Death Nation: The Experts Explain American Capital Punishment

Transcription

1 Death Nation: The Experts Explain American Capital Punishment PREFACE For a long time, like most Americans, I thought of myself as a supporter of capital punishment. I didn t see anything wrong with using the most severe punishment to rid the nation of the most severe criminals. In fact, I won debates in school arguing in favor of capital punishment. I recall a debate in a 6 th grade Social Studies class in my St. Petersburg, Florida middle school where my opponent argued that electrocution was cruel and unusual punishment. He had glossy posters that illustrated the effects of electrocution via Ole Sparky (Florida s electric chair) on the human body. At the age of only 11 years, my response seems even now to be somewhat witty: All my opponent has demonstrated is that the electric chair is undeniably messy. 1 This has nothing to do with whether capital punishment is right or wrong. Somehow I remember I said it with a smirk. And I won the debate. In all likelihood, given their young age and unfamiliarity with the realities of capital punishment, most of my classmates were already in favor of capital punishment, too. Support for capital punishment at an emotional level is a no-brainer. My discussions about the death penalty since my middle school years taught me that supporters of capital punishment are not easily swayed, even with graphic descriptions of what happens when a human being is put to death. We are talking about convicted murderers after all. 2 i

2 Up until graduate school, I really did not spend much time thinking about the death penalty, even though I majored in Criminology and Criminal Justice at the Florida State August 2006 University. 3 Most Americans probably do not spend much time thinking about capital punishment either. And why should they? Capital punishment is so rarely used that the likelihood it will directly affect any given person in any given year is slim to none. Some numbers bare this out. Between 1977 and 2004, there were 558,745 murder and nonnegligent manslaughters in the United States, or an average of 19,955 killings per year. 4 During this time, 6,806 people were sentenced to death, or an average of 243 death sentences per year. Further, 944 people were executed, or an average of 33.7 executions per year. This means only 1.3% of killings from 1977 to 2004 led to death sentences, and only 0.17% of killings led to an execution (so far). 5 Not all people sentenced to death end up on death row. And most are not executed. The odds of receiving a death sentence and ending up on death row or being executed for a murder or nonnegligent manslaughter between 1977 and 2004 was only 0.8%. 6 If you added in all the deaths caused by corporate crimes, then it becomes clear that American states kill a minuscule, seemingly meaningless fraction of all killers through capital punishment. 7 While it is true that only those that commit death eligible murders can be sentenced to death and be executed, the likelihood that we will execute any given aggravated murderer is far less than 5%. 8 For example, one study showed that the death sentencing rate, or the ratio of death sentences in a state to the number of murders in that state, between the years of 1977 and 1999, was (meaning 2.2% of murders led to death sentences). 9 And, the death sentencing rate, which is the number of death sentences divided by the population, was per 100,000 ii

3 people in 2003, the lowest rate since the reinstatement of the death penalty in This means that, controlling for population size, death sentences have generally gotten rarer in the United States. The point is that the death penalty is rarely administered in the United States. Figure A shows the average number of murders in the United States in the 1990s, versus the average number of arrests for murder, average number of prosecutions for murder, average number of homicide convictions, an estimate of the average number of death-eligible defendants, average number of death sentences imposed, and average number of executions per year. 11 With each step of the criminal justice process, from the commission of the crime, until the final disposition of the case, individuals are screened out in a process called filtering, which occurs for several reasons. 12 This is the most important reality of American capital punishment it is extremely rare relative to the number of murders that occur each year in the United States. The rarity of capital punishment may lead one to question whether an entire book on the subject is called for. It is. And the reason is simple. The more rarely we use the punishment, the less likely it will achieve its goals of retribution, incapacitation, and deterrence. That is, the less we execute murderers, the less we get even with murderers, achieve justice for murder victims, and the less able we are to prevent future murderers by ending the lives of murderers and causing fear in would-be murderers. Clearly, the death penalty in the United States of America has become so rare that even supporters (who also know about the rare nature of the punishment) are concerned about our ability to achieve our goals through capital punishment. And this says nothing about the many alleged serious problems with the application of iii

