“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment. For even the very wise cannot see all ends.”- J.R.R. Tolkien
On Monday, February 1st, the United States Court of Appeals for the Third Circuit upheld the constitutionality of Delaware’s death penalty. Executions, stayed since 2006, may now resume.
After much prayer and reflection on this issue, I must call on our Legislature to abolish the death penalty. Although not unconstitutional, capital punishment cannot presently be justified as a criminal penal sanction.
I understand that my views on the propriety of capital punishment do not comport with those of a majority of my Republican friends. With that in mind, let me attempt, in brief, to lay out the factors that have influenced my own thinking on this issue.
The moral horizon
As a conservative who believes in an enduring moral order it is appropriate to begin this discussion with a brief examination of the morality of capital punishment in general.
In this regard, being a Catholic, I turn to the Catechism of the Catholic Church, which states:
Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.
If, however, non-lethal 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 more in conformity with 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 definitively 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 non-existent”.
(emphasis added). Capital punishment is not intrinsically evil or wrong, and may be permissible under rare circumstances. The question therefore, becomes whether those circumstances exist.
One innocent life?
The first predicate to capital punishment is a criminal justice system capable of determining a guilty person’s identity and culpability with the requisite level of certainty.
But what is the requisite level of certainty?
From 1976 to today, roughly 1200 offenders have been put to death in the United States. During this same period, approximately 140 convicts on death row have been exonerated of their crimes.*
These figures are troubling. The number of individuals on death row that have been exonerated is almost 12% of the total number of offenders executed. Thus, it stands to reason that some small percentage of the inmates currently on death row are in fact innocent of the crimes that they have been convicted for. It is unreasonable to assume that all those who have been wrongly convicted are ultimately exonerated. The inescapable conclusion to draw from these figures is that innocent individuals have been executed in the past, and will be again in the future.
At the same time, other data point to systemic flaws in the application of the death penalty within our criminal justice system. In brief, there is evidence that socio-economic status, race (of the offender and more significantly, of the victim), and even geography, play key roles in who lives, and who dies.
For example, about 90% of the criminal defendants sentenced to death could not afford to hire their own lawyer. Puzzlingly, despite the fact that African American’s account for half of all homicide victims, more than 80% of those sentenced to death in the United States were convicted of killing a Caucasian. Various studies have also shown that the application of the death penalty varies widely within states that permit it.
Put simply, I do not believe that our criminal justice system is capable of establishing the identity of guilty individuals with the level of certainty necessary for capital punishment. At the same time, I am deeply trouble by the apparent role that socio-economic status and race play in capital sentencing. The J.R.R. Tolkien quote at the beginning of this blog speaks to this issue- given that some on death row are innocent, we should not be so hasty to deal out death in judgment. The risk of erroneous convictions, and the execution of innocent persons, is unacceptably high.
The Rest of the World
At the same time, the evolving Western moral consensus is clearly against capital punishment. At present, the United States is one of the last Western democracy’s that still practice capital punishment.*
For example, as of this writing, only 3 (out of 50) nations in Europe retain the death penalty. One, Russia, has a moratorium on further executions. One, Latvia, has abolished capital punishment except during wartime. Only one- Belarus- continues to practice capital punishment.
Is that the sort of company we keep? Is Belarus in the vanguard on human rights’ issues? Does she boast the world’s most evolved criminal justice system? Hardly, Belarus is a third-rate petty thugocracy. We should aspire to better.
Speaking of the company we keep, according to Amnesty International, the United States ranked fourth internationally in the number of executions carried out in 2008, behind China, Iran, and Saudi Arabia. We were ahead of Pakistan which came in at number five, followed by Iraq, Vietnam, Afghanistan, and North Korea. Our industrial democracy peers are conspicuously absent from this list.
Even within the United States, 15 states no longer have capital punishment.* Delaware should join their ranks.
Dollars and Sense
One additional argument against capital punishment is that a death sentence is more expensive than life without the possibility of parole.
For example, a 2005 report in the LA Times found that California incurred an additional $114,000,000 per year beyond the costs of life imprisonment due to the death penalty. Similarly, a study from 2002 determined that the costs of having the death penalty in Indiana exceed the cost of life without parole by roughly 38%.
These figures are not inconsequential- it would seem that a sentence of life without the possibility of parole actually saves the taxpayers money.
But what of deterrence?
The best argument summoned by defenders of capital punishment is often that it plays a deterrent role- in other words, that having the death penalty on the books reduces violent crime.
I doubt it. First, the application of the penalty- death- is far too temporally removed from the criminal act at issue for the sanction to have much deterrent value. Typically, years pass between the conviction, and the application of the death sentence while the criminal defendant exhausts various appeals. Also, as noted above, the roles played by socio-economic status, race, and geography in sentencing, mitigate against any broad deterrent effect.
Indeed, Texas alone accounts for over 38% of the capital sentences carried out in the US since 1976. Texas, Virginia, and Oklahoma combined account for well over half of the total US executions during this period. How, given this most unequal application of the death penalty geographically, can it be credibly argued that capital punishment has a deterrent effect nationally, or here in Delaware?
Conclusion
Cardinal McCarrick, Archbishop of Washington, has written that “…the death penalty diminishes all of us, increases disrespect for human life, and offers the tragic illusion that we can teach that killing is wrong by killing.”
Even the very worst criminals among us never cease to be human beings. Capital punishment is licit only in those rare circumstances where death is the sole effective means available to government for defending innocent lives against aggression- such as during times of extreme civil unrest/insurrection, or in the context of military justice. None of these situations obtain in Delaware at present. Moreover, the data shows both that innocent persons receive capital sentences at a suprisingly high rate, and that the death penalty is applied inconsistently and arbitrarily in the United States.
Delaware should join the evolving Western moral consensus on this issue and abolish capital punishment. The law can be a teacher- here, let the lesson be that all human life has value.
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*Source: Death Penalty Information Center
* About 1/3 of the world’s nations have capital punishment. Aside from our own, the list (as of 2009) includes: Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, Chad, China, Comoros, Democratic Republic of Congo, Cuba, Dominica, Egypt, Equatorial Guinea, Ethiopia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Mongolia, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan, Thailand, Trinidad And Tobago, Uganda, United Arab Emirates, Vietnam, Yemen, and Zimbabwe. This is the company we keep.
* The 15 are Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin. In addition the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands do not presently have the death penalty.