In New Jersey, the annual cost of the death penalty is an
additional $22.8 million over the estimated cost of a life imprisonment system
according to Paul Keve in the article "The Costliest Punishment--A
Corrections Administrator Contemplates The Death Penalty" (Federal
Probation. March 1992: 11-5). These figures were part of "An Economic
Analysis of the Death Penalty" (Illinois State's University's Undergraduate
Journal of Economics--1996). Little current information is available from the
state of New Jersey. However, the
standard of cost established by other states does raise serious questions that
need to be explored about the present cost of capital punishment in New Jersey.
|
A death
penalty case costs approximately 42 percent more than a case resulting in a
non-death sentence according to
the GAO. |
Various state
governments estimate that a single death penalty case, from the point of arrest
to execution, ranges from $1 million to $3 million, and other studies show the
cost to be as high as $7 million per case. However, cases resulting in life
imprisonment average between $600,000 and $850,000 each, including the cost of
incarceration. An economic analysis of
the death penalty provided the following well-documented facts:
According to
the most thorough study conducted, an execution costs North Carolina $2 million
more than the cost of a non-death penalty murder case with a sentence of life
imprisonment. Each year the death
penalty costs California $90 million over and above the ordinary costs of the
justice system; $76 million of these amounts are spent at trial. In Los Angeles
County alone, the death penalty costs over $635,000 more per defendant than
life imprisonment without parole. In
Texas, a death penalty case costs about $2.3 million on an average for the
trial, appeal, housing on death row and execution -- three times the cost of
keeping a person in a maximum security prison for 40 years. Florida has found that it is almost six
times as expensive to try a capital defendant than to imprison the person for
the rest of his or her life. Taxpayers in Florida are spending an average of
$2.3 million on each execution. In
Maryland, a comparison of capital trial costs with and without the death
penalty for the years 1979-1984 concluded that a death penalty case costs
"approximately 42 percent more than a case resulting in a non-death
sentence," according to the GAO.
In Kansas, it
is estimated that it costs the taxpayers $4.2 million by the time an accused
defendant is executed. The result has been that in a recent case, the
prosecutor recommended life imprisonment without parole so that law enforcement
revenues could go elsewhere. Since capital punishment was reinstated in New
York four years ago, five men have ended up on death row and the total cost to
taxpayers for prosecution and defense has been estimated at $ 68 million. In
Queens, two death penalty trials that resulted in sentences of life without
parole cost the district attorney’s office, according to a newspaper article,
$487,207 in personnel expenses alone.
The Queens District Attorney stated that “one of the things that has
concerned me from the very beginning has been the commitment of resources to
capital cases… implementation of this statute is a very costly and a time
consuming proposition.”
Capital
punishment in every state is more expensive than a life imprisonment sentence
without the opportunity of parole. These costs are not the result of frivolous
appeals, but rather the result of constitutional mandated safeguards that can
be summarized as follows: jury
selection, instead of days, stretches into many weeks as it is important to
uncover any prejudices, biases or predisposition’s. Juries must be given clear
guidelines on sentencing. Also,
defendants must have a dual trial—one to establish guilt or innocence, and if
guilty a second trial to determine whether or not they would get the death
penalty. Further, since we are dealing
with issues of life and death, everything is attenuated including,
investigators, expert testimony, motions and hearings. Besides prosecution and
defense costs, death penalty trials have unusually high court costs. Further, the appeals process can last years
to insure an innocent person is not being executed which and adds substantially
to the costs of all death penalty cases.
|
the exorbitant costs of capital
punishment are actually making America less safe - Millions Misspent |
Using David
Erickson’s study of a death penalty trial in Los Angeles County, he breaks down
the costs and compares it with the costs of a murder trial where the death
penalty is not sought. He concludes that the total cost to the county in a
capital trial is approximately $1.8 million compared to $620,00 for a regular
murder trial. Example of these costs
are as follows: in the Defense Attorney, Capital case is $385,998, and the
regular case is $160,058; in prosecution investigation, capital is $48,523 and
regular is $5105; Prosecution attorney is $771,996 and regular is $320,116;
Court cost is $506, 408 for capital and regular is $82,188. He estimates that if the other costs were
added, such as the constitutionally mandated appeals to the State Supreme
Court, the $1.8 million would increase to an estimated 2.5 to 3 million dollars
per execution.
Professor
James Acker, a death penalty expert at the State University of New York states
the problem as follows: “There’s all this money being invested up front with
the intent of getting an eventual execution, but the return on the dollar of
these investments is really quite poor. If the ultimate punishment were life in
prison to begin with, you wouldn’t have all the added expense of a death
penalty case * the prolonged jury selection, the extensive investigation, the
use of experts and all that.” The publication Millions Misspent states that the
exorbitant costs of capital punishment are actually making America less safe
because badly needed financial and legal resources are being diverted from
effective crime fighting strategies. The 1994 Epilogue to Millions Misspent
states that "if a program is highly cost intensive, given to years of
litigious expense, focused on only a few individuals, and produces no
measurable results, it should be replaced by better alternatives." With a
record high of over 3,600 inmates on death row, these costs will only continue
to escalate. The hundreds of millions of dollars that would be saved could be
devoted to crime prevention, and assisting families of victims financially with
counseling and other services.
As of the year
2000 the U.S. Attorney General Janet Reno said she has yet to see any evidence
suggesting that the death penalty deters crime. "I have inquired for most
of my adult life about studies that might show that the death penalty is a
deterrent. And I have not seen any research that would substantiate that
point," said Reno. In theory,
deterrence should establish credible threats of punishment, but the lack of
evidence does not prove the effectiveness of deterrence in potential killers.
Whereas many politicians argue that the death sentence is an effective
deterrent, virtually no criminologist agrees.
According to social scientists, a methodology has yet to be discovered to
prove that the death sentence works as an effective crime deterrent.
In support of
these statements, a 1999 study entitled Capital Punishment and Deterrence:
Examining the Effect of Executions on Murder in Texas takes issue with the
leading execution state in the country.
Authors John Sorenson, Robert Wrinkle, Victoria Brewer, and James
Marquart examined executions in Texas between 1984 and 1997, believing that if
in fact deterrence was a legitimate claim it should be realized in Texas. After
assessing the patterns in executions over the study period and the steady rate
of murders in the state, the authors found no evidence of a deterrent effect.
