks volumes about the kind of society we are and want to be. The Constitutional Court of South Africa found no place for capital punishment in the vision of a society which, in the words of one member of the Court, was moving from hate to "an appreciation of the need for understanding" and from vengeance to reconciliation. It is an example that the United States, with its long history of racial violence and oppression, may want to follow.
Stephen B. Bright is the director of the Southern Center for Human Rights in Atlanta and teaches courses on capital punishment at the law schools at Yale, Harvard, and Emory universities.