4 capital punishment in the United States. Critics assert that America s death penalty system is plagued by race, class, and gender biases, that it is excessively costly and inefficient, and that it is occasionally used against the innocent. 13 Further, much of the world views America s continued practice of capital punishment with much disdain and even disbelief. The cover on this book with Uncle Sam standing in a dark corner, as if ashamed is not meant to suggest that Americans should be ashamed of being the only industrialized Western nation to still practice the death penalty. Instead, it is meant to suggest that citizens of many other nations, including most of our allies, view America s continued capital punishment practice in a negative light. After all, the United States of America is supposed to stand as a beacon to the world a place that exists with liberty and justice for all. To some, the reality of capital punishment, as actually practiced in the United States, flies in the face of liberty and justice. To others, America s death penalty, as is actually applied, is nothing more than a farce, an expensive, political folly that if it was not so serious would be laughable. But, are these accurate characterizations of our death penalty system? Apparently, Americans are either unaware or unmoved by such sentiments. In spite of growing world-wide rejection of the death penalty, most Americans say they still support capital punishment. For example, an October 2005 Gallup poll found that 64% of Americans say they favor the death penalty for those convicted of murder (although this number drops to between 50% and 55% when respondents are given the option of life imprisonment without the possibility of parole). 14 Is the death penalty plagued by significant problems, or is it an effective non-problematic iv

5 punishment that should enjoy the support of a majority of Americans? The primary goal of this book is to answer this question to discover and present an honest examination of the realities of capital punishment in America. I achieve this through a survey of expert opinion about the realities of American capital punishment. I attempt to show what scholarly experts think about capital punishment in the United States. Do the experts agree that there are significant problems with the administration of capital punishment, or do they feel the penalty is fair, efficient, effective, and consistent with liberty and justice? Additionally, do experts support capital punishment or alternative punishments such as life imprisonment without the possibility of parole? Finally, why, according to the experts, do states in the United States of America continue to practice capital punishment, even though they do so only rarely? Using empirical evidence, I answer each of these questions. Throughout Death Nation, I emphasize the empirical realities of capital punishment in the United States. The focus is on how the death penalty is actually practiced in America, not on some ideal notion of capital punishment. For reasons better explained later in the book, I de-emphasize moral and philosophical issues of capital punishment in hopes of establishing some key empirical truths of the death penalty as it is actually carried out within the United States. As my colleague and friend Robert Bohm (who also happens to be a leading capital punishment scholar) once said to me: The death penalty does not exist in theory, but exists in reality. And that is how capital punishment should be evaluated, not in some idealized form but instead as it is actually practiced in the United States. v

6 WHY DEATH NATION? Some might wonder why I chose the title Death Nation for this book. After all, there is not a national system of capital punishment in the United States, nor is there an American pattern or single national profile. 15 Our system of federalism has allowed huge variation in death penalty practice across states. This led capital punishment scholar Franklin Zimring to conclude: There are huge differences in policy and in execution risk among the states of the Union, differences so great that it seems foolhardy to talk of an American policy on the death penalty. 16 In spite of this truism, when people think of the death penalty, they typically do not think of the tremendous variation in policies across states. In my experience teaching classes in criminal justice and on the death penalty, students are unaware that 14 states do not have capital punishment laws on the books and that most states rarely carry out executions (the 14 states without capital punishment include Kansas and New York, whose state Supreme Courts recently struck down their death penalty statutes). Instead, they are either supportive or not supportive of continuing with executions anywhere within the United States of America. This is one reason I chose the title Death Nation for the book. Because 36 states, the federal government, and the US military allow executions, we are a Death Nation one of only 73 countries that practices executions in the world (as opposed to 123 that do not). 17 Further, we are in the top five nations in the world in terms of the number of executions we carry out each year. The Death Penalty Information Center (2006) explains: In 2005, there were at least 2,148 executions in 22 countries around the world. China, Iran, Saudi Arabia, and the United States were responsible for 94 percent of these known executions. 18 As shown in Table vi

7 A, China led with at least 1,770 executions, followed by Iran (with at least 94), Saudi Arabia (with at least 86), and the United States (with 60). The remaining top nine countries included Pakistan (with 31), Yemen (with 24), Vietnam (with 21), Jordan (with 11), Mongolia (with 8), and Singapore (with 6). That we are in the same company as some of world s leading human rights abusers is another reason why I chose the cover image for this book. Prior to the U.S. invasion and occupation of Iraq which led to the removal of Saddam Hussein from power Iraq also ranked in the top ORGANIZATION OF THE BOOK The book is organized into six chapters. In Chapter 1, I discuss important issues in America s history of capital punishment, including key events, differences in the capital punishment systems of local, state, and federal governments (and the military), and different methods of execution in the United States. In this chapter, I cover some of the most important basics of the death penalty, which forms a foundation for understanding issues discussed in later parts of the book. In Chapter 2, I examine death penalty law, including laws that define acts as capital offenses, and court cases that specify how and when the death penalty is appropriate and can be used. In this chapter, I give special focus to four U.S. Supreme Court cases that most shaped America s capital punishment practice, focusing on why the Supreme Court has not been consistent in its capital punishment jurisprudence over the years. In Chapter 3, I discuss the methodology of the study of capital punishment experts that forms the heart of the book. Here, I discuss what I did, how I did it, and identify and discuss vii