The study concluded that the number of executions was unrelated to murder rates
in general, and that the number of executions was unrelated to felony rates.
|
“These people do not make
rational calculations of pain and gain at the time of their acts.” - Howard
Zehr |
Comprehensive studies and
the vast preponderance of evidence show that capital punishment does not deter
crime and that the death penalty is no more effective than life imprisonment in
deterring murder. There is no proof that capital punishment discourages crime
by anyone other than the criminals who get executed. Even death penalty
proponent Glenn Lammi, chief counsel of the legal studies division of the
Washington Legal Foundation, admits that "there are no convincing studies
tracking the relationship between the death penalty and the crime rate, because
isolating one variable in a sea of factors is beyond our abilities. Howard Zehr
in "Death as a Penalty" expresses it well, "Some crimes, such as
tax evasion, involve considerable rational planning and deterrence may have
relevance to them. What we know about murder, however, indicates that most
homicides are acts of passion -- impulsive acts committed under tremendous
stress and/or the influence of alcohol or drugs by individuals prone to
aggressive, impulsive behavior. These people do not make rational calculations
of pain and gain at the time of their acts. Though there are premeditated murders
the perpetrators do not expect to be caught or do some careful decision making
that the risks of murder are worth the benefit."
Furthermore,
judging by the crime rates in those states that have abolished capital
punishment and instituted alternative sentences, the absence of the death
penalty would cause no rise in the murder rate. According to Amnesty
International in 1997, the average murder rate per 100,000 population was 6.6
in death penalty states and 3.5 in non- death penalty states. The Statistical Abstract
of the US reports that the murder rate in 1990 of Texas, a state with the death
penalty, was 14.1 per 100,000 persons while in the same year Minnesota, a state
without the death penalty, was 2.7 per 100,000 persons. In 1990, Louisiana’s
rate was 17.2 while Massachusetts’ was 4.0. Canada's experience is an excellent
example. The murder rate was a full one-third lower in 1995 than in the year
before abolition, 1976, while the US homicide rate remained unchanged during
the same period.
|
The majority of police chiefs
(67%) do not believe that the death penalty significantly reduces the number
of homicides. -1995 Hart Research Associates Poll |
Also, law
enforcement officers do not view the death penalty as an effective deterrent to
violent crime. A 1995 Hart Research Associates Poll of police chiefs in the
U.S. found that the majority of police chiefs (67%) do not believe that the
death penalty significantly reduces the number of homicides. In fact, the
police chiefs ranked the death penalty last among effective ways of reducing
crime. Finally, a survey of experts from the American Society of Criminology
and the Academy of Criminal Justice Sciences showed that the overwhelming
majority (80%) did not believe that the death penalty is a proven deterrent to homicide.
As previously stated, badly needed funds are being diverted away from programs
that effectively address crime in society while millions are being spent to
carry out capital punishment for a small number of cases.
In murder
cases, there has been substantial evidence to indicate that the courts have
been arbitrary, contradictory, and unfair in the way in which they have
sentenced some people to prison but others to death. Several thousand
defendants are convicted of murder each year, and less than one percent of them
receives death sentences. In New
Jersey, Professor Acker claims, that “where the death penalty was reinstated in
1982, the first 24 death sentences handed down under the new law were vacated
or reversed by the State's’ Supreme Court.”
The Virginia case of Joseph O’Dell illustrates this reality. The U.S.
Supreme Court and lower courts refused to take action on his claim that the
jury that had sentenced him to death was never informed that a sentence of life
would mean life with no possibility of parole. Later, the Supreme Court ruled
in Simmons v. South Carolina that to keep such information from a jury is
unconstitutional. Yet, the Federal courts refused to apply this decision to the
O’Dell case, concluding that earlier court rulings in his case were reasonable
even if they contradicted the new precedent.
Incidentally, O’Dell was executed in July 1997. A 1990 GAO study
concluded that "our synthesis of the 28 studies shows a pattern of
evidence indicating racial disparities in the charging, sentencing and
imposition of the death penalty and that the influence of the race of the
victim was found at all stages of the criminal justice system process."
|
"the
administration of the death penalty, far from being fair and consistent, is
instead a haphazard maze of unfair practices with no internal
consistency." - American Bar Association |
Since February
1997, the American Bar Association has called for a moratorium on executions
because "the administration of the death penalty, far from being fair and
consistent, is instead a haphazard maze of unfair practices with no internal
consistency." The ABA resolution calls for this moratorium until
jurisdictions implement policies to ensure that death penalty cases are administered
fairly, impartially, in accordance with due process, and minimize the risk that
innocent persons may be executed. Various state and local bar associations, and
the National Association of Criminal Defense Lawyers with a total of have
supported this moratorium over 700 public/private groups to date. Also, the United Nations Commission on Human
Rights has adopted, for two years in a row, a resolution against the death
penalty. Currently, a Moratorium 2000 campaign is being waged on the world
stage, led in the US by Sr. Helen Prejean.
This campaign is seeking to collect one million US signatures so that
they can be delivered to the United Nations December 10, 2000, Human Rights
Day.
Prosecutors'
decisions, the jurisdiction in which the crime occurs, the quality of legal
counsel, and the accused’s economic status are often the determining factors in
a death penalty case rather than the facts of the crime. Prosecutors often settle cases through
plea-bargaining. Culpable defendants
who are at high risk of receiving a death sentence may plea bargain for a
reduced sentence. Their less culpable
accomplices, however, may receive the death penalty. Take the following case in New Jersey. A study that was published
in the Rutgers Law Review (Vol. 41.27) analyzing prosecutorial discretion
studied 703 homicides taking place from 1982-1986. For “all homicides” great discrepancies were found between those
counties that were more likely to seek a plea versus those that would go to
trial. In Essex County, of 208 homicides,
134 (64.4%) went to trial while 74 (35.6%) sought a plea. In Mercer County, of the 35 homicides, 25
(71.4%) went to trial while 10 (28.6%) sought a plea. This is contrasted with Hudson County’s 98 homicides, 21 (21.4%)
went to trial while 77 (78.6%) sought a plea.
