The Debate: Capital Punishment Should Be Abolished
THE DEBATE: CAPITAL PUNISHMENT SHOULD BE ABOLISHED
FROM TESTIMONY OF VICKI A. SCHIEBER, CHEVY CHASE, MARYLAND, BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES,'' FEBRUARY 1, 2006
IamthemotherofamurdervictimandIserveonthe board of directors of Murder Victims' Families for Human Rights (MVFHR), a national non-profit organization of people who have lost a family member to murder or state execution and who oppose the death penalty in all cases. There are MVFHR members in every state.
Discussions of the death penalty typically focus on the offender, the person convicted of murder. My focus, and the focus of those whom I am representing through this testimony, is on the victims of murder and their surviving families.
Losing a beloved family member to murder is a tragedy of unimaginable proportions. The effects on the family and even on the wider community extend well beyond the initial shock and trauma. The common assumption in this country is that families who have suffered this kind of loss will support the death penalty. That assumption is so widespread and so unquestioned that a prosecutor will say to a grieving family, ''We will seek the death penalty in order to seek justice for your family.'' A lawmaker introduces a bill to expand the application of the death penalty and announces that he is doing this ''to honor victims.'' A politician believes that she must run on a pro-death penalty platform or risk being labeled soft on crime and thus unconcerned about victims.
As a victim's family member who opposes the death penalty, I represent a growing and for the most part under-served segment of the crime victim population. Along with the other members of MVFHR, I have come to believe that the death penalty is not what will help me heal. Responding to one killing with another killing does not honor my daughter, nor does it help create the kind of society I want to live in, where human life and human rights are valued. I know that an execution creates another grieving family, and causing pain to another family does not lessen my own pain. . . .
My husband and I were both raised in homes with a deep-seated religious faith. We were both raised in households where hatred was never condoned and where the ultimate form of hate was thought to be the deliberate taking of another person's life. The death penalty involves the deliberate, premeditated killing of another human being. In carrying forward the principles with which my husband and I were raised, and with which we raised our daughter, we cannot in good conscience support the killing of anyone, even the murderer of our own daughter, if such a person could be imprisoned without parole and thereby no longer a danger to society.
No one should infer from our opposition to the death penalty that we did not want Shannon's murderer caught, prosecuted, and put away for the remainder of his life. We believe he is where he belongs today, as he serves his prison sentence, and we rest assured that he will never again perpetrate his sort of crime on any other young women. But killing this man would not bring our daughter back. And it was very clear to us that killing him would have been partly dependent on our complicity in having it done. Had we bent to this natural inclination, however, it would have put us on essentially the same footing as the murderer himself: willing to take someone else's life to satisfy our own ends. That was a posture we were not willing to assume.
In my work with Murder Victims' Families for Human Rights, I have come to know several survivors of people who have been put to death by execution. Seeing the effects of an execution in the family, particularly the effects on children, raises questions for me about the short-and long-term social costs of the death penalty. What kind of message do we convey to young people when we tell them that killing another human being is wrong but then impose the death penalty on someone with whom they have some direct or indirect relationship? Isn't there the possibility that the imposition of the death penalty sends a conflicted message about our society's respect for life? Isn't it possible that the potentially biased application of the death penalty in certain racial contexts distorts the fundamental principles on which this nation was founded? Isn't it possible that the bitterness that arises out of this causes more social problems than it solves?
I remember when, back in 2001, then Attorney General John Ashcroft decided that family members of the Oklahoma City bombing victims should be allowed to witness the execution of Timothy McVeigh on closed-circuit television. His argument was that the experience would ''meet their need for closure.'' The word closure is invoked so frequently in discussions of victims and the death penalty that victims' family members jokingly refer to it as ''the c word.'' But I can tell you with all seriousness that there is no such thing as closure when a violent crime rips away the life of someone dear to you. As my husband and I wander through the normal things that we all do in our daily lives, we see constant reminders of Shannon and what we have lost. Killing Shannon's murderer would not stop the unfolding of the world around us with its constant reminders of unfulfilled hopes and dreams.
