capital punishment – Sheila Kennedy

Defending The Indefensible

The Independent, among other publications, reports that the United States has voted against a U.N. resolution condemning laws that punish same-sex couplings with death. The lede suggested that America’s vote was yet another example of the Trump Administration’s homophobia.

The US is one of just 13 countries to have voted against a United Nations resolution condemning the death penalty for having gay sex.

Although the vote passed, America joined countries such as China, Iraq and Saudi Arabia in opposing the move.

The Human Rights Council resolution condemned the “imposition of the death penalty as a sanction for specific forms of conduct, such as apostasy, blasphemy, adultery and consensual same-sex relations”.

It attacked the use of execution against persons with “mental or intellectual disabilities, persons below 18 years of age at the time of the commission of the crime, and pregnant women.”

Although racism, homophobia, and misogyny are central to this administration, and are core elements of Trump’s appeal to his base, attributing this vote to those bigotries is misplaced.

Not that the absence of those motives is exculpatory. The real reason for the “no” vote was something equally indefensible: support for America’s continued use of the death penalty.

Heather Nauert, State Department spokesperson, told The Independent: “The headlines, reporting and press releases on this issue are misleading. As our representative to the Human Rights Council in Geneva said on Friday, the United States is disappointed to have to vote against this resolution. We had hoped for a balanced and inclusive resolution that would better reflect the positions of states that continue to apply the death penalty lawfully, as the United States does.

“The United States voted against this resolution because of broader concerns with the resolution’s approach in condemning the death penalty in all circumstances and calling for its abolition.

I believe her–but to use language appropriate to criminal justice, that explanation doesn’t exonerate us. It just confirms our position as an outlier among civilized countries.

Forget the moral arguments, compelling as many of us find them.

Decades of scholarship have confirmed that capital punishment is not a deterrent to violent crime. When I last researched the issue, in 2010, I found that states with the death penalty reported murder rates higher than the rates in states without it. Police agree. In multiple polls, police chiefs rank the death penalty last among ways to reduce violent crime; they also consider it the least efficient use of taxpayer money, and complain that it diverts money from more effective crime control measures.

Then there are the fiscal issues.

In 2010, Indiana’s Legislative Services analyzed capital punishment costs in Indiana, and determined that the average cost of a capital trial and direct appeal was over ten times the cost of a life-without-parole case. In California, taxpayers pay 114,000,000 more each year than it would cost to keep those same offenders imprisoned for life. In Kansas, capital cases are 70% more expensive than non-capital cases, even including the costs of lifelong incarceration. In Texas, a death penalty case costs three times what it would cost to imprison someone in a single cell at the highest security level for 40 years.

Advocates of the death penalty often complain that the higher costs are a result of “interminable appeals,” but that isn’t actually true. Appeals do add costs, but a capital trial is very expensive. Cells on death row and extra staff also cost more.

Of course, we could eliminate appeals and execute people immediately upon conviction. That would save money. Unfortunately, that “remedy” raises another pesky problem with capital punishment—the fact that America’s courts convict innocent people, and do so a lot more frequently than we like to admit. Between 1973 and my 2010 research, over 130 people had been released from death row because they were found to be innocent. These were not folks freed on a “technicality,” they were people who had been wrongfully convicted.

It isn’t just death penalty cases that result in wrongful verdicts, of course; since the establishment of the Innocence Project, the substantial number of exonerations in all categories has testified to the persistent flaws in America’s criminal justice system.

Making “crimes” like blasphemy, adultery or gay sex punishable by death is worse than medieval. But so is continued imposition of the death penalty.

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“Inoculation”

I once debated a law school professor who supported the death penalty. His argument was simple. Capital punishment is like vaccination (this was before the rise of the bizarre anti-vaxxer phenomenon). As he saw it, vaccination makes a very few people ill, while preventing disease in millions of others. With capital punishment, a few innocent people are executed, but many more people are kept safe.

( I asked him whether he’d feel that sanguine about a “few mistakes” if he were innocent and on death row. But I digress.)