Of Camden County’s 70 homicides, 17(24.3%) went to trial while 53(75.7%)
sought a plea.
Similar discrepancy is found county to county when one considers
“death-possible cases.” Of Essex
County’s 115 death possible cases, 84 (73%) went to trial and 31 (27%) sought a
plea. Of Mercer County’s 22
death-possible cases, 18(81.8%) went to trial while 4(18.2%) sought a
plea. Of Hudson County’s 38
death-possible cases, 14 (36.8%) went to trial and 24 (63.2%) sought a
plea. Of Camden County’s 46 death-possible
cases, 12(26.1%) went to trial while 34(73.9%) sought a plea.
In the Supreme Court’s Furman v. Georgia decision of 1972 capital
punishment was determined to be “arbitrary and capricious” and thereby
unconstitutional. The realities of the
death penalty in NJ raises the very constitutionality issue that Furman v.
Georgia questioned.
Sources
indicate that at least 23 innocent people have been executed this century.
Although it must be acknowledged that some of those cases were not well
documented and certain legal safeguards did not exist in the early part of the
century, there is little doubt that some of the twenty-three were innocent. A
striking example of this tragic error was the case of Patrick Fitzpatrick whom
was a Detroiter living at an Inn in Sandwich. When the daughter of the
innkeeper was found raped and murdered, Fitzpatrick was arrested for the
offense, summarily declared guilty, and hung from the gallows. Seven years
later, Fitzpatrick's former roommate lay on his deathbed. Needing to clear his
conscience before departing this world, the man confessed that he was the man
who raped and killed the innkeeper's daughter.
|
Since 1970, 87 people have been
released from death row due to evidence of their innocence |
Since 1970, 87 people have been released from
death row due to evidence of their innocence, some within days of their
scheduled executions. This evidence was frequently based on scientific
advancements such as DNA testing and journalistic research, which was
independent from the safeguards the criminal justice system has tried to put in
place. These defendants spent an average of seven years on
death row before their eventual release. This report cited that the average
time between conviction and execution is eight years. In light of recent state
and federal legislation that will shorten the time between conviction and
execution, the average death row defendant could be executed before his or her
innocence is discovered. Furthermore, there is a significant lack of funding to
Public Defenders in the various states, e.g. Florida has $4 million to defend
370 persons on Death Row.
Despite the
success of DNA testing in shedding new light on an individual’s innocence and
guilt, only two states, Illinois and New York, give inmates the right to DNA
testing when it could produce new evidence of innocence. The primary obstacle to DNA testing are
state laws that forbid the introduction of new evidence which in turn limits
death row appeals and speeds up the execution process. As Sr. Helen Prejean observes “the legal
system” is “a system of gates that shut like one-way turnstiles, and you can’t
go back in once you’ve come out.”
|
"I
cannot support a system, which, in its administration, has proven so fraught
with error, and has come so close to the ultimate nightmare, the state's
taking of innocent life." - Republican Governor George Ryan |
In Illinois
alone, 13 men who have been sentenced to death since 1977 for crimes they did
not commit were later exonerated and freed.
Nine of the thirteen were found innocent through the tireless efforts of
journalism students from Northwestern University. Furthermore, lawyers that were either disbarred or suspended
represented 31 of Illinois ‘ 161 death row inmates. This led Republican Governor George Ryan in January of 2000 to halt all executions in the state. Reflecting on his decision he said “I cannot
support a system, which, in its administration, has proven so fraught with
error, and has come so close to the ultimate nightmare, the state’s taking of
innocent life.”
Some of the
factors that contributed to the 87 people being falsely condemned include
overzealous prosecution, willful suppression of evidence, mistaken or perjured
testimony, faulty police work, coerced confessions, the defendant’s previous
criminal record, inept defense counsel, seemingly conclusive circumstantial
evidence, and community pressure for a conviction. As an example, in 1994, U.S.
District Court Judge Kenneth Hoyt overturned the conviction of Ricardo Guerra,
who had been sentenced to death, stating that the actions of police and
prosecutors were "intentional" and "done in bad faith." A
new trial was granted to Guerra, but the Houston District Attorney dropped the
charges instead.
At times, individuals
outside the criminal justice system, such as journalism students and reporters
doing independent research, and volunteers with legal expertise, rather than
police or prosecutors, are the ones who rectify the errors. One of the most
convincing cases of innocence was featured on NBC's DATELINE and involved the
execution of David Wayne Spence in Texas in 1997. By mere
coincidence, a businessman, Brian Pardo, a self-proclaimed "Goldwater
Republican" and strong advocate of the death penalty, met David, and began
a thorough research to find "compelling evidence" of David’s
innocence. Brian, a defender of his country in war, stated "I have lost my
confidence and faith in the integrity of the criminal justice system."
However, the move for quicker appeals, such as the Effective Death Penalty Act
of 1996, could mean that other innocent inmates would be executed before their
innocence can be proven. The law is already restricting inmates with new
evidence of innocence from obtaining review because of its stringent time
limits and barriers to conducting evidentiary hearings. Florida has recently followed the example
of Texas in speeding the appeals process for those on death row in an effort to
more quickly execute these inmates.
Three former
members of the Supreme Court, in expressing their concerns, gave reasons for
deliberation and prudence in the process. Justice Thurgood Marshall stated,
"No matter how careful the courts are, the possibility of perjured
testimony, mistaken honest testimony and human error remain all too real. We
have no way of judging how many innocent persons have been executed, but we can
be certain that there were some." In 1994, Justice William J. Brennan
stated in equally thoughtful terms, "Perhaps the bleakest fact of all is
that the death penalty is imposed not only in a freakish and discriminatory
manner, but also in some cases upon defendants who are actually innocent."
Justice Harry Blackmun stated in 1994, "From this day forward, I no longer
shall tinker with the machinery of death. For more than 20 years I have
endeavored--indeed, I have struggled—along with a majority of this Court, to
develop procedural and substantive rules that would lend more than the mere
appearance of fairness to the death penalty endeavor. Rather than continue to
coddle the Court's delusion that the desired level of fairness has been
achieved and the need for regulation eviscerated, I feel morally and
intellectually obligated to concede that the death penalty experiment has
failed."
