Quest For Abolition Essay Research Paper
Quest For Abolition
Critical Issues In Policing
Michael O Brien
In 1972 the Supreme Court declared that under the existing laws the imposition and carrying out of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. (Furman v. Georgia 408 U.S. 238) The majority of the Court concentrated it s objections on the way death penalty laws had been applied finding the result so harsh freakish and arbitrary as to be constitutionally unacceptable. Making the nationwide impact of it s decision unmistakable the Court summarily reversed death sentences in the many cases then before it which involved a wide range of state statutes crimes and factual situations.
But within four years after the Furman decision more than 600 persons had been sentenced to death under new capital-punishment statutes that provided guidance for the jury s sentencing discretion. These statutes typically require a two-stage trial procedure in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.
In July 1976 the Supreme Court moved in the opposite direction holding that the punishment of death does not invariably violate the Constitution. The Court ruled that these new statutes contained objective standards to guide regularize and make rationally reviewable the process for imposing the sentence of death. (Gregg v. Georgia U.S. 153) Thus the states as well as Congress have had for some years constitutionally valid statutory models for death penalty laws and more than three dozen state legislatures have enacted death-penalty statutes patterned after those the Court upheld in Gregg. In recent years Congress has enacted death penalty statutes for peacetime espionage by military personnel and for drug-related murders.
Executions resumed in 1977 and by the early 1990 s nearly three thousand persons were under sentence of death and more than one hundred eighty had been executed.
Despite the Supreme Court s 1976 ruling in Gregg v. Georgia the ACLU continues to oppose capital punishment on moral and practical as well as on constitutional grounds:
Capital punishment is cruel and unusual. It is a relic of the earliest days of penology when slavery branding and other corporal punishments were commonplace. Like those other barbaric practices executions have no place in a civilized society.
Opposition to the death penalty does not arise from misplaced sympathy for convicted murders. On the contrary murder demonstrates a lack of respect for human life. For this very reason murder is unimaginable and any policy of state-authorized killings is immoral.
Capital punishment denies due process of law. Its imposition is arbitrary and irrevocable. It forever deprives an individual of benefits of new evidence or new law that might warrant the reversal of a conviction or the setting aside of the death sentence.
The death penalty violates the constitutional guarantee of the equal protection of the laws. It is applied randomly at best and discriminatorily at worst. It is imposed disproportionately upon those whose victims are white on offenders who are people of color and on those who are themselves poor and uneducated.
The effects of the death penalty laws conceded by the Supreme Court in the early 1970 s have not been appreciably altered by the shift from unfettered discretion to guided discretion These changes in death sentencing have proved to be largely cosmetic. They merely mask the impermissible arbitrariness of a process that results in an execution.
Executions give society the unmistakable message that human life no longer deserves respect when it is useful to take it and that homicide is legitimate when deemed justified by pragmatic concerns.
Reliance on the death penalty obscures the true cause of crime and distracts attention form the social measures that effectively contribute to its control. Politicians who preach the desirability of executions as a weapon of crime control deceive the public and mask their own failure to support anti-crime measures that really work.
Capital punishment wastes resources. It squanders the time and energy of courts prosecuting attorneys defense counsel juries and courtroom and correctional personnel. It unduly burdens the system of criminal justice and it is therefore counterproductive as an instrument for society s control of violent crime. It epitomizes the tragic inefficacy and brutality of the resort to violence rather than reason for the solution of difficult social problems.
A decent and humane society does not deliberately kill human beings. An execution is a dramatic public spectacle of official violent homicide that teaches the permissibility of killing people to solve social problems the worst possible example to set for society. In this century governments have too often attempted to justify their lethal fury by the benefits such killing would bring to the rest of society. The bloodshed is real and deeply destructive of the common decency of the community; the benefits are illusory.
Two conclusions buttress my entire case: Capital punishment does not deter crime and the death penalty is uncivilized in theory and unfair and inequitable in practice.
The argument most often cited in support of capital punishment is that the threat of execution deters capital crimes more effectively than imprisonment. This claim is plausible but the facts do not support it. The death penalty fails as a deterrent for several reasons.
(1)Any punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions.
Only a small proportion of first-degree murders is sentenced to death and even fewer are executed. Although death sentences since 1980 have increased in number to about 250 per year (1) this is about one percent to all homicides known to police. Of all those convicted on a charge of criminal homicide only 2 percent –bout 1 in 50– are eventually sentenced to death. (3)
The possibility of increasing the number of convicted murders sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 (Woodson v. North Carolina 428 U.S. 280)
Considerable delay in carrying out the death sentence is unavoidable given the procedural safeguards required by the courts in capital cases. Starting with empanelling the trial jury murder trials take far longer when the death sentence is involved. Post-conviction appeals in death-penalty cases are far more frequent as well All these factors increase the time and cost of administering criminal justice.
The sobering lesson is that we can reduce such delay and costs only be abandoning the procedural safeguards and constitutional rights of suspects defendants and convicts with the attendant high risk of convicting the wrong person and executing the innocent.
