The Death Penalty Has No Good Purpose — Practical Or Moral

The United States needs to abolish the death penalty. It’s archaic, costly, ineffective, and most importantly, unjust. The first place to start with the death penalty may be philosophical. The purpose of our criminal justice system is to deter crime, rehabilitate convicts, and incapacitate hardened criminals. Philosophically speaking, life in prison serves these functions better than the death penalty. Life imprisonment is certainly a deterrent — in fact, it may be worse than death itself. Life in prison allows for rehabilitation, whereas death is final. And with supermax prisons, escape is no longer a real possibility, so incapacitation is served equally well by both.

Therefore, any argument for continuing the death penalty is not an argument about criminal justice, but rather one based on some other preference, usually one which we would have to sacrifice justice to achieve. That is, the death penalty ultimately twists the purpose of the criminal justice system and makes it about: 1) Institutionalized revenge, 2) Emotional closure, 3) Racial violence, or 4) Monetary cost.

Since the death penalty is not actually about criminal justice, that leaves one possible argument in its favor — some sort of deterrence. Sadly, this idea is forwarded by a few Chicago school economists who try to explain all behaviour (even criminal) in terms of homo economicus, and their arguments have been thoroughly discredited. The reason is obvious: Murder isn’t rational, so why expect a rational response to incentives? Further, is the death penalty a significant disincentive compared to life in prison? The reason for confusion has generally been the lack of a significant enough sample for any real empirical work.

However, while it brings no benefits, the death penalty does seriously undermine the the criminal justice system for three reasons: racism, false incrimination, and revenge.

Germany is one of the many countries that has abolished the death penalty. Their reason: After the crimes of Nazism, the very idea of the state putting individuals to death is too much to countenance. Consider the justifiable outcry that would ensue if Germany reinstated the death penalty and Jewish inmates were far more likely to receive the death penalty for the same crime as a German inmate. Consider if, although Jews made up less than 15% of the German population, they made up a large portion of those executed. And consider if the chance of a Jewish prisoner getting the death penalty was far higher if there were no Jews on the jury. There would be widespread accusation of racial preference. And yet, without fail, this is the case with America’s criminal justice system. As Richard Pryor notes, “I went to see justice, and that’s what I saw — just us.”

A study commissioned by the governor of Maryland found, “Defendants who killed white victims were more likely to advance to a penalty trial and are more likely to be sentenced to death than those who killed a black.” Of those on death row, 42% are black, but blacks make up less than 15% of the population. The GAO analyzed 28 studies on capital punishment and found:

"In 82% of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques."

Brian Stevenson, founder of the Equal Justice Initiative, argues that if the victim is white, the defendant is 11 times more likely to receive the death penalty than if the victim is black. If the victim is white and the defendant is black, than the likelihood of death penalty sentence is 22 times higher. Further, all-white juries are more likely to hand down a death sentence then a jury with African-Americans.

I used to argue, when defending the death penalty, that if someone could show me a single instance of an innocent man being executed, I would concede. I knew that this would be tough. After all, most murder investigations end when the accused is killed by the state. But there is ample evidence that we have already killed an innocent man. Consider Carlos DeLuna. Or Cameron Todd Willingham. Or Troy Davis. With the number of death row exonerations in triple digits, it’s likely we would have killed many more. In Alabama, there has been one exoneration for every five executions. In his defense of the death penalty, PolicyMic writer Kyle Gibson casts this argument aside rather haphazardly, writing, "By applying the same logic to other examples, would it be rational to drive an automobile if thousands are killed every year? Or is it sensible to grant jobs when there’s the potential for sexual harassment, labor, scandals, or race discrimination? Rather, we must promote the frequency of an overall just institution, to encourage reform, efficiency, and the effectiveness of its deterrent effect."

This is possibly the ultimate dodge. Gibson argues that we must acknowledge trade-offs, which I grant, but there is no argument as to why this negative consequence is justified. The analogy is tenuous and is a rather half-hearted dodge. Few would say in response to say drone strikes, “You drive a car, and that kills lots of people, I use drones to assassinate untried Pakistanis, and that kills people too.” The reason that Justice Blackstone argued, “It is better that ten guilty persons escape than that one innocent suffer,” is that if a criminal justice system kills an innocent person, it has undermined its raison d'être. The death penalty undermines the purpose of the justice system.

The justice system, if it is anything, must be greater than institutionalized revenge. The death penalty turns the justice system from a mechanism of controlled force aimed at eliminating violence, to a system of violence itself. Rather than move our society towards mutual cooperation and understanding, we have institutionalized the very “eye for an eye” justice we have sought to end. We would do well to note which other countries our commitment to death aligns us with: China, Iran, Iraq, Saudi Arabia, North Korea, Somalia, Afghanistan, and Yemen. Gibson says free countries should execute prisoners, but it appears only the least free do.