Indeed, linking closure for victims' families with the execution of the offender is problematic for two additional reasons: first, the death penalty is currently applied to only about one percent of convicted murderers in this country. If imposition of that penalty is really necessary for victims' families, then what of the 99% who are not offered it? Second, and even more critical from a policy perspective, a vague focus on executions as the potential source of closure for families too often shifts the focus away from other steps that could be taken to honor victims and to help victims' families in the aftermath of murder.
We have chosen to honor our daughter by setting up several memorials in her name—a scholarship at Duke University, and an endowment fund to replace roofs on inner city homes through the Rebuilding Together program in poor sections of our community, to name two. We also believe that we honor her by working to abolish the death penalty, because, for my husband and for me, working to oppose the death penalty is a way of working to create a world in which life is valued and in which our chief goal is to reduce violence rather than to perpetuate it.
FROM TESTIMONY OF STEPHEN B. BRIGHT, SOUTHERN CENTER FOR HUMAN RIGHTS, ATLANTA, GEORGIA, BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES,'' FEBRUARY 1, 2006
This is a most appropriate time to assess the costs and benefits of the death penalty. Thirty years ago, in 1976, the Supreme Court allowed the resumption of capital punishment after declaring it unconstitutional four years earlier in Furman v. Georgia. Laws passed in response to Furman were supposed to correct the constitutional defects identified in 1972.
However, 30 years of experience has demonstrated that those laws have failed to do so. The death penalty is still arbitrary. It's still discriminatory. It is still imposed almost exclusively upon poor people represented by court-appointed lawyers. In many cases the capabilities of the lawyer have more to do with whether the death penalty is imposed than the crime. The system is still fallible in deciding both guilt and punishment. In addition, the death penalty is costly and is not accomplishing anything. And it is beneath a society that has a reverence for life and recognizes that no human being is beyond redemption.
Many supporters of capital punishment, after years of struggling to make the system work, have had sober second thoughts it. Justice Sandra Day O'Connor, who leaves the Supreme Court after 25 years of distinguished service, has observed that ''serious questions are being raised about whether the death penalty is being fairly administered in this country'' and that ''the system may well be allowing some innocent defendants to be executed.''
Justices Lewis Powell and Harry Blackmun also voted to uphold death sentences as members of the court, but eventually came to the conclusion, as Justice Blackmun put it, that ''the death penalty experiment has failed.''
The Birmingham News announced in November that after years of supporting the death penalty it could no longer do so ''[b]ecause we have come to believe Alabama's capital punishment system is broken. And because, first and foremost, this newspaper's editorial board is committed to a culture of life.'' The editorial is appended to this statement.
The death penalty is not imposed to avenge every murder and—as some contend—to bring ''closure'' to the family of every victim. There were over 20,000 murders in 14 of the last 30 years and 15,000 to 20,000 in the others. During that time, there have been just over 1,000 executions—an average of about 33 a year. Sixteen states carried out 60 executions last year. Twelve states carried out 59 executions in 2004, and 12 states put 65 people to death in 2003.
Moreover, the death penalty is not evenly distributed around the country. Most executions take place in the South, just as they did before Furman. Between 1935 and 1972, the South carried out 1,887 executions; no other region had as many as 500. Since 1976, the Southern states have carried out 822 of 1,000 executions; states in the Midwest have carried out 116; states in the west 64 and the Northeastern states have carried out only four. The federal government, which has had the death penalty since 1988, has executed three people. Only one state, Texas, has executed over 100 people since 1976. It has executed over 350.