Former Florida
Chief Justice Gerald Kogan, a former prosecutor, recently spoke about innocence
and the death penalty: "[T] here is no question in my mind, and I can tell
you this having seen the dynamics of our criminal justice system over the many
years that I have been associated with it, prosecutor, defense attorney, trial
judge and Supreme Court Justice, that convinces me that we certainly have, in
the past, executed those people who either didn't fit the criteria for
execution in the State of Florida or who, in fact, were, factually, not guilty
of the crime for which they have been executed. . . . You have to ask yourself,
how many persons did we execute prior to the arrival of DNA evidence who would
have been released, had we had that tool working for us 25, 30, 40, 50 years
ago?" (Speech in Orlando, Fl., Oct. 23, 1999)
It is
generally agreed that speeding up the process by limiting appeals comes only at
the cost of weakening due process and increasing the chances that innocent
people will be convicted and even executed. The matter was best summarized by a
New York deputy district attorney who reviewed the case of Jeffrey Blake, a 29
year old man who was set free after seven years in prison for a crime he did
not commit. "In a sense, the system worked," the deputy DA said,
"although it took some time."
The death penalty does not allow for the slow workings of an imperfect
justice system. It is final.
In a 1984
study conducted by the Department of Psychiatry at the New York University
School of Medicine, fifteen death row inmates in the United States for whom
execution was imminent were clinically evaluated. Of the fifteen “all had histories of severe head injury, five had
major neurological impairment, and seven others had other, less serious
neurological problems (e.g., blackouts, soft signs). Psychoeducational testing provided further evidence of CNS
dysfunction. Six subjects had schizophreniform
psychoses antedating incarceration and two others were manic-depressive. The authors conclude that many condemned
individuals probably suffer unrecognized severe psychiatric, neurological, and
cognitive disorders relevant to considerations of mitigation.” Given these impairments, questions have been
raised as to why these findings were not found and brought up in original
trials or in subsequent appeals.
Most people
overseeing an execution are horrified and disgusted. For example, one
individual caught fire as he was being electrocuted in Florida. The revulsion
at the duty to supervise and witness executions is one reason why some prison
wardens - however unsentimental they may be about crime and criminals -are
opponents of capital punishment.
|
In one state, there was
proposed legislation to replace the state's electric chair with the
guillotine. |
The concept of
"evolving standards of decency" was recognized in Trop v. Dulles, 356
U.S. 86 (1958) which attempts to show the death penalty to be a barbarous
practice that should be discarded. In this country, two states permit the use
of a firing squad, hanging is an option in four of our states, and, in one
state, there was proposed legislation to replace the state’s electric chair
with the guillotine. Lethal injection, which was pioneered by the Nazis in
1937, has been proposed and used by many states as a more humane method for
execution. However, the U.S. Court of Appeals in Chaney v. Heckler, 718 F.2d 1174
(1983) observed there is "substantial and uncontroverted evidence...that
execution by lethal injection poses a serious risk of cruel, protracted
death...Even a slight error of dosage or administration can leave a prisoner
conscious but paralyzed while dying, a sentient witness of his or her
asphyxiation." Although this case was reversed by the Supreme Court on the
basis of a point of law, there has been no contesting that execution by lethal
injection can pose a risk of protracted death since individuals do not react
uniformly to drugs. Also, since the AMA considers it unethical for members of
its association to take part in an execution, untrained personnel are left to
administer the lethal injections. There are cases in which these individuals
have not been able to find veins, and have had to perform a "cutdown"
for veins. Incidentally, on the death certificate, after an execution at the
Oklahoma State Penitentiary, the cause of death is listed as
"homicide."
|
"The
deliberate institutionalized taking of human life by the state is the
greatest conceivable degradation to the dignity of the human
personality." - Former Supreme Court Justice Arthur J. Goldberg |
Former Supreme
Court Justice Arthur J. Goldberg wrote, "The deliberate institutionalized
taking of human life by the state is the greatest conceivable degradation to
the dignity of the human personality." When the government sanctions,
commands and ceremoniously carries out the execution of a prisoner, it lends
support to this destructive side of human nature. In addition, a retiring state
Supreme Court justice in Florida, Gerald Kogan, stated that he had "grave
doubts" about the guilt of some of the convicts executed during his 12
years on the bench, but was not able to muster a majority of the seven-justice
court to change the decision.
The concern
about the scope and spread of violence in our country is well known. Many have
argued that "violence begets violence begetting more violence." The
use of the death penalty contributes to the violence in our society, and
specific interventions to the violence cycle, such as the elimination of the
death penalty, need to be considered.
Beyond the
physical suffering is the psychological suffering that is unaltered regardless
of the method of execution. No method
of execution can change the fact that a conscious human being is being prepared
for his own death. The suffering caused
by the foreknowledge of death defies description. Robert Johnson, a criminologist who studied death row inmates,
determined that condemned people tend to lose all individual personality traits
during imprisonment. He referred to
this as the “death of the personality.”
Unquestionably,
some crimes are of such a heinous nature that the severest punishment seems
most fitting. It can be argued that the legitimacy of the death penalty rests
on the concept of just retribution, or making the punishment fit the crime.
However, it seems that the acceptance of this principle still permits the crime
to be satisfied without recourse to executions, but through the requirement of
life imprisonment without any possibility of parole. Criminals deserve to be
punished with severity appropriate to their culpability and the harm they have
caused to their victims. But it needs
to be considered as to whether the severity of punishment has its limits,
|
"it's
morally satisfying." - Robert Bork as U.S. Solicitor General |
which do
justice and our common human dignity, notwithstanding all of the other factors
stated in this presentation impose. Robert Bork as U.S. Solicitor General
successfully argued before the U.S. Supreme Court for the death penalty's
reinstatement. He said that the death penalty deters crime as well as
incapacitating those who might kill again, and added "it's morally satisfying."
As noted above there is no evidence that it deters crime, and there are
alternative ways of incapacitating killers. To say that it is morally
satisfying does not consider a higher moral law than a person's individual
feelings.
Additionally,
some would question whether the punishment of death ever fits the crime of
murder. According to writer Albert
Camus in Reflections on the Guillotine “for there to be equivalence” between
criminal homicide and execution “the death penalty would have to punish a
criminal who had warned his victim of the date at which he would inflict a
horrible death on him and who from that moment onward had confined him at his
mercy for months. Such a monster is not
encountered in private life.”
