Capital Punishment

The recent news about a judge postponing the execution of Albert Brown at San Quentin State Prison in Marin County just north of San Francisco on a technicality got me to rethinking my view of capital punishment. Brown, who was convicted of murdering a young California girl in 1980, has been on death row for as long as 28 years. This is crazy! Obviously something is very wrong with our current system of criminal justice. Should we retain capital punishment in this country, or make other changes with our system?

Currently 15 states in this country, including New York, have abolished the death penalty, while the other 35 states still permit it, and that includes California and Texas among the largest states. In 2002 the U. S. Supreme Court held that those judged to be mentally retarded while committing their crimes could not be executed, and in 2005 the Court held that juveniles under 18 when they committed their crimes also could not be executed. However, all others could be, depending on the law of the state in which the crime was committed.

It's interesting that as many as 137 countries have abolished capital punishment altogether and this includes every country in western Europe, Canada, Australia and New Zealand. Also noteworthy, of those much smaller number who still have capital punishment, the three countries who have had most executions are China (by far the highest number), Iran and Saudi Arabia, followed by the U. S., Pakistan and Iraq.

A majority of Americans still favor retaining capital punishment, but my understanding is that this majority has declined in recent years, probably as a result of news coming out that quite a few prisoners on death row in various states have been found innocent as a result of new DNA evidence.

Proponents of retaining capital punishment usually cite deterrence, better closure for the family and close friends of those killed, making sure that a killer cannot kill again, and elevation of the value of life in our society. Sometimes they also make economic arguments relating to costs of keeping prisoners on death row. Another perhaps more compelling argument is that executions can lessen the rising concern with overcrowded prisons, requiring new unaffordable prisons to need to be constructed.

Those who favor abolition point to a long list of reasons. The most compelling, it seems to me, is that quite a few prisoners on death row have been found to be innocent, especially as result of new DNA evidence, but also recantation of testimony by key trial witnesses. Since 1973 the number of wrongfully convicted American prisoners released from death row totaled 138! That's a lot of innocent people who were close to being executed. Several people have been executed and later found out to have been innocent! That should, of course, never happen!

The other two most compelling arguments have to do with deterrence and relative costs. Scientific studies have consistently failed to demonstrate that executions deter people from committing crime any more than lengthy prison sentences, especially sentences where there is no possibility of any parole. From the evidence I've seen, the total costs of death penalty cases are substantially higher than non-death penalty cases, primarily because of the much higher costs of lawyers and trial expenses with death penalty cases, especially due to the generous rights of appeal that we have in our system. In a 2003 legislative audit conducted in Kansas it was 70% higher, in Tennessee it was estimated at 48% higher, and in California a 2008 analysis by a credible commission concluded even more convincing results.

There is also a serious social justice issue to be considered. The quality of legal representation received and the jurisdiction in which the crime is committed seem too often to be more determining factors than the actual facts of the crime in death penalty cases. Almost all defendants in capital cases cannot afford their own attorneys. In a high percentage of cases the court appointed attorneys are overworked, underpaid and less experienced than those engaged by middle class or upper income defendants.

Life in prison without parole is a sensible alternative to the death penalty. It's a lot less expensive for the taxpayers and leaves open the possibility, no matter how slight, of prisoners being released if later found innocent. The overcrowding in our prisons is a real concern, but I think that can be ameliorated by other means, such as deportation of many of the illegal immigrants in our prisons, releasing some of our non-violent prisoners into community service programs, and changing some of our sentencing guidelines.