Further experimentation with a lethal punishment after centuries of failure has no place in a conservative society that is wary of too much government power and skeptical of government's ability to do things well. We are paying an enormous cost in money and the credibility of the system in order to execute people who committed less than one percent of the murders that occur each year. The death penalty is not imposed for all murders, for most murders, or even for the most heinous murders. It is imposed upon a random handful of people convicted of murder—often because of factors such [as] the political interests and predilections of prosecutors, the quality of the lawyer appointed to defend the accused, and the race of the victim and the defendant. A fairersystemwouldbetohavealotteryofallpeople convicted of murder; draw 60 names and execute them.
Further experimentation might be justified if it served some purpose. But capital punishment is not needed to protect society or to punish offenders. We have not only maximum security prisons, but ''super maximum'' prisons where prisoners are completely isolated from guards and other inmates, as well as society. . . .
Supreme Court Justice Arthur Goldberg said that the deliberate institutionalized taking of human life by the state is the greatest degradation of the human personality imaginable. It is not just degrading to the individual who is tied down and put down. It is degrading to the society that carries it out. It coarsens the society, takes risks with the lives of the poor, and diminishes its respect for life and its belief in the possible redemption of every person. It is a relic of another era. Careful examination will show that the death penalty is not serving any purpose in our society and is not worth the cost.
FROM TESTIMONY OF JEFFREY FAGAN, PROFESSOR OF LAW AND PUBLIC HEALTH, COLUMBIA UNIVERSITY, NEW YORK CITY, NEW YORK, BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES,'' FEBRUARY 1, 2006
Recent studies claiming that executions reduce murders have fueled the revival of deterrence as a rationale to expand the use of capital punishment. Such strong claims are not unusual in either the social or natural sciences, but like nearly all claims of strong causal effects from any social or legal intervention, the claims of a ''new deterrence'' fall apart under close scrutiny. These new studies are fraught with numerous technical and conceptual errors: inappropriate methods of statistical analysis, failures to consider all the relevant factors that drive murder rates, missing data on key variables in key states, the tyranny of a few outlier states and years, weak to nonexistent tests of concurrent effects of incarceration, statistical confounding of murder rates with death sentences, failure to consider the general performance of the criminal justice system, artifactual results from truncated time frames, and the absence of any direct test of deterrence. These studies fail to reach the demanding standards of social science to make such strong claims, standards such as replication, responding to counterfactual claims, and basic comparisons with other causal scenarios. Social scientists have failed to replicate several of these studies, and in some cases have produced contradictory results with the same data, suggesting that the original findings are unstable, unreliable and perhaps inaccurate. This evidence, together with some simple examples and contrasts including the experience in my state of New York, suggest extreme caution before concluding that there is new evidence that the death penalty deters murders.
The costs of capital punishment are extremely high. Even in states where prosecutors infrequently seek the death penalty, costs of obtaining convictions and executions in capital cases range from $2.5 to $5 million per case (in current dollars), compared to less than $1 million for each killer sentenced to life without parole. Local governments bear the burden of these costs, diverting $2 million per capital trial from local services—hospitals and health care, police and public safety, and education— or infrastructure repairs—roads and other capital expenditures—and causing counties to borrow money or raise local taxes. The costs are often transferred to state governments as ''risk pools'' or programs of local assistance to prosecute death penalty cases, diffusing death penalty costs to counties that choose not to use—or have no need for—the death penalty in capital cases.
The high costs of the death penalty, the unreliable evidence of its deterrent effects, and the fact that the states that execute the most people also have the highest error rates, create clear public policy choices for the nation. If a state is going to spend $500 million on law enforcement over the next two decades, is the best use of that money to buy two or three executions or, for example, to fund additional police detectives, prosecutors, and judges to arrest and incarcerate murderers and other criminals who currently escape any punishment because of insufficient law-enforcement resources?