Although some
of the families of victims believe that they cannot have closure until the
murderer is executed, that feeling is not universal. It is
generally believed that true closure is never really possible after the murder
of a loved one. However, studies have shown that the continual process of
appeals necessary to insure due process in capital punishment cases, along with
the ongoing returning to court, force families to confront the gruesome details
of the crime over and over, making it literally impossible for them to get on
with the rest of their lives. The damaging effect of this constant reopening of
emotional wounds has even caused divisiveness in some families when certain members
want to pursue the death penalty no matter the cost or time involved while
other members want to move forward with their lives, sometimes resulting in
divorces and alienated families. Nothing noted here, however, attempts to
trivialize the pain and loss by the victim’s family, nor the lasting effect of
that loss. The needs of family and friends of murder victims deserve much more
consideration than has been given them, but we must question whether their
needs are met effectively by killing someone else and causing another family to
be subjected to grief and pain. Is this not adding to the cycle of violence and
vengeance?
|
“I knew, far
too vividly, the anguish that would spread through another family…” - Kerry
Kennedy, daughter of Senator Robert Kennedy |
The following individuals
provide some perspective to this issue. Coretta Scott King has observed,
"As one whose husband and mother-in-law have died, the victims of murder
assassination, I stand firmly and unequivocally opposed to the death penalty for
those convicted of capital offenses. An evil deed is not redeemed by an evil
deed of retaliation. Justice is never advanced in the taking of a human life.
Morality is never upheld by a legalized murder." Kerry Kennedy, daughter
of Senator Robert Kennedy has written: "I was eight years old when my
father was murdered. It is almost impossible to describe the pain of losing a
parent to a senseless murder...But even as a child...I didn’t want the killer,
in turn, to be killed...I saw nothing that could be accomplished in the loss of
one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread
through another family...another set of parents, children, brothers, and
sisters thrown into grief."
Marietta
Jaeger, a Detroit writer, struggled with hatred and unhappiness, and was bitter
and tormented after a person kidnapped her 7-year old daughter, Susie, from a
tent in the middle of the night during their family vacation in Montana. On the
first year anniversary of the kidnapping, Marietta learned that the kidnaper
had murdered her daughter. She says that she struggled with forgiveness and
questioned whether she would be betraying her daughter if she were to forgive
someone who had done such terrible things to her. But Marietta says God kept
calling her beyond that. "Though initially I ran the gamut of outraged
reaction, I have come to believe that the only whole and healthy and happy and
holy way that we can respond to a hopeless situation like that is to forgive."
The penalty
for murder and kidnapping in Montana was death. Marietta said, "By this
time I had finally come to understand that God’s idea of justice is not
punishment, but restoration" and she asked the FBI to offer him life
imprisonment and a chance for psychiatric care. Jaeger says that the death
penalty does not accomplish what society thinks it will. She labels it a
"gut level, bloodthirsty desire for revenge" that leaves family
members of victims "empty and unsatisfied and unhealed." Capital
punishment has the same ill effect on society as it does on individuals,” she
believes.
Marietta
concludes by saying, "Believe me, there are no amounts of retaliatory acts
that will compensate for the loss of my little girl or restore her to my arms.
Even to say that the death of one malfunctioning person is going to be just
retribution is an insult to her immeasurable worth to me. My little girl was a
gift of beauty and sweetness and goodness in my life. To kill somebody in her
name is really to violate and profane her. I’d rather honor her life by saying
that all of life is sacred and all of life is worthy of preservation from the
very beginning of conception till the end when we die."
Bud Welch,
whose 23-year old daughter died in the Oklahoma bombing, said, "During the
first few months after the bombing, I was not opposed to the death penalty for
Timothy McVeigh. But as time has gone on, I’ve tried to think this out for
myself. Right now I’m trying to deal with forgiving. I can’t tell myself or
anyone else that I’ve forgiven Timothy McVeigh because I have not. But my
spiritual being tells me I have to deal with that. And...if he’s executed, I
won’t be able to choose to forgive him. As long as he’s alive, I have to deal
with my feelings and emotions. I’m afraid that it’s going to be a real
struggle. But it’s a struggle I need to wage. And I can’t do that if he’s
dead...We don’t need any more bloodshed. To me, the death penalty is vengeance,
and vengeance doesn’t really help anyone in the healing process."
In addition,
Maria Hines lost her only sibling, a Virginia state trooper, to a murderer.
Maria said that the decision to go public on the death penalty was one of the
most difficult of her life and caused her family great concern. However, she
stated that "it does not honor my brother to kill in his name. Rather it
dishonors him." Similarly, Lorry
and June post of Cape May, NJ who lost their daughter to murder have stated
that executing someone in their daughter’s name would dishonor her memory.
|
The United States joins such
countries as Iraq, China, and Iran in imposing the death penalty |
Once prevalent
everywhere and for a wide variety of crimes, the death penalty is generally
forbidden by law and widely abandoned in practice. The worldwide trend is
toward the complete abolition of capital punishment. Today, 28 European
countries have abolished the death penalty in law or in practice. 106 countries
are abolitionists by law or practice, while 90 still retain the death penalty.
The United States joins such countries as Iraq, China, and Iran in imposing the
death penalty. The United Nation's
Commission on Human Rights approved a resolution in
April 1998 co-sponsored by 63 nations, which calls for a moratorium on the
death penalty. Among those voting against the resolution, were the U.S.,
Bangladesh, China, South Korea and Rwanda.
A special
envoy from that Commission examined executions alleged to violate international
law, such as the executions of those who were juveniles at the time of their
crimes and those with mental retardation, both of which are allowed by most
death penalty states in this country. Though in New Jersey the minimum age to
be sentenced to death is 18, the mentally retarded can be executed. Even China
and Russia have banned executing children. As of June 1, 1999, 74 prisoners are
under sentence of death for crimes they committed before the age of 18. Child offenders comprise about 2% of all
death row inmates. Since 1976, more
than 13 child offenders have been executed in the United States. Some of the 13 were brain-damaged, and
borderline mentally retarded.
