The death penalty: Who decides?

Maryland is the latest state to ban the death penalty.

When I discuss this issue with other people, strong feelings take over, and often emotion prevails. This is understandable; I cheer when the bad guy dies in the movies, and I’m happy Tim McVeigh and Osama bin Laden are no longer around.

The problem is that there is a balance to be met when dealing with the law: While you should not be Mr. Spock, ignoring your emotions, you cannot also be Dr. McCoy, letting your emotions overwhelm your logic. Yes, some people deserve to die.

The problem is this: Who makes that decision?

Some people would like to see rapists put to death. Others think anyone who commits a murder should automatically be given the death penalty. There are probably people who think drivers who don’t turn off their turn signals should get the death penalty.

If we say that it should only be applied in the most heinous of cases, then we still have that problem. Who decides that the crime is so terrible that the death penalty applies? Well, a jury first, of course, and then a judge. But wait a minute — that’s what we have now.

And this is where we meet the real problem: Our system of justice is not perfect.

Trust me, I do this for a living. Innocent people get found guilty all the time (and guilty people get found not guilty, too). I don’t think I have to cite all the cases of people on death row who have later been found to be innocent (including some who confessed — although usually the confessions were coerced or they have mental problems). And who knows how many we have already executed who we’ll never know if they were innocent because no one is researching their cases like they’re doing with those currently on death row?

So long as we have a system of justice that is not 100% perfect, we should not have a penalty that is 100% irreversible.

15 thoughts on “The death penalty: Who decides?

  1. Pope John Paul II (of all people) opposed the death penalty in all but the most extreme cases, and he was pretty explicit about those cases: “when the murderer keeps killing even while incarcerated, to protect the other prisoners”. Then again, this is the guy who publicly forgave the man who shot at him.

    I disagreed with that pope about a lot of things, but he was astonishingly consistent about this one.

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  2. Hopefully the conversation here will not include psychotic fantasies of my family being raped and murdered.

    I think the key to what you said was in the fact that the system is not 100% infallible. In fact, since 1950, 142 death row inmates were exonerated before execution. If those executions occurred, that would have been 142 times that our society would be guilty of the wrongful death of one of its citizens.

    In 2010, the US ranked at #6 for the number if executions. Approximately 40 nations still use the death penalty in practice, and it is a veritable laundry list of the worst violators if human rights. Since 1863, over 100 nations have banned the death penalty, I would say we are way behind the times on this one.

    We have a prison system that doesn’t rehabilitate, it punishes. But it doesn’t work. The recidivism rate for felons (an arrest within 3 years of release) is 67.5%. As long as we cling to the emotional notion that criminals just need to “serve their time” or ” get what they deserve”, nothing is going to change.

    I am certainly not showing pity for, or arguing for the side of criminals. I’m just saying the system is broken, it doesn’t work. Executing inmates has done zero to diminish crime, it is merlely the emotional response of a vengeful society.

    People say a system like Norway’s is soft on crime, and doesn’t punish criminals the way it should. Their recidivism rate is one of the lowest in the world. In the end, that means their streets are safer. Which in the long run, isn’t that what we should really care about?

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  3. I have always been a believer in the death penalty BUT always wanted to know how we could be 100% sure that the judge and jury were correct. Unfortunately we can’t. I know of instances where family members have confessed to a crime they did not committ to keep other family members out of the judicial system for one reason or another, yes even to felonies but not murders or rapes or “heinous” crimes. These people have served years, lost voting rights and other “rights” just to protect someone else, be it right or wrong; it is done and the guilty allow it to happen.

    I do not like my hard earned money paying to keep people who commint murder, rape and other horrible crimes in jail for a lifetime. If the system can come up with a way for them to support themselves. the people it takes to maintain the jail, the lawyers for their multiple appeals and keep the criminal imprisioned, I would support this.

    Until then I will have to rely on DNA, lawyers, judges and juries to convict the right people and provide the appropriate sentencing, including the death sentence.

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  4. I know it’ll be no surprise to you, Mike, but I both agree and disagree. I agree that the death penalty should not be used, except – and this is where I disagree with you – in the most clear-cut of cases. But it should not be abolished. You say our system of justice is not 100% perfect, and it’s not. But that is the looking at the entire picture. What we’re talking about is the legal execution of a single person, and on a case by case basis, there really are cases where the the system is perfect; where there is not a shadow of a doubt.

    Every possible consideration should be given to a person on trial for a crime that could potentially impose the death penalty if convicted. I agree completely with that. Personally, I would have preferred that Saddam Hussein been tried, given every opportunity at defense available, and then executed should that penalty have held up.

