America’s
death-penalty lottery
© 2000 The Economist
THIS
year around 100 Americans will be poisoned, hanged,
gassed, shot or electrocuted. In a country where some
17,000 people a year are murdered, this would not seem
exceptional. But the killer in these 100 cases will be
the state. The number of executions in the United
States has been rising, spurred on by laws curtailing
the number of years felons can wait on death row (see article).
It is hard to think of any well-known politician in
America who disapproves of a punishment that two out
of three Americans support.
Yet just as this process has been
accelerating, doubts about its workings have
increased. In the past 30 years, 87 people on death
row have been set free. Last week, George W. Bush
announced his first stay of execution, pending DNA
tests. Another Republican governor, George Ryan of
Illinois, has announced a moratorium, pending an
investigation of the judicial system.
These small signs of a rethink will
be welcomed by all those people, including The
Economist, who do not share the affection for the
death penalty held by so many Americans. To those
outside the United States, that country’s love of
executions is surprising: surprising to find such a
tolerant place in the same camp as China, Iran, Saudi
Arabia and Congo (the only four countries to execute
more people); surprising to find such a religious
place addicted to a habit that most religious leaders
abhor; surprising, too, to find the crucible of
liberty decried in so many international reports on
human rights.
Land of liberty
One reason why America has kept the
death penalty is an admirable one: because it is so
democratic. In virtually every other country where the
death penalty has been removed it has been done by the
political establishment in the face of polls showing
support for it. Most Americans believe, in the words
of John Stuart Mill, one of Britain’s great
philosophers of liberty, “that to take the life of a
man who has taken that of another is [not] to show
want of regard for human life. On the contrary, [it
shows] most emphatically our regard for it, by the
adoption of a rule that he who violates that right in
another forfeits it for himself, and that while no
other crime that he can commit deprives him of his
right, this shall.”
Conflicts about the proper respect
for life can never be resolved; there is also no solid
evidence about the death penalty’s effectiveness as
a deterrent. But both sides can agree that if such a
punishment is to exist the courts must take the most
painstaking care to establish the guilt of the accused
beyond any reasonable doubt. As Mill himself conceded,
there is “one argument against capital punishment
which I cannot deny to have weight: that if by an
error of justice an innocent person is put to death,
the mistake can never be corrected.” It is here that
America’s courts are failing.
Since 1976 (when the death penalty
was reintroduced), America has executed 640 people
(due to be 642 by the time you read this). So the 87
people exonerated after being sentenced to death
amount to one reprieve for every seven killed. No one
knows for sure whether innocent people have been
killed. But there is surely a disturbing likelihood
that this has happened. There are half a dozen cases
in which people have been executed despite doubts
about their guilt being expressed even by the Supreme
Court. In 1993, Leonel Herrera was executed in Texas
even though a former judge submitted an affidavit that
another man had confessed to the crime.
Many examples of wrongful
convictions have been discovered not by higher courts
but by dogged journalism students. Such freelance
rescues mitigate, but do not justify, the failure of
the criminal justice system to reverse its own
mistakes. And these are legion. The system—courts,
prosecutors and governors—is influenced by politics
(it seems unlikely that Ricky McGinn would have
received his stay of execution had Mr Bush not been
running for president); prejudice (blacks are
sentenced to death out of all proportion to their
numbers); and, perhaps most important, plain
inconsistency.
But not always justice
America has had hundreds of
thousands of murder trials since 1976. Most of them
were potentially capital cases. In practice, the
public prosecutors sought the death penalty in fewer
than 5% of the cases. Facing experienced and diligent
defence lawyers, prosecutors rarely seek the ultimate
punishment. But when they do so, it tends to be not
because of the severity of the crimes committed, but
because the defence lawyer looks easy game. The death
penalty is also more common in some places than
others: Texas imposes it about 40 times as often as
New York, a state of comparable population and with
similar crime problems.
This random quality of capital
punishment significantly undermines Mill’s notion
that the death penalty is justified, because it—and
it alone—pays proper respect to the importance of
human life. In America the state’s power over life
and death is exercised neither neutrally nor
consistently.
Yet this lottery is not beyond
improvement, in three ways. First, all states should
give death-row inmates dispensation to have DNA tests.
Eight of the miscarriages of justice since 1982 have
been brought to light by the development of DNA tests
after the original convictions. But only New York and
Illinois grant all death-row prisoners the right to
have DNA tests, and most have strict time limits for
the presentation of new evidence. Clyde Charles spent
nine years trying to persuade the Louisiana courts to
let him have a DNA test done. When they relented, the
test exonerated him.
But even if this were done, DNA
evidence, especially in murder cases, is often
unavailable or inconclusive. A more vital problem is
the gross inadequacy of defence counsel. Most people
accused of murder get a lawyer appointed by the court.
A few fall asleep during the trial; others turn up
drunk; a horrifying number lack any experience in
murder trials.
New York state has set up a special
Capital Defence Unit with experienced lawyers who
specialise only in capital cases. Other states should
copy the idea—and require that defendants in murder
trials have at least two lawyers drawn from the pool.
And they should pay them properly; some states pay
just $11 an hour. A sensible bill that embodies many
of these ideas, sponsored by Senator Patrick Leahy, is
now before Congress. Crucially, it offers federal
funds to states that embrace these reforms: at present
many small counties can barely afford the cost of a
murder trial.
Third, the courts have to deal with
prosecutorial misconduct. At present, prosecutors make
up their own minds how to fulfil the legal obligation
to hand over to the defence evidence that is
“relevant” and “exculpatory”. In cases
involving the death penalty, they should open all
their files to the defence without reservation. This
would force the prosecution to seek the death penalty
only where it had incontrovertible proof. And until
all these measures are put in place, American states
should follow the example of Illinois and impose a
moratorium on further executions. At the moment, too
many judgments are open to “reasonable doubt”. If
an airline crashed once for every seven times it
reached its destination, it would surely be suspended
immediately.
There is, of course, a paradox here.
An execution system that killed only well-defended,
clearly guilty people would be harder to dismantle,
easier to defend. No matter. It would be fairer than
the current lottery. And America, surely, stands for
justice as well as for liberty.
Related Links:
The Death Penalty Information
Center reports on state-by-state
executions to date. Amnesty International
summarizes
death-penalty policies around the world.
Death
Row Fact Sheet
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