In a March 2003 decision, the U.S. Supreme Court’s 5-4 conservative majority upheld California’s “three strikes” law, which in this case sentenced a man to prison for 25 years without parole for stealing three golf clubs and another man to 50 years without parole for stealing children’s videotapes from a Kmart store. The majority opinion wrote that the sentences didn’t violate the constitutional prohibition against cruel and unusual punishment-a judgment that baffled international rights groups. Despite the fact that the U.S. penal system is viewed by the rest of the civilized world as draconian, our courts and laws are getting even more punitive.
The United States keeps a higher percentage of its people in prison than any other country in the world, including Russia, China and South Africa. The U.S. prison population is five times the proportion of Britain’s, which is the toughest jailer in Western Europe. In our land of the free, we are building prisons faster than schools, yet doing very little to respond to the root causes of crime, which are poverty, alienation and lax social justice.
The harshness and injustice of our penal system are most evident in the practice of the death penalty. The United States is the only Western liberal democracy that executes its own citizens. Our courts even make it possible to place underage teens on death row. Though the Supreme Court only recently banned executing the mentally retarded, it still allows mentally ill people who are not tested retarded (such as the schizophrenics) to be subjected to the death penalty.
The gas chamber-the barbaric practice of slow suffocation of a human being by gassing-was the sole method of execution in 10 states in 1970, including California (where it was finally banned in 1996), and as recently as 1999, the last use of the gas chamber took place in Arizona. Execution by firing squad is still in place in many states, including our own beloved state of Utah.
Practice of the death penalty puts us in league with countries that have some of the worst records of human rights violations, such as China and the fundamentalist Islamic theocracies. If the United States were to apply for membership in the European Union, the application would be rejected because of our practice of the death penalty, which violates the EU’s human rights standards.
Compelling moral reasons lead to the conclusion that capital punishment severely undermines the ideals of justice and fairness. In addition, there are practical reasons against the use of the death penalty. I begin with the practical reasons.
We routinely hear that capital punishment deters murder, but most studies conclude otherwise, making punishment by death gratuitous-it serves no practical purpose. And the prohibitive cost factor involved in capital litigation provides another important practical argument against the practice of the death penalty. Studies have shown that merely the first three of a possible 11 levels of judicial review of a capital case can cost the government four times more than the cost of life imprisonment. If the review goes through all 11 levels, the cost could be 10 times higher.
Of course, the high cost of capital cases could be reduced if we simplified and shortened the litigation process-but important moral considerations do not allow us to do that. Even with 11 levels of review, we still convict and execute the innocent. This brings me to one of the compelling moral arguments against the death penalty. Because only capital punishment is irrevocable, there is no possibility of compensating an innocent person wrongfully executed. Perhaps we cannot avoid the possibility of convicting innocent persons. However, we must avoid the possibility of being unable to rectify such a mistake.
The moral objection based on the irrevocability of the death penalty is even more compelling when we consider racial prejudice in our society. Every study of the death penalty confirms that members of minority groups, especially blacks, are far more likely to be sentenced to death and executed than white defendants, especially if the victim is white. Likewise, evidence suggests that capital punishment is applied almost exclusively to poor people. Because the death penalty is the only irrevocable punishment, bias and discrimination related to race and class in capital punishment demand its abolition.
The death penalty is unfair in yet another way. The idea of retribution-that the wrongdoer deserves punishment in proportion to the crime-is an important element of justice in our moral and legal codes. This doesn’t mean, however, that retribution demands that a killer deserves to die, which is what most people think. This thinking is more an “eye for an eye” approach, which is vengeance, not retribution and justice. We don’t steal from a thief or rape a rapist in the name of retribution, so why should a killer be killed?
Important considerations show that the goal of retribution is seldom achieved in our criminal justice system in connection with capital punishment. The law requires that those criminal homicides that are candidates for capital punishment be intentional and premeditated, that the offenders be sane and responsible and that there be a lack of mitigating circumstances.
To prove all these ambiguous factors beyond a “reasonable” doubt is essentially a subjective enterprise. This is made even more arbitrary because relevant legal, medical and psychological technicalities mean any decision by a jury or judge regarding the degree of murder could easily have been different. Yet, for the defendant, this arbitrary and vague difference means the difference between life and death. Hence the idea of a punishment proportional to the crime is especially compromised when the punishment is death.
Based on all these moral and practical considerations, we must declare that the practice of capital punishment is less a judgment on criminals and more a reflection on our own lack of humanity. The death penalty should be abolished.