    But if we argue that there should be no death penalty unless the entire system is 100% perfect, then are we saying that the death penalty imposed by police during a shooting should be abolished? When police shoot, they shoot to kill, with the preservation of innocent life being of the greater value over the life of a person, who it appears, has been killing people and is threatening to kill more people.

    If we say, “Shoot to wound!”, thus taking the 100% perfect approach, then others may die. If we say “Shoot to kill!”, are we saying, “The evidence is indisputable and the risk too great” and the death penalty, with no trial or appeal, is declared.

    But if we take such a person alive – say, by surrender – and there is no death penalty, then we are presented with the scenario where police can shoot and kill a person for the actions they have not yet committed, but the justice system cannot execute that same person for the murders they already have undeniably committed.

    In fact, I would prefer a death penalty that can only be imposed in such a situation where there is absolutely no doubt as to the crimes committed. And I’m inclined only for murder in the first degree in peace time, and also treason in a time of declared war. The Aurora shootings are an example. If it is 100% clearly demonstrated that Mr. Holmes committed the murders and in the first degree, and the jury agrees unanimously on both verdict and death penalty, then sentence is declared and carried out in a timely fashion. If the jury is 99.99% sure, then they can convict, but no death penalty can be imposed.

    The death penalty serves a purpose, and though gruesome, harsh and permanent, I believe it to be a required weapon of justice that should be dealt without anger or emotion upon those who are absolutely, 100%, worthy of it.

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    • Well, I don’t want to just repeat myself, but my worry is that by saying “Well, it’s OK in those 100% cases” then we’re going to end up right where we are now.

      Once more, I have no problem with the death penalty in general for those kinds of crimes; my worry is that we — fallible human beings — are going to decide when there is that “100% case.” And we can be wrong. And that’s why I’d rather err on the side of caution than open that door, which will surely lead us right back to our current position.

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  5. I am a Christian, and because I am, I oppose the death penalty wholly. First of all, there are those Top Ten Commandments, one of which is Thou Shalt Not Kill. Not, Thou Should Not Kill Unless Really Pissed Off, or Thou Shalt Not Kill Unless the Other Person Killed First. Thou Shalt Not Kill, period. The death penalty is nothing than state-sanction murder and goes against one of G-d’s most important laws.
    Second of all, Jesus Christ taught us that as Christians, we must turn the other cheek. We must forgive our enemies. (I’m not saying no punishment, but there should also be compassion and rehabilitation.) I don’t believe it is the right of humans to take another life, under any circumstances. (Would be nice if there were no war, wouldn’t it?) I believe only G-d should decide when someone dies, because G-d _is_ infallible and omniscient. I don’t see how anyone can believe in the Christian Holy Trinity, and then support state-sanctioned murder.
    I also live in a country where certain rights are guaranteed. The Eighth Amendment of the United States Constitution states that we will not inflict cruel and unusual punishment. Read up on the methods of state-sanctioned murder. Really learn about them. They clearly fit the first of the criteria Justice William Brennan defined. (IMO, they also fit the last; the other two are debatable. I’m not unreasonable.) The methods we use are unutterable cruel…sadly, they are all too usual in this country.
    Finally, it comes down to a simple question. How does people killing people who kill people to show that killing people is wrong makes sense?

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  6. See, Mike, this is where we differ. I don’t require 100% infallibility. I require a system that is designed to be as infallible as possible (side note: I think “jury by your peers” rather than “professional jury” is the wrong approach to reaching that goal). If the system makes every reasonable effort to reach justice AND errs on the side of accused, then I can accept that occasionally it will punish unjustly (note, unjustly, but not incorrectly). And, yes, I can accept that in rare circumstances that unjust punishment will be irreversible (arguably all punishments are irreversible except possibly fines), because perfection of the system is NOT an acceptable requirement when determining appropriate deterrent for the law.

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  7. Is executing inmates in the best interest of society?

    As a deterrent? I have read many scholarly articles on the subject, and a vast majority (as high as 88%) of Criminologists do not believe that the threat if execution provides any additional deterrent beyond the threat of life in prison. Most of the crimes which would warrant the death penalty are committed in the heat of the moment, under the influence of drugs or alcohol, or by a mentally unstable person. According to these experts, the additional penalty does not come in to play in the mind of the criminal.

    Would it save us money? Again, any scholarly work I have read says certainly not. The State of California spent millions every year on death row inmates, estimated at more than $90,000 per inmate more than an inmate with a life sentence. The cost of additional court time, appeals etc to insure that an execution is not performed on an innocent person creates a huge financial cost.