Also, most states rarely use the death penalty, and both death sentences and executions have declined sharply over the past five years, even as murder rates have declined nationally. We cannot expect the rare use of the death penalty to have a deterrent effect on already declining rates of murder. Justice White noted long ago in Furman v. Georgia that when only a tiny proportion of the individuals who commit murder are executed, the penalty is unconstitutionally irrational: a death penalty that is almost never used serves no deterrent function, because no would-be murderer can expect to be executed.
Accordingly, a threshold question for state legislatures across the country is whether their necessary and admirable efforts to avoid error and the horror of the execution of the innocent won't—after many hundreds of millions of dollars of trying—burden the state with a death penalty that will be overturned again because of this additional constitutional problem?
FROM STATEMENT OF SENATOR RUSS FEINGOLD OF WISCONSIN ON INTRODUCTION OF S. 447, THE ''FEDERAL DEATH PENALTY ABOLITION ACT OF 2007,'' ON JANUARY 31, 2007, IN THE U.S. SENATE, WASHINGTON, D.C.
Mr. President, today I am introducing the Federal Death Penalty Abolition Act of 2007. This bill would abolish the death penalty at the Federal level. It would put an immediate halt to executions and forbid the imposition of the death penalty as a sentence for violations of Federal law.
Since 1976, when the death penalty was reinstated by the Supreme Court, there have been 1,060 executions across the country, including three at the Federal level. During that same time period, 123 people on death row have been exonerated and released from death row. These people never should have been convicted in the first place.
Consider those numbers. One thousand and sixty executions, and 123 exonerations in the modern death penalty era. Had those exonerations not taken place, had those 123 people been executed, those executions would have represented an error rate of greater than 10 percent. That is more than an embarrassing statistic; it is a horrifying one, one that should have us all questioning the use of capital punishment in this country. In fact, since 1999 when I first introduced this bill, 46 death row inmates have been exonerated throughout the country.
In the face of these numbers, the national debate on the death penalty has intensified. For the second year in a row, the number of executions, the number of death sentences imposed, and the size of the death row population have decreased as a growing number of voices have joined to express doubt about the use of capital punishment in America. The voices of those questioning the fairness of the death penalty have been heard from college campuses and courtrooms and podiums across the Nation, to the Senate Judiciary Committee hearing room, to the United States Supreme Court. The American public understands that the death penalty raises serious and complex issues. The death penalty can no longer be exploited for political purposes. In fact, for the first time, a May 2006 Gallup Poll reported that more Americans prefer a sentence of life without parole over the death penalty when given a choice. If anything, the political consensus is that it is time for a change. We must not ignore these voices.
In the wake of the Supreme Court's decision in 1976 to allow capital punishment, the Federal Government first resumed death penalty prosecutions after enactment of a 1988 Federal law that provided for the death penalty for murder in the course of a drug-kingpin conspiracy. The Federal death penalty was then expanded significantly in 1994, when the omnibus crime bill expanded its use to a total of some 60 Federal offenses. And despite my best efforts to halt the expansion of the Federal death penalty, more and more provisions seem to be added every year. While the use of and confidence in the death penalty is decreasing overall, the Federal Government has been going in the opposite direction, making more defendants eligible for capital punishment and increasing the size of its Federal death row. Moreover, there are now six individuals on Federal death row from States that do not have capital punishment. The Federal Government is pulling in the wrong direction as the rest of the Nation moves toward a more just system.
. . . Years of study have shown that the death penalty does little to deter crime, and that defendants' likelihood of being sentenced to death depends heavily on illegitimate factors such as whether they are rich or poor. Since reinstatement of the modern death penalty, 80 percent of murder victims in cases where death sentences were handed down were white, even though only 50 percent of murder victims are white. Nationwide, more than half of the death row inmates are African Americans or Hispanic Americans. There is evidence of racial disparities, inadequate counsel, prosecutorial misconduct, and false scientific evidence in death penalty systems across the country.