According to
Amnesty International, in 1998, there were 1,625 known executions in 37
countries, 80% of which took place in China, the Democratic Republic of Congo,
the USA and Iran. Because these figures include only documented cases; the true
figures are likely to be much higher.
(Breakdown: China-1067,
Congo-100, USA-68, and Iran-66)
Over the years
the polls have reflected strong support for the death penalty in the U.S. However, as of late the polls appear to
reflect a growing dissatisfaction with death as a form of punishment, and there
is a shift in the trend toward life without parole has been an alternative. A
poll released in September, 2000 conducted for the National Justice Project by
Peter Hart Research, a Democratic Party Research firm, and American Viewpoint,
a Republican Party Research firm, showed 80% of Americans supporting reforming
or abolishing the death penalty, and 64% support suspending executions entirely
until issues of fairness in capital punishment can be resolved. Also, a recent Quinnipiac poll showed that
when the alternative of life imprisonment is given, 44% were for the death
penalty, and 43% were for life imprisonment with 13% undecided. Further, 16% in
that same poll stated that they did not know New Jersey had a death penalty.
|
When asked
to choose between the death penalty and a guaranteed 'life in prison with
absolutely no possibility of parole," support for the death penalty fell
to 44% - Eagleton poll in NJ |
In 1994 72% of
New Jerseyans polled said they favored the death penalty. When asked to choose between the death
penalty and a guaranteed ‘life in prison with absolutely no possibility of
parole,” support
fell to 44%. However, New Jersey
does not have the sentence of life without parole. By a margin of 56% to 37%,
far more agree than disagree that a poor person is more likely than someone
else to receive the death penalty for the same crime. Forty-two percent also
agree that a black person is more likely than a white person to receive the
death penalty for the same crime. (The Star Ledger/Eagleton Poll press release
10/10/99, and Associated Press 10/10/99)
Other recent
polls suggest a similar trend. In
response to the question of which punishment is more suitable for the crime of
murder, the death penalty or life imprisonment with no possibility of parole, a
Gallup poll of February, 2000 found 52% supported death, 37% life imprisonment
with no parole, and 11% were undecided.
Asking the same question an ABC News poll of January 2000 found 48%
preferred the death penalty, 43% life imprisonment without parole, and 9%
undecided.
According to
the June 16, 1997 issue of Time magazine, American attitudes show that a
majority of 52% do not think the death penalty deters people from committing
crimes, and a higher figure of 60% do not think that vengeance is a legitimate
reason to execute someone. A 1993 poll showed that support for the death
penalty dropped to 49% if the alternative is no parole ever, and to 41% if the
alternative is life imprisonment without parole, along with restitution to the
victim’s family. Polls by other states during the past year show a growing
tendency to move in directions other than the death penalty.
The
comprehensive report by William Bowers on Capital Punishment and Contemporary
Values published by the Law and Society Review in 1993 provides documented
polling data from five states (Florida, Georgia, New York, California and
Nebraska) which showed those favoring the death penalty ranged between 72% and
84%. However, when the question was changed to preferring the death penalty or
the sentence of life without parole plus restitution as an alternative to the
death penalty, the alternative received the greatest support ranging from 51%
to 70%. Another example was an Ohio State University Poll which reported that
59% of Ohioans support life without parole, plus restitution to the victim’s
family, as an alternative to the death penalty. Polls in Kentucky and Virginia
produced similar results.
The reason that
the alternative may not be higher is that, according to the same 1993 poll,
when asked how long they believed that someone sentenced to life without parole
would serve, only 4% believed that they would be imprisoned for the rest of
their lives, and only 11% believed that such a person would never be released.
However, these perceptions are far from the reality. Two-thirds of the states
that impose sentences for first degree murder guarantee the inmate will never
be eligible for release. For example, California has had a sentence of life
without parole for over 25 years, and not one person sentenced under this law
had been released from prison as of 1993. Surveys have shown that jurors, too,
look for alternatives. Jurors faced with making life and death decisions
repeatedly inquire about the true meaning of a "life sentence." When
they are told in many jurisdictions, that parole eligibility will not be
explained, they sometimes incorrectly assume that the defendant will be out
again in 7 years, and then choose the death penalty. Incidentally, in 1966,
more Americans opposed the death penalty than supported it, and executions were
halted in 1967. They did not resume for ten years when support for the death
penalty had grown, possibly due to the fact that life imprisonment was seen as
being considerably less than an individual’s natural life, which is contrary to
the approach of life imprisonment without any possibility of parole.
However, when
the question is asked in the abstract "Do you favor the death penalty,"
the polls consistently show that between 60% to 75% are in favor. It would
appear, from recent polling, that we need to move away from the question in the
abstract and incorporate the following factors in any such polling for the
people to consider: "Considering the facts that millions of tax dollars
are spent each year on the trials and appeals related to capital punishment;
that there are no convincing studies proving deterrence; that the families of
victims cannot begin to have any sort of closure while the process continues;
that there are documented cases of innocent people being executed; that the
American Bar Association called for a moratorium on executions due to its
unfair and inconsistent application; and that America is alone among western democracies
that put people to death, would you be in favor of the death penalty if it were
guaranteed that the individual would receive life imprisonment without any
possibility of parole?" Although it is argued by some that there is broad
public support for capital punishment in the U.S., it can be said that in some
less civilized countries, mob killings and lynching enjoy public support as a
way to deal with violent crime. Further, countries such as Poland and Lithuania
have abolished the death penalty notwithstanding that opinion polls showed the
people in favor of it, as in Lithuania where 80% of the people favor the death
penalty.
Recently, a poll of 1000 Missouri homes that was taken by
the Center for Social Sciences and Public Policy Research at Southwest Missouri
State University revealed the following:
78% of the respondents did say they supported the death penalty when
asked in a general way, but the following responses are more significant. Only 46% supported the death penalty when
the alternative is life without parole and with restitution. 63% said that making sure the accused is
guilty should be the most important goal in achieving justice. 80% said that discovering that some who have
been executed and later were found to be innocent affected their opinion about
the death penalty. 56% expressed a
willingness to support a three-year moratorium on executions to investigate
sentencing practices and effects.