    Does it create a society that values life? I would certainly say no. Individuals tend to act in emotional and irrational ways at times. The State must never do so. The State is not seperate from us, but rather nothing more than the collective will of the people. It should set the example that killing is never acceptable (full disclosure, I am also very opposed to War). I don’t see how the collective can kill and set the example that it is wrong for an individual to kill.

    Finally, does executing criminals make us the leader on the world stage we regard ourselves to be? I would again certainly say no. If you look at the other nations that routinely execute, China, Saudi Arabia, Iran, Yemen, is this company we wish to keep as the beacon of a free democracy? These countries are the worst examples of civil rights violations. The death penalty puts us in a category with some of the most primitive and brutal backward thinking nations in the world.

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  8. I would use the old comeback on the value of the death penalty as a deterrent: 100% of executed criminals never commit another crime. That’s a pretty good deterrent.

    And the death penalty does save money. It is the defense against the death penalty, which is allowed to drag on for years – sometimes properly, sometimes not – that costs all the money. And you are assuming that the extra costs for defense would not be incurred by a convicted person given a life without parole sentence. Or that, having exhausted all appeals, the expense of keeping that prisoner for the remainder of his life; perhaps 40, 50 or 60 years? And the influence that prisoner – remember, a mass murderer – would have on fellow inmates he comes in contact with? Inmates that may one day re-enter society.

    As for a society that values life: We live in a society where abortion is legal at virtually any time, for virtually any reason. Where the rights of the unborn are not in effect, not considered, and are considered lower than the worst criminal on the earth. How many of the millions of abortions that have legally taken place were of a child, a viable living human? None? A dozen? Hundreds? Where is our value of life?

    The State does have the right to put to death those it deems worthy of it. To say “nothing more than the collective will of the people” is to dismiss the value of society itself. In fact, it is the epitome of human advancement that we have formed civilizations that are capable of co-existing, advancing, and bringing order. Everyone of them are flawed, but virtually all of them provide more benefit than utter anarchy, where there would be no death penalty. It would just be death.

    To think that we can exist is a lovey-dovey world where we all get along and there’s no crime, no criminals, no murderers, is an admirable goal. But it is not an achievable goal, though it should be striven for . Blind Justice holds the sword, but holds higher the scales. The eagle holds the olive branches but also the arrows. The message is clear: Balance must be maintained, and to maintain that balance, there must also be responsibility to do those things which we wished we didn’t have to, yet must.

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    • You apparently think that our laws are inconsistent because we allow abortion and yet also have the death penalty and therefore we don’t care about “life.” Yet you dislike abortion but approve of the death penalty. How is that any less inconsistent?

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  9. I have a few issues with your rebuttal.

    First, the definition of deterrent is “a thing that discourages someone from some act”. When we are talking about a convicted criminal, we are talking about rehabilitation or punishment, whichever you see as a more appropriate term. Criminologists when using the term “deterrent” are referring to consequences which discourage the individual from committing the crime in the first place. A technique to lower recidivism is not the type of deterrent we are talking about.

    Next, the studies I refer to certainly take into account the cost of life without parole in comparison to capital cases. Most conservative estimates show that a trial in which the death penalty is sought cost at least 5 times a case where life in prison is sought. The appeals process cost an additional $90,000 per year per inmate and death row inmates spend on average at least a decade on death row before execution. We could speed up the process, but we increase the chance for error and execution of an innocent life. This is both immoral and unconstitutional (at least according to the Supreme Court who set the guidelines for capital cases).

    The issue of abortion I feel is tangential and not applicable to a discussion on the death penalty. The two are not the same, and I’m betting Mike will have a blog entry on abortion at some point in the future, and we can delve into that issue in greater detail then.

    As far as the statue of Justice, I am a huge mythology nerd, and could bore you with long details of the origins and symbolism of the various aspects of Justice. The sword symbolizes the “power” of the judicial system, and not specifically a power to execute. That was a component of the fasces (an axe surrounded by a bundle of rods) which the axe component did specifically symolize the power to take a life. The deities of justice carried the fasces in previous cultures, our statue does not. So, I would counter that we have evolved past killing our own, what I consider a more primitive tribal form of justice based more on vengeance than the higher morals that our civilization has achieved.

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  10. If a person is unwilling to follow the most fundamental rules of the society they live in, it is appropriate for that society to remove the person from the society permanently. Jail without parole accomplishes this, but unnecessarily forces the society to succor that person without any return for that succor. Death and exile also accomplish this. I can accept either. You don’t like death, find a way to put exile back on the choice of punishments.

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  11. Pingback: Constitutional Amendments I’d add |

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