At least Maryland, Illinois, North Carolina, and California have begun the process of investigating the flaws in their own systems. But there are 36 other States that have death penalty provisions in their laws, 36 other States with systems that are most likely plagued with the same flaws. And these systems come at great additional cost to the taxpayers. For example, a 2005 report found that California's death penalty system costs taxpayers $114 million in additional costs each year. Similar reports detailing the extraordinary financial costs of the death penalty have been generated for States across the Nation.
Moreover, there are growing concerns about the most common method of execution, lethal injection. These concerns are so grave that eight States and the Federal system all halted individual executions in 2006 to work through these problems. And these numbers are growing. Just this last week, executions in North Carolina were halted because of challenges to lethal injection. More and more research is emerging that suggests that lethal injections are unnecessarily painful and cruel, and that this method of capital punishment—however sanitary or humane it may appear—is no less barbaric than the more antiquated methods lethal injection was designed to replace, such as the noose or the firing squad, no less horrific than the electric chair or the gas chamber.
Nothing is more barbaric, of course, than the execution of an innocent person, and it is clearer than ever that the risk is very real. Already, information has surfaced that suggests that two men put to death in the 1990s may have been innocent. This is a chilling prospect, one that illustrates the very grave danger in imposing the death penalty. The loss of just one innocent life through capital punishment should be enough to force all of us to stop and reconsider this penalty.
And while we examine the flaws in our death penalty system, we cannot help but note that our use of the death penalty stands in stark contrast to the majority of nations, which have abolished the death penalty in law or practice. There are now 123 countries that have done so. In 2005, only China, Iran, and Saudi Arabia executed more people than we did. These countries, and others on the list of nations that actively use capital punishment, are countries that we often criticize for human rights abuses. The European Union denies membership in the alliance to those nations that use the death penalty. In fact, it passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and it specifically called on all States within the United States to abolish the death penalty. This is significant because it reflects the unanimous view of a group of nations with which the United States enjoys close relationships and shares common values. We should join with them and with the over 100 other nations that have renounced this practice.
We are a Nation that prides itself on the fundamental principles of justice, liberty, equality and due process. We are a Nation that scrutinizes the human rights records of other nations. Historically, we are one of the first Nations to speak out against torture and killings by foreign governments. We should hold our own system of justice to the highest standard.
As a matter of justice, this is an issue that transcends political allegiances. A range of prominent voices in our country are raising serious questions about the death penalty, and they are not just voices of liberals, or of the faith community. They are the voices of former FBI Director William Sessions, former Justice Sandra Day O'Connor, Reverend Pat Robertson, George Will, former Mississippi warden Donald Cabana, the Republican former Governor of Illinois, George Ryan, and the Democratic former Governor of Maryland, Parris Glendening. The voices of those questioning our application of the death penalty are growing in number, they are growing louder, and they are reflected in some of the decisions of the highest court of the land. In recent years, the Supreme Court has held that the execution of juvenile offenders and the mentally retarded is unconstitutional.
As we begin a new year and a new Congress, I believe the continued use of the death penalty in the United States is beneath us. The death penalty is at odds with our best traditions. It is wrong and it is immoral. The adage ''two wrongs do not make a right,'' applies here in the most fundamental way. Our Nation has long ago done away with other barbaric punishments like whipping and cutting off the ears of criminals. Just [as] we did away with these punishments as contrary to our humanity and ideals, it is time to abolish the death penalty as we seek to spread peace and justice both here and overseas. It is not just a matter of morality. The continued viability of our criminal justice system as a truly just system that deserves the respect of our own people and the world requires that we do so. Our Nation's goal to remain the world's leading defender of freedom, liberty and equality demands that we do so.
FROM TESTIMONY OF HILARY O. SHELTON, DIRECTOR OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, WASHINGTON BUREAU, WASHINGTON, D.C., BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''OVERSIGHT OF THE FEDERAL DEATH PENALTY,'' JUNE 27, 2007
The NAACP remains resolutely opposed to the death penalty. . . .