8 limitations of the data. Perhaps the most important thing in this chapter is the discussion of how I think the death penalty (and all criminal justice policies) should be evaluated. I also include a copy of the survey instrument used in the study. In Chapters 4 through 6, I present the findings of the survey of death penalty experts. In Chapter 4, I lay out arguments in favor of capital punishment and discuss the justifications for capital punishment vengeance & retribution, incapacitation, and deterrence. In this chapter, I provide a brief summary of each justification for capital punishment, identify the main issues of contention, and present the views of the experts with regard to whether capital punishment achieves its goals. Finally, I offer my own fact check of the experts based on the available empirical evidence. In Chapter 5, I lay out arguments against the death penalty and discuss alleged problems with American capital punishment arbitrariness and discrimination, innocence (mistaken convictions & executions), and other problems (including politics, problems with capital juries, and costs). In this chapter, I provide a brief summary of each alleged problem with capital punishment, identify the main issues of contention, and present the views of the experts with regard to whether capital punishment is plagued by such problems. Finally, I again offer my own fact check of the experts based on the available empirical evidence. Finally, in Chapter 6, I discuss issues related to American opinion on the death penalty and expert opinion of capital punishment, including whether the experts favor or oppose capital punishment, what sentence they feel is most appropriate for convicted murderers, and whether they support a moratorium on executions and complete abolition of the death penalty. After identifying policies justified by the findings of the book and barriers to bringing about these viii

9 policies, I examine the issue of why capital punishment persists in America and make an effort to predict the future of America s death penalty experience. Will capital punishment continue to be practiced indefinitely, or will America s death penalty experiment soon end? ACKNOWLEDGMENTS This book would not have been possible without the assistance and support of several people. First and foremost, I want to thank my wonderful wife, Holly, who supported me through the research and writing of this book. It is not a stretch to say that every minute I spent conducting the research reported in this book and writing the book is a minute I could have spent helping her with other important things including caring for my two amazing children, Bella and Marley. Second, I want to thank my supportive family the Robinsons (especially Mom and Brandt), Chiodos, Johnsons, Clements, and Kings for your encouragement and curiosity of my work. Nothing I do would be possible without you. Third, I want to thank Frank Mortimer of Prentice Hall who offered me a contract on the spot one morning at breakfast after hearing about my planned book. It has been a true pleasure writing books for the Prentice Hall team and it s an honor to be part of your list. I also want to say thank you to Sarah Holle at Prentice Hall who handled all the behind the scenes issues related to the production of this book. Thank you for sticking with the project and making it a reality! Fourth, I want to thank Dr. Richard Dieter of the Death Penalty Information Center whose responses to my queries regarding my proposed study were helpful as I finalized my plans for this study. Also, his web site remains an enormous resource for those of us who need ix

10 information about capital punishment. I relied on information from the web site throughout the book. Fifth, I offer my sincere appreciation to Bob Bohm and Stuart Banner. Bohm s thorough text on capital punishment has been crucial to my thinking about the death penalty, and his treatment of death penalty law has also been quite helpful. Banner wrote an excellent book on the history of capital punishment in the United States. Banner s work allowed me to better understand vital realities of America s death penalty experience, often through the stories of the real people who lived it. Sixth, I owe the reviewers of this book a great thanks. Your comments and suggestions were essential to making the book a reality. Seventh, I want to thank my colleagues and friends in the Department of Political Science and Criminal Justice at Appalachian State University for supporting my request for leave from the university so I could write this book. Thanks also to the university officials for granting my leave. Additionally, thank you to my student assistant Bryan Thompson who helped me identify experts and locate them in order to send them the surveys. Thanks for all your hard work! Finally, thank you to Dr. Daniel Murphy. Your encouragement of and interest in my work means a lot to me. You ll notice that all of the articles you provided me about the death penalty have been cited and discussed in the book! It s great to have a colleague and friend like you. x