More to the point, there is no credible evidence that capital punishment has a deterrent effect that protects anyone. Especially in “crimes of passion”–where one angry spouse picks up that easily-available gun and offs the other, for example–the notion that the shooter indulges in a cost-benefit analysis before pulling the trigger is ludicrous.

If we really wanted to deter murder, we’d limit possession of guns.

Justice Scalia once suggested that the execution error rate was minimal, around 0.027%. As usual, his figure was a product of ideology rather than research.

Four scholars–Samuel Gross (University of Michigan Law School), Barbara O’Brien (Michigan State University College of Law), Chen Hu (American College of Radiology) and Edward H. Kennedy (University of Pennsylvania School of Medicine)–recently examined data from the Bureau of Justice Statistics and the Department of Justice in an effort to estimate the rate of false convictions among death row defendants.

After examining 7,482 cases, they estimated that 1 in 25 death row inmates are wrongly convicted. They conclude: “With an error rate at trial over 4%, it is all but certain that several of the 1,320 defendants executed were, in fact, innocent.

If 4% of people who got vaccinated died–and there was no credible evidence that inoculation prevented disease– I’d join the anti-vaxxers.

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Death and Taxes

These days, those of us who follow policy debates are suffering from overload: same-sex marriage, immigration policy, foreign policy—not to mention the re-emergence of pocketbook issues like collective bargaining rights—are generating lots of heat, if distressingly little light.

And then, of course, there are the perennial complaints about taxes.

Everyone, it seems, wants government to cost less–until someone suggests cuts to our particular sacred cows. In Washington, we see lawmakers eager to de-fund Planned Parenthood and NPR become livid when someone suggests cutting military spending. Here in Indiana, an eminently reasonable proposal by Governor Daniels and the Chief Justice to incarcerate fewer nonviolent offenders and save the billions of tax dollars that we would otherwise spend building additional prisons has been eviscerated by defenders of “law and order.”

In fact, the criminal justice system offers one of the best opportunities to save significant tax dollars, beginning with abolition of the death penalty.

People have different opinions about the morality of capital punishment, and I leave those arguments to ethicists and theologians. There are, however, some pretty compelling practical and fiscal arguments for abolition.

As a practical matter, years of scholarship have confirmed that capital punishment is not a deterrent. In 2009, states with the death penalty had murder rates of 5.2 per 100,000 residents; in states without, the rate was 3.9—a 35% difference. Police agree. In a recent poll, police chiefs ranked the death penalty last among ways to reduce violent crime; they also considered it the least efficient use of taxpayer money, and complained that it diverted money from more effective crime control measures.

Which brings us to the fiscal issues.

In 2010, Legislative Services analyzed capital punishment costs in Indiana, and determined that the average cost of a capital trial and direct appeal was 449,000–over ten times the 42,658 cost of a life-without-parole case. In California, taxpayers pay 114,000,000 more each year than it would cost to keep those same offenders imprisoned for life. In Kansas, capital cases are 70% more expensive than non-capital cases, even including the costs of lifelong incarceration. In Texas, a death penalty case costs three times what it would cost to imprison someone in a single cell at the highest security level for 40 years.

We could eliminate appeals and execute people immediately upon conviction. That would save money. Unfortunately, such a proposal raises another pesky problem we have with capital punishment—the fact that we convict innocent people. Since 1973, over 130 people have been released from death row because they were found to be innocent. These were not folks freed on a “technicality,” they were people wrongfully convicted.

One of those people will be in Indianapolis on April 14^th. Randy Steidl will speak at the IUPUI Campus Center at 7 p.m. about the 17 years he spent on death row for a crime he didn’t commit. Randy comes from a law-abiding middle-class family; his brother is a retired State Trooper. His story is troubling, to say the least: there was evidence of the sort of police and prosecutorial misconduct that—more often than we might like to think—accompanies the rush to solve high-profile murders.

As Steidl says, “If it happened to me, it can happen to anyone.”

I guess that’s one of those “moral” arguments I said I wasn’t going to make.

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