From the days of slavery, through years of lynchings and Jim Crow laws, and even today capital punishment has always been deeply affected by race. This is true among the states as well as at the federal level. Despite the fact that African Americans make up only 13% of our Nation's population, almost 50% of those who currently sit on the federal death row are African American.
Furthermore, across the Nation about 80% of the victims in the underlying murder in death penalty cases are white, while less than 50% of murder victims overall are white. This statistic implies that white lives are valued more than those of racial or ethnic minorities in our criminal justice system.
Finally, the NAACP is very concerned about the number of people who have been exonerated since being placed on death row. Since 1973, over 120 people have been released from death row with evidence of their innocence. The death penalty is the ultimate punishment, one that is impossible to reverse in light of new evidence.
The American criminal justice system has been historically, and remains today, deeply and disparately impacted by race. It is difficult for African Americans to have confidence in or be willing to work with an institution that is fraught with racism. And the fact that African Americans are so overrepresented on death row is alarming and disturbing, and certainly a critical element that leads to the distrust that exists in the African American community of our Nation's criminal justice system.
It bears repeating that 49% of all the people, or almost half of all those currently sitting on the federal death row, are African American. Perhaps more disturbing is the fact that nobody at the Department of Justice can conclusively say that race is not a factor in determining which defendants are to be tried in federal death penalty cases.
According to the DoJ's own figures, 48% of the defendants in federal cases in which the death penalty was sought between 2001 and 2006 were African Americans.
What we don't know, unfortunately, is whether or not this number is representative of the number of criminal defendants who are accused of crimes in which the death penalty may be sought. And, since there are several layers that must be examined to even begin to assess this number, including whether a crime is tried at the local or federal level, it is not an easy number to attain.
What is clear, though, is that at several different points in the process of determining who is tried in a federal death penalty case and who is not, a judgment is made by human beings in a process in which not everyone has similar views. And in a world in which 98% of the chief district attorneys in death penalty states are white and only 1% are black, it is this differential that gives us the most problem.
In addition to the factor of the race of the defendants, the NAACP is also deeply troubled by the role played in the race of the victim. Although at the federal level the weight of the victim's race appears to have changed over the last few years, at the state level the race of the victim still appears to play a big role. According to the Death Penalty Information Center, 79% of the murder victims in cases resulting in an execution were white, even though nationally only 50% of murder victims overall were white. A recent study in California found that those who killed whites were over 3 times more likely to be sentenced to death than those who killed African Americans and more than 4 times more likely than those who killed Latinos. Another study in North Carolina found that the odds of receiving a death sentence rose by 3.5 times among defendants whose victims were white.
These studies, along with the fluctuations we see in all death penalty jurisdictions including the federal government, speak again to the varying factors involved in determining who is eligible for the death penalty and who is not. The overwhelming evidence that a defendant is more likely to be executed if the victim is white is also incredibly problematic; it sends a message that in our criminal justice system, white lives are more valuable than those of racial or ethnic minorities.
Obviously with race being so problematic and such an overwhelming factor in the application of the death penalty, the NAACP is also concerned that there be no room for error. Yet errors do occur, even today. Nationally, more than 120 people have been exonerated and freed from death row before they could be executed. Given the finality of the death sentence under which these people were living, they may in fact be considered the ''lucky ones.'' Furthermore, considering the disparities in the number of African Americans on death row, it is likely that more African Americans are falsely executed, a fact that once again contributes to the mistrust that is endemic among the African American community of the American criminal justice system.
FROM TESTIMONY OF ANÍBAL ACEVEDO VILÁ , GOVERNOR OF THE COMMONWEALTH OF PUERTO RICO, BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''OVERSIGHT OF THE FEDERAL DEATH PENALTY,'' JUNE 27, 2007
The Commonwealth favors the elimination of death as a form of punishment by the federal government.