11 DEDICATION This book is dedicated to the death penalty experts who participated in this study, and those who did not. This work would not have been possible without your participation and your scholarship. One day, America will be a better nation because of what you do. xi

12 Endnotes 1. I might have said gross rather than messy. 2. With regard to the execution of convicted murderers, there are three important points to consider: First, in our nation s history, we have executed people for offenses less than murder (e.g., burglary, rape), but it is generally accepted that the U.S. Supreme Court will no longer allow an execution for any offense other than murder. Second, not all executed murderers were legally convicted some were lynched but these are not counted as authorized executions by most capital punishment scholars. Finally, it is certain that not all people we have executed including the legally convicted murderers were actually innocent of the charges against them. Had I known these facts, this might have affected my opinion about the death penalty (but I doubt it, given my age, low level of education, and low exposure to facts about the death penalty). 3. I never took a death penalty class at the undergraduate or graduate level in college. 4. Murder and nonnegligent manslaughter is defined as the willful (nonnegligent) killing of one human being by another. See Federal Bureau of Investigation (2005). Crime in the United States [On-line]. Available: 5. The average time of stay on death row is now about 11 years. 6. This was calculated by adding the total number of people on death row at the end of 2004 (3,503) and the total number of people executed from 1977 to 2004 (944), and then dividing by the number of murders and nonnegligent manslaughters from 1977 to 2004 (558,745). 7. For example, tobacco kills 430,000 Americans every year, poor diet and inactivity kill 300,000 per year, more than 100,000 people die from adverse reactions to legal and approved drugs, hospital errors kill another 100,000 people, 60,000 die each year due to toxic chemicals, occupational diseases and hazards kill 35,000, and defective products kill more than 20,000 people. In the case of tobacco, civil juries have recognized that it is a defective product and that corporations have acted negligently and recklessly in selling this product. See Robinson, M. (2005). Justice Blind? Ideals and Realities of American Criminal Justice. Upper Saddle River, NJ: Prentice Hall. 8. See Bohm, Bob (2003). Deathquest II : An Introduction to the Theory and Practice of Capital Punishment in the United States. Cincinnati, OH: Anderson. 9. Blume, J., Eisenberg, T., and M. Wells (2004). Explaining death row's population and racial composition. Journal of Empirical Legal Studies 1(1): xii

13 10. Death Penalty Information Center (2005). Rate of death sentencing at its lowest point since reinstatement. [Online]. Available: These numbers are taken from Bedau, H. (2004). An abolitionist s survey of the death penalty in America today. In Bedau, H., and P. Cassell (Eds.), Debating the Death Penalty. Should America Have the Death Penalty: The Experts from Both Sides Make Their Case. New York: Oxford University Press, pp Robinson (2005). 13. For information on such problems, see Acker, J., Bohm, B., and C. Lanier (2003). America's Experiment With Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction (2nd Ed.). Raleigh, NC: Carolina Academic Press; Bedau, H. (1998). The Death Penalty in America: Current Controversies. New York: Oxford University Press; Costanzo, M. (1997). Just Revenge: Costs and Consequences of the Death Penalty. Cranbury, NJ: Worth Publishers; Liebman, J., Fagan, J., and V. West (2000). A Broken System: Error Rates in Capital Cases, New York: Colombia Law School; Martinzez, M., Richardson, W., and B. Hornsby (2002). The Leviathan's Choice: Capital Punishment in the Twenty-First Century. New York: Rowman and Littlefield; Prejean, H. (2004). The Death of Innocents: An Eyewitness Account of Wrongful Executions. New York: Random House; Radelet, M., Bedau, H., and C. Putnam (1994). In Spite of Innocence: Erroneous Convictions in Capital Cases. Boston, MA: Northeastern University Press; Sarat, A. (2001). When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press; Zimring, F. (2003). The Contradictions of American Capital Punishment. New York: Oxford University Press. 14. Death Penalty Information Center (2005). News and developments public opinion. [Online]. Available: Zimring, F. (2003), p Zimring (2003), p Death Penalty Information Center (2006). The death penalty: An international perspective, Abolitionist and retentionist countries. [Online]. Available: Death Penalty Information Center (2006). The death penalty: An international perspective, Executions around the world [Online]. Available: xiii

14 19. McAllister, P. (2003). Death Defying: Dismantling the Execution Machinery in the 21 st Century U.S.A. New York: The Continuum International Publishing Group. xiv