Death's Dwindling Dominion

As we enter the 21st century, Americans have never been more divided over the proper role of the death penalty. Some of us (still a minority) would like to see it entirely abolished -- and we have achieved this goal in a dozen states, beginning with Michigan in 1847 and most recently in Vermont in 1987.

At the other extreme, a smaller minority wants an expanded death penalty -- a goal unlikely to be achieved given recent DNA findings, court rulings, and shifts in public opinion. A plurality of the public at present believes there is a proper, albeit rather narrow, role for capital punishment, confined to the most egregious crimes, notably first-degree murder with multiple victims, serial killings, terrorism, or murder committed by a recidivist. Such support weakens still further when respondents are offered the alternative sentence of life without parole. In the face of these facts, America's seeming infatuation with the death penalty looks about an inch deep and a good deal less than a mile wide.

Defenders of execution typically rest their case largely on three grounds: deterrence, incapacitation, and retribution. When the death penalty was a lawful punishment for many different crimes (as recently as the 1960s), deterrence and incapacitation were the primary rationales. But today, empirical support for any special deterrent effect receives little or no endorsement from the nation's professional criminologists. And even if there were some such effect, society is not entitled to that benefit as long as criminal-justice systems operate with gross unfairness in deciding who should receive a death sentence. As for incapacitation, the experience in a dozen abolition states and internationally shows that convicted murderers can be safely incarcerated and need not be executed in order to prevent them from being a threat to the public (or to guards, visitors, or other prisoners).

Retribution is another matter. Because it is not an empirical principle, retribution cannot be defended or criticized on empirical grounds. Instead, the case for retribution rests on moral considerations, chiefly the proposition that murderers deserve to die. The rebuttal from abolitionists often takes the form of a challenge: Do rapists deserve to be raped? Do kidnappers deserve to lose their children? Should arsonists have their dwellings burnt? If they should, why don't our laws reflect this fact? If they shouldn't, why do we make an exception in the case of murder? All parties to the death-penalty controversy must agree that in the vast number of cases where crimes are punished under law, there is simply no way to tell, a priori, exactly what an offender "deserves." What punishment does an embezzler deserve? How about an unlicensed deer hunter? Answering questions about desert in the abstract is virtually impossible. No wonder our criminal-justice system confines the role of desert to answering the question, who deserves to be punished? (Answer: the guilty.) That leaves the other question -- what punishment does the offender deserve? -- to criteria set by legislatures and courts.

Many who might naturally be the most vocal in demanding retribution in fact turn out to oppose the death penalty. Murder Victims' Families for Reconciliation, for example, has become a leading opposition voice in the debate over capital punishment.

Opponents of the death penalty typically rely on three main moral principles. First, there is the right to life. Even if this right is not absolute, it places a heavy burden on the practice of execution by the state. Second is the principle that the administration of any criminal-justice system must be fair. Yet fairness in the selection process -- who shall live and who shall die -- is routinely undermined by such widespread practices as the provision of incompetent defense counsel and racial bias, which increase the risk that innocent defendants will be executed. Third, there is the principle that governments ought to use no more violence in pursuit of a just end than is necessary to achieve that end (and there is accumulating evidence that the death penalty serves no necessary criminal-justice purpose).

Canada, Mexico, and all European nations (as well as many other countries) no longer use capital punishment. Our professed global advocacy of human rights becomes suspect when one considers the extent to which our government tolerates a death-penalty system that looks to many other nations like flagrant indifference to the international law of human rights.

Public policy on the death penalty is not determined only by public opinion, empirical evidence, or moral principles. Our appellate courts, notably the state supreme courts and the U.S. Supreme Court, have modified many aspects of capital jurisprudence by constitutional interpretation. The most recent such narrowing occurred in 2002, when the Court ruled that a person suffering from mental retardation could not be subject to a death sentence. The next most likely such limitation will come in the form of barring the execution of juveniles (persons under 18 at the time of the crime) -- a prohibition endorsed years ago by most nations and guaranteed in the laws of more than two dozen American death-penalty jurisdictions. Both of these issues represent important practical constraints, even if they fall short of a constitutional prohibition of capital punishment.

In recent years, public opposition to the death penalty has been chiefly focused on the risk of executing the innocent and on the narrow escapes of death-row convicts who had the good fortune to have their innocence vindicated before a death sentence could be carried out. During 2002 and 2003, national attention was concentrated on Illinois, where Governor George Ryan imposed a moratorium on executions and created a special commission to recommend improvements in the administration of the death penalty. As he left office, Governor Ryan stunned the nation by canceling all of Illinois' death sentences on the ground that the system that produced them was too flawed, too unreliable to accept its product.

During the past decade or so, arguments over the innocence of death-row convicts (as well as of many other prisoners) have taken on a new form thanks to the development of DNA testing. Both sides of the death-penalty controversy have effectively agreed to abide by the results of such tests, thereby removing the controversy over innocence in particular cases to a level of scientific objectivity hitherto unavailable. Unfortunately, however, DNA testing is often of no use in the kind of case that gives rise to most of the worst errors in capital cases: a conviction based on perjured testimony, incompetence of the trial attorney, unavailability of expert witnesses, or racial bias in the police station, prosecutor's office, or jury room.

Opponents of the death penalty confidently insist that it is just a matter of time before a well-documented case occurs in which an innocent defendant is executed. Friends of the death penalty take comfort in their belief that, so far, there is no case on record (in recent times) in which the innocence of the executed prisoner is beyond doubt. Meanwhile, it remains unclear whether the moratorium created in Illinois will prove to be the vanguard of a national movement or only a singular exception (as it has been so far) owing to the large number of documented cases of innocents on Illinois' death row.

What are the prospects for the future of the death penalty in the United States? Although states like Texas seem as wedded to capital punishment as ever, the realization that hundreds of innocent prisoners have been on death row has caused an overdue shift in public opinion and public policy.

In addition to court rulings and state laws limiting capital punishment, 13 states have recently set up death-penalty commissions. The North Carolina Senate passed a bill in 2003 imposing a moratorium on executions until troubling issues of fairness, due process, and racial bias are addressed. Last year, there were fewer executions (65) than in the modern peak year of 1999, and outside the Deep South only three states carried out any executions. Even in Texas, the state most vigorously committed to capital punishment, the Senate passed a bill to create an innocence commission. Texas Governor Rick Perry signed legislation providing $20 million for legal defense of indigent defendants in capital cases. At the federal level, the House -- by a margin of 357 to 67 -- passed the bipartisan Innocence Protection Act, including funding for DNA testing and grants to states to improve the quality of legal defense for those who could face the death penalty. The Senate is expected to take up the bill.

So, rather than a complete end to the death penalty in the near future, we may see a gradual narrowing and a de facto semi-abolition. This would represent progress. A century ago lynching flourished in the Deep South, and the rest of the nation struggled to bring it to an end. Perhaps before too long we may come to regard the death penalty with the same horror with which we have learned to view lynching. The only way in which the nation as a whole could rid itself of the death penalty is by federal constitutional interpretation, relying on such principles as equal protection of the law, due process of law, and the prohibition against cruel and unusual punishment. However, given the conservative mood of the Supreme Court, these piecemeal reforms and narrowings, though heartening, are not likely to lead to complete repeal anytime soon. The late Supreme Court Justice Thurgood Marshall was right: The more one learns about the death penalty, the less inclined one is to support it. The slender majority of the public that still supports executions is unlikely to see its numbers grow.

The several essays in the pages that follow take the argument against the death penalty into greater detail. Their cumulative effect makes a strong case for national abolition, and the sooner the better.