(2) Persons who commit murder and other crimes of personnel violence either premeditate them or they do not. If the crime is premeditated the criminal ordinarily concentrates on escaping detection arrest and conviction. The threat of even the severest punishment will not deter those who expect to escape detection and arrest. If the crime is not premeditated then it is impossible to imagine how the threat of any punishment could deter it. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol when logical thinking has been suspended. Persons heedless of the consequences to themselves as well as to others inflict Impulsive or expressive violence.
Gangland killings air piracy drive-by shootings and kidnapping for ransom are among the graver felonies that continue to be committed because some individuals think they are too clever to get caught. Political terrorism is usually committed in the name of ideology that honors its martyrs; trying to cope with it by threatening death for terrorists is futile. Such threats leave untouched the underlying causes and ignore the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.
The attempt to reduce murders in the illegal drug trade by the threat of severe punishment ignores this fact: Anyone trafficking in illegal drugs is already betting his life in violent competition with other dealers. It is irrational to think that the death penalty a remote threat at best will deter murders committed in drug turf wars or by street level dealers.
(3) If however severe punishment can deter crime then long term imprisonment is severe enough to cause any rational person not to commit violent crimes. The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence in certain cases.
(a)Death penalty states as a group do not have lower rates of criminal homicide than non-death penalty states. During the 1980 s death penalty states averaged an annual rate of 7.5 criminal homicides per 100 000; abolition states averaged a rate of 7.4.
(b) Use of the death penalty in a given state may increase the subsequent rate of criminal homicide in that state. In New York for example between 1907 and 1964 692 executions were carried out. On the average over this 57 year period one or more executions in a given month aided a net increase of two homicides to the total committed in the next month.
(c) In neighboring state one with the death penalty and the others without the one with the death penalty does not show consistently lower rate of criminal homicide. For example between 1972 and 1990 the homicide rate in Michigan (which has no death penalty) was generally as low or lower than the neighboring state of Indiana which restored the death penalty in 1973 and since then has sentenced 70 persons to death and carried out 2 executions.
(d) Police officers on duty do not suffer a higher rate of criminal assault and homicide in states that have abolished the death penalty than they do in death penalty states. Between 1973 and 1984 for example lethal assaults against police were not significantly more or less frequent in abolition states than in death penalty states. There was no support for the view that the death penalty provides a more effective deterrent to police homicides than alternative sanctions. Not for a single year was evidence found that police are safer in jurisdictions that provide for capital punishment.
(e) Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death penalty states. Between 1984 and 1989 seventeen prison staff were murdered by prisoners in ten states; of these murders 88 percent (15 of 17) occurred in death penalty states just as about 88 percent of all the prisoners in those ten states were in death penalty states. Evidently the threat of the death penalty does not even exert an incremental deterrent effect over the lesser punishment in the abolitionist state.
Actual experience establishes these conclusions beyond a reasonable doubt. No comparable body of evidence contradicts them.
Three investigations since Furman using methods pioneered by economists reported findings in the opposite direction. Subsequently several qualified investigators have independently examined these claims and all have rejected them. The National Academy of Sciences in its thorough report on the effects on criminal sanctions on crime rates concluded: It seems unthinkable to us to base decisions on the use of the death penalty on such frangible and uncertain results. We see too many plausible explanations for these findings other than the theory that capital punishment deters murder.
Furthermore cases have been clinically documented where the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome persons who wanted but feared to take their own life and committed murder so that society would kill them.
It must of course be conceded that inflicting the death penalty guarantees that the condemned person will commit no further crimes. This is an incapacitative not a deterrent effect of the executions. Furthermore it is too high a price to pay when studies show that very few convicted murders ever commit another crime of violence. A recent study examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to life by the Supreme Court s ruling in Furman. The research showed that 6 had committed another murder. But the same study showed in 4 other cases; an innocent man had been sentenced to death.
Recidivism among murders does occasionally happen. But it happens less frequently than most people believe; the media rarely distinguish between a paroled murder who murders again and other murders who have a criminal record but not for homicide.
There is no way to predict which convicted murders will kill again. Only executing all those convicted of criminal homicide could prevent murders. Such a policy is too inhumane and brutal to be taken seriously. Society would never tolerate dozens of executions daily yet nothing less would suffice. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.
Constitutional due process as well as elementary justice require that the judicial functions of trial and sentencing be conducted with fundamental fairness especially where the irreversible sanction of the death penalty in involved. In murder cases (since 1930 99 percent of all executions have been for this crime) there has been substantial evidence to show that courts have been arbitrary racially biased and unfair in the way in which they have sentenced some persons to prison but others to death.
Racial discrimination was one of the grounds on which the Supreme Court relied in Furman in ruling the death penalty unconstitutional. Half a century ago Gunnar Myrdal in his classic American Dilemma (1944) reported that the South makes the widest application of the death penalty and African American criminals come in for much more then their share of the executions. Statistics confirm this discrimination only it is not confined to the South. Between 1930 and 1990 4 016 persons were executed in the United States. Of these 2 129 (or 53 percent) were black. For the crime of murder 3 343 were executed; 1 693 (or 51 percent) were black. During these years African Americans were about 12 percent of the nations population.