Supporters of
capital punishment say to legislators that to be against the death penalty is a
sure way not to be re-elected. Such was not the case in Massachusetts in the
November, 1998 election. State Rep. John P. Slattery, a former death penalty
supporter, made headlines last year with his last minute vote against capital
punishment that defeated the proposal. He won re-election with 60% of the vote
against a death penalty supporter, who was endorsed and supported by the
governor. Slattery stated that he thought the people understood that it's a
difficult and emotional issue, and believed the voters judged him on his record
on education and health care. Conversely, David Torrisi, who opposes the death
penalty, defeated Rep. Donna F. Cuomo, who switched her vote in the other
direction. In the last two elections in Massachusetts, opponents who support
the death penalty defeated no incumbents who oppose the death penalty.
The same
Missouri study referenced in the previous section found the following: Only 35%
of those polled said they would be less likely to vote for a state legislator
if that legislator voted against the death penalty. Nearly half the remainder (43%) said their vote would not be
affected, while 22% said they would be more likely to vote for such a legislator.
Unfortunately
when crime becomes a campaign issue the public is bombarded with simplistic
sound bites of crime rather than the complex realities of crime and
punishment. Rather than responding to
crime with understanding the public often responds out of fear, as was the case
when former President George Bush, in campaigning for the White House, used the
face of Willie Horton to engender fear and promote his aggressive stance on
punishment.
Throughout the
federal and state correctional institutions in the United States, older individuals,
including inmates removed from death row to the general population, are serving
effectively as mentors to younger inmates, particularly when the individual has
had some form of spiritual regeneration. This positive use of inmates, allowed
to live by a life imprisonment sentence, has been praised by some correctional
officials for helping younger men and women, particularly those with minor
crimes who may be eligible for parole, to rehabilitate themselves, particularly
if educational, drug treatment, moral and spiritual programs are offered at the
institution. Further, the individual could help to counsel young people outside
the prison against crime and drugs by mail and educational videos. An example
is Karla Faye Tucker of Texas. Tucker
did not deny that she should be held accountable for the crime, but had a
transformation on death row, and through her own reconciliation and redemption
was able to help other inmates as well as those outside of prison through
videos. Another example of mentoring by a death row inmate is that of Kenny
Wilson of Virginia with his two sons, DeShawn, age 13, and Tyrone, age 6. The
two boys speak to their father on the phone almost daily. They visit every
other month, and exchange letters frequently. Since the mother is in prison, it
is clear to everyone how much the boys depend upon their father's attention,
encouragement and support. All agree that there will be no replacement for
Kenny in the lives of his two sons if he is executed. Another example of how
inmates who are removed from death row can provide life beyond themselves is
reflected by a proposal in Missouri. In that state, an inmate on death row may
be offered a chance to donate organs in exchange for life imprisonment. The
ethics of this proposal are still under consideration.
|
"[a
life sentence] makes us more morally energetic about punishment." - David Bruck |
Philosopher Walter Berns writes,
"Capital punishment serves to remind us of the majesty of the moral order
that is embodied in our law, and of the terrible consequences of its
breach...The criminal law must be made awful, by which I mean awe-inspiring, or
commanding ‘profound respect or reverential fear’. It’s our way of expressing
our common beliefs in what’s right and wrong." However, Berns fails to
address the issue of deterrence, which has yet to occur from "awful"
penalties assigned to "awful" crimes. Also, his comments fail to
question the "rightness" of diverting tax dollars to this issue while
other needs, such as education, are neglected.
Death penalty foe David Bruck argues that life without parole is in some
ways more retributive than death, not only because the convict has to accept
his or her punishment for the rest of their days, but because "it makes us
more morally energetic about punishment." Further, some writers believe
that the death sentence implies that certain individuals have lost the right to
call themselves human, an idea that seems to run counter to the Founding
Fathers’ vision of inalienable rights, one of which is life, which can neither
be taken for bad behavior nor awarded for good conduct.
In terms of the authority of
the Bible, proponents of capital punishment can take certain verses or words
from the Bible, particularly from the Old Testament, to justify their
positions. Though there are numerous direct references in the Bible where death
is the suitable punishment for murder, it is also abundantly clear in the Bible
that death was also the punishment for many other “crimes” (i.e. contempt of
parents, trespass upon sacred ground, sorcery, profaning the Sabbath, adultery,
prostitution, etc.). So-called
pro-death penalty stances in scripture need to be taken in their proper
context. The Mosaic Law restricted how
much punishment could be imposed for various offenses. Often quoted is that
portion of the law that states " an eye for eye...." This was a rule
that attempted to make retaliation proportionate to the offense. The law of
"talion" moved Hebrew society from unlimited to limited retaliation.
Thus "an eye for an eye" was not a command to seek vengeance but a
limitation on such retribution. Similarly, opponents of the death penalty can
take certain verses or words from the Bible, particularly from the New
Testament, to state that God is not in favor of the death penalty. It seems
difficult to base one’s claim to justify the death penalty on the
interpretation of certain words out of their proper context that have been
passed down for centuries through many languages and translations. However, if
one is to use quotations from the Bible, two in particular seem most
relevant. In the Book of Deuteronomy,
it is written, "I have set before you life and death, the blessing and the
curse, Choose Life." Also, the Prophet Ezekiel advises "As I live,
says the Lord God, I swear I take no pleasure in the death of a wicked man, but
rather in the wicked man’s conversion, that he may live. Turn, turn from your
evil ways." Further, the core concept of restorative justice is mentioned
more than 100 times in the Bible. Paul McCold, the Quaker criminologist who
facilitated the discernment process at the United Nations to arrive at an
international working definition of restorative justice believes that the harm
done to "offenders" under current retributive practices is a leading
cause of recidivism. When harm is done in the name of justice, the cycles of
violence and crime are only perpetuated.
Many
theologians in their study of the biblical interpretation of the death penalty
believe that the matter stands on the life and teachings of Jesus Christ. His
entire ministry was life-giving, whether in the form of bread, water,
compassion, or words, and is summed up in his saying, "I came that they
may have life, and have it abundantly." Through the actions, words and the
very person of Jesus, each human being is given the possibility of knowing the
complete truth concerning the value of human life. Although there are numerous
examples in the Gospels to support the words of Jesus, only one will be cited,
that of the woman caught in adultery about to be stoned to death. Here, Jesus
encounters an execution about to take place. And he demands that both judges
and executioners be sinless. He personally stops it. Then He adds a new
requirement to be applied in the future "Let the one who is without sin
cast the first stone."