At the outset, we would like to express our institutional rejection of the death penalty as a form of punishment for criminal activity. As a democratic and developed society, we should aspire to have laws and a criminal justice system premised on higher principles that demonstrate an absolute respect for human life, even for the life of a murderer. I believe that an overwhelming majority of Americans would strongly disapprove—and would most likely not even consider seriously debating the possibility of—implementing the state-sanctioned torture of a torturer or rape of a rapist as forms of punishment. I see no reason why the moral calculus should vary when considering the state-sanctioned killing of a killer. Taking the life of a murderer is a similarly disproportionate punishment.
In addition, the uniqueness of death as punishment, in that it is irrevocable, should give any government pause. Because no human system can be free of error, that system must provide reasonable reparation for the victims of mistakes. However, because of the irrevocability of death, victims of wrongful executions cannot obtain such reparation. Simply put, once an inmate is executed, nothing can be done to make amends if a mistake has been made.
Moreover, the possibility of mistakes in the application of the death penalty is not theoretical; in fact, the evidence suggests it is not even remote. There is considerable evidence that an alarming number of persons have been incorrectly sentenced to death by various jurisdictions within the United States. For example, a study conducted at the Columbia University School of Law found that the overall national rate of prejudicial error in capital cases was 68%. When the cases were retried, over 82% of the defendants were not sentenced to death and 7% were completely acquitted. See James S. Liebman et al., ''A Broken System: Error Rates in Capital Cases 1973–1995,'' available at www.law.columbia.edu/instructionalservices/liebman/liebman_final.pdf.
DNA testing has also served to exonerate death row inmates. At least fourteen inmates exonerated by DNA testing were at one time sentenced to death or served time on death row. See Innocence Project, Benjamin N. Cardozo School of Law, ''Facts on Post Conviction DNA Exonerations.'' Here, too, the justice system had concluded that these defendants were guilty and deserving of the death penalty. DNA testing became available only in the early 1990s, due to advancements in science. If this testing had not been discovered until ten years later, many of these inmates would have been executed. And if DNA testing had been applied to earlier cases where inmates were executed in the 1970s and 1980s, the odds are high that it would have proven that some of them were innocent as well.
In our view, whatever deterrent effect imposition of the death penalty might have is outweighed by moral considerations, the risk of wrongful executions and inequitable application of the penalty, and the additional cost involved. Moreover, the fact is that the value of the death penalty in decreasing criminal activity is highly questionable. In fact, some criminologists, such as William Bowers of Northeastern University, maintain that the death penalty has the opposite effect: that is, society is brutalized by the use of the death penalty, and this increases the likelihood of more murders. States within the union that do not employ the death penalty generally have lower murder rates than states that do. The same is true when the United States is compared to countries similar to it. The United States, with the death penalty, has a higher murder rate than Canada and the various European countries of Europe that have outlawed the death penalty. In our experience, the death penalty, in itself, is probably not an effective deterrent because most people who commit crimes (including those punishable by death) simply do not expect to get caught. The most effective deterrent, then, is to increase the perceived likelihood of being caught by increasing the government's effectiveness in apprehending and prosecuting criminals.
Finally, we have to consider that capital cases are notoriously protracted and expensive, and they constitute a significant drain on the resources of a prosecutor's office. At the trial level, death penalty cases are estimated to generate roughly $470,000 in additional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty, as well as added costs of $47,000 to $70,000 for the courts. See http://www.deathpenaltyinfo.org; see also Katherine Baicker, National Bureau of Economic Research, ''The Budgetary Repercussions of Capital Convictions,'' available at www.nber.org/papers/w8382. Elimination of this type of penalty would liberate a good part of our limited law-enforcement resources which could then be used to assure some form of punishment for more criminals who might otherwise escape justice altogether.
For all these reasons, I believe it is time to end capital punishment as part of the federal criminal justice system. Given the fact that the death penalty constitutes such a moral and economic burden on our legal system, I believe that we should all feel compelled to eliminate it.
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