Sister Helen
Prejean, author of the book Dead Man Walking which was made into a
well-received movie, said we should be outraged by the violence of the crime,
but added that we need to take that outrage and view it through the prism of
the teachings of Jesus Christ. As one writer expressed it " the commitment
of Jesus to non-violence could not be clearer, but it seems that Christians
have chosen not to follow this teaching. There appears to be a chasm between
Jesus' teaching and what people are willing to do and say. It seems that it is
important to "reteach" people about what are the fundamental
teachings of the religion to which they pretend to adhere." On Christmas
Day 1998, Pope John Paul II’s address marked one of his most unequivocal and
unconditional calls ever to end the death penalty. He warned "against
indifference toward hate and violence" and issued an urgent call to end
the death penalty.
It is clear
that the death penalty allows the criminals lack of respect for life to dictate
the nature of the state’s response.
Former Supreme Court Justice William J. Brennan wrote in 1996 "One
area of law more than any other besmirches the constitutional vision of human
dignity . . .. The barbaric death penalty violates our Constitution. Even the
most vile murderer does not release the state from its obligation to respect
dignity, for the state does not honor the victim by emulating his murderer.
Capital punishment's fatal flaw is that it treats people as objects to be toyed
with and discarded.”
Alexander
Solzhenitsyn in The Gulag Archipelago states it well. "If only it
were all so simple! If only there were evil people somewhere insidiously
committing evil deeds, and it were necessary only to separate them from the
rest of us and destroy them. But the line dividing good and evil cuts through
the heart of every human being. And who is willing to destroy a part of his own
heart?"
The late
Cardinal Bernardin, a prelate in the Roman Catholic Church, led the way to a
broader vision on a consistent ethic of life: all life - every life, he stated,
is like a "seamless garment." According to James Megivern in his book
The Death Penalty, "The deliberate killing of human beings is not an acceptable
option." He continues in eloquent fashion, "The magnitude of a crime,
its hideous, heinous, gruesome, grotesque circumstances and details are not and
cannot be the issue. Life is the issue, and deliberately destroying human life,
all human life, any human life is wrong period. Punishment, Yes, Death, No.
People are not to be killed - by any right that the state possesses legally,
not in God’s name, by revenge, not to deter another, not at all. This is the
nature of the right to life, the dignity of the human person, the law of God,
and the teaching of Jesus. Every person has universal, inviolable, inalienable
rights, Basic to all other rights is the Right to Life."
In the
recently revised Catholic Catechism (1997) the Church clarifies the Catholic
commitment to life. “If, however,
nonlethal means are sufficient to defend and protect people's safety from the
aggressor, authority will limit itself to such means, as these are more in
keeping with the concrete conditions of the common good and are more in
conformity to the dignity of the human person. Today, in fact, as a consequence of the possibilities which the
state has for effectively preventing crime, by rendering one who has committed
an offense incapable of doing harm - without definitely taking away from him the
possibility of redeeming himself - the cases in which the execution of the
offender is an absolute necessity are very rare, if not practically
nonexistent.”
The “dignity
of the human person” is part of what led a prison warden named Donald Cabana to
leave his job. Donald says that he could no longer peacefully co-exist in his
role in what Pope John Paul II calls the “culture of death.” Donald said “ I was the one who walked an
inmate into the gas chamber, and oversaw the execution. I often wondered what
my six children thought of their Father in what I did. I wondered what my wife
and lifetime companion thought of her husband, but most importantly, what will
my God ask of me when I am judged.”
Donald goes on to say “ I recall the last inmate that I executed. He was
like a son to me. As I walked him into the gas chamber, he turned and said to
me “I love you; thank you for treating me like a human being. I love you for
that.” “At that very moment,” Donald
recalls “I believe that we both understood clearly the culture of death. There
is a dignity to which each human being is entitled, and when we strip off our
titles of warden and inmate, we were just two ordinary people standing there
realizing that THE CULTURE OF DEATH VIOLATES OUR VERY PRECEPTS OF OUR EXISTENCE.” The warden concludes by saying, “this is not
to say that we forgot the horrible thing that happened, and that the victim’s
parents will never see their son go to his prom, and grow older. However, at that very moment, I realized
that the State and me as its agent were even more violative to the principle of
life than this young inmate had been. We are supposed to be better than
this.”
After reviewing all the
above factors, it seems clear that death as a penalty fails every conceivable
test not only of penal theory, but also of rational public policy. Even if one
disagrees with one or more of these factors, the overwhelming evidence is that
the death penalty is an emotional response, not a rational response. Since this
is so, is it not necessary to consider a moratorium on executions in the 38
death penalty states and the federal government until rational alternatives are
found that are acceptable to the public? One alternative to the death penalty
is a Life Penalty Act. This law would impose
life imprisonment without any possibility of parole as a replacement to the
death penalty. The only exception would be commutation by the governor, which
is very rare. Another alternative is life imprisonment without parole with
restitution. To place a penalty of life
imprisonment without any possibility of parole on an individual lets citizens
know that society is serious with criminals who take the life of another.
Further, individuals would be required to perform work and other details within
the prison, limiting to a minimum the free time for such activities as
television. However, these individuals would be given the opportunity and time
for regeneration of their bodies, minds and spirits in order to help other
inmates turn their lives around, as well as to give each of them hope that
their lives can be beneficial to the lives of others.
* Sources for this presentation have included numerous research sources and articles such as Time and Sojourners magazines; the Death Penalty Information Center in Washington, D.C.; the publication titled The Case against the Death Penalty written by Professor Hugo Adam Bedau; the article Death as a Penalty, by Howard Zehr of the Mennonite Central Committee; the Justice Center at the University of Alaska; The Death Penalty, an Historical & Theological Survey by James Megivern; Dead Man Walking by Sr. Helen Prejean, Amnesty International USA, as well as articles and discussions with criminal justice and correctional officials throughout the country. For further information contact the writer, Jack Callahan, by email at our website of New Jerseyans for a Death Penalty Moratorium, www.njmoratorium.org. (Updated as of 10/8/2000).