No Second Chances

The use of capital punishment, or the death penalty as many commonly refer to it, has been in the news over the last few weeks.  Much of the discussion revolves around the punishment phase of the trial of Dzhokhar Tsarnaev, better known as the Boston Marathon Bomber.  The guilty verdict delivered last month leaves the jurors with a choice between life in prison without parole or the death penalty.  Several families of the victims have argued that he should get life without parole rather than the death penalty. The judgement may be announced any day.

While the Tsarnaev trial has captured the majority of the headlines concerning the death penalty, another court case could have a larger impact on capital punishment in the United States.  On 29 April this year, the Supreme Court heard arguments on Glossip v Gross which has to do with whether certain drugs, specifically in this case the use of midazolam as part of a drug “cocktail” in lethal injections, constitutes cruel and unusual punishment contrary to the Eighth Amendment of our Constitution. While I am not an attorney, stick with me for a minute while I try to explain why this is an important case.

In previous cases, the Supreme Court allowed the use of a drug cocktail in administering capital punishment via lethal injection.  However, a few years ago many drug companies began to refuse to sell the drugs for use in capital punishment in the United States.  As the supplies dwindled, states began to use other combinations of drugs which resulted in botched executions in Ohio, Arizona and Oklahoma where the prisoners died agonizing deaths, sometimes taking up to two hours to die.  It is a botched execution in Oklahoma that led to the Supreme Court case.  The previous, and Supreme Court approved, cocktail used in lethal injections included a barbiturate that sedated the prisoner while two other drugs paralyzed  them and caused the heart to stop.  The current cocktail apparently is ineffective in sedating the prisoner and thus the pain induced by the other drugs is acutely felt.   Court watchers believe that the nine justices are split on the issue and that Justice Kennedy will be the swing vote in what is likely to be a 5-4 decision.

To me, there is a much bigger question, and that is whether or not the United States (for federal cases) or the individual states should carry the death penalty on their statutes.  18 states and the District of Columbia have no death penalty.  Two of those, New Mexico and Connecticut, have abolished the death penalty but did not make it retroactive to those already on death row.  Michigan was the first state to do away with it in 1846.  (There are two types of non-death penalty policies. Abolitionist is as it says — no death penalty for any crime.  Retentionist is keeping the death penalty for certain crimes, but as a matter of policy it is not used, but the policy could be changed in the future.)  The United States is one of the few nations — especially in the western world — that still carries out capital punishment.  For example, Article 2 of the European Union charter prohibits it.

There was a period in the United States where capital punishment was ruled unconstitutional. In the Supreme Court ruling in Furman v Georgia (1972) the death penalty was considered cruel and unusual because as it was then applied, the use of the death penalty was not consistent and was “wantonly and freakishly” applied.  The states quickly rewrote their laws regarding capital punishment and in Gregg v Georgia (1976) the new laws were deemed constitutional because they used objective criteria with limited discretion in their application and they were all automatically subject to appellate review. Additionally, the laws allowed for taking into account the record and character of the accused. Subsequent rulings have disallowed the death penalty in cases involving individuals with an intellectual disability or that are under 18 years of age at the time of the crime.

So, what impact will Glossip v Gross have?  Hard to say, of course, until a decision one way or another is handed down. From their comments, Justices Alito and Scalia believe that abolitionists are waging a “guerrilla war” against the use of the death penalty by making the drugs unavailable. Justices Sotomayor and Kagan from their comments seem to believe that the death penalty itself, not just the method used, is unconstitutional.  In June we should hear the result and whether the court rules on the use of the death penalty in general, or rules only in a narrow sense about the constitutionality of the current lethal injection protocol.

In anticipation of a Supreme Court ruling that the new methods of lethal injection are cruel and unusual, several state legislatures have begun altering their methods of execution.  In all 34 states that still have a death penalty (and the feds), lethal injection is the preferred method — indeed in some states it is the only method allowed by law.  That is changing. Some examples include Oklahoma and Wyoming where nitrogen gas will be used, Tennessee will use the electric chair, and Utah will use a firing squad.  Other states are considering laws where the drugs used for lethal injections will be a “state secret” that will not be revealed to the public (thus, I suppose, hoping that if people don’t know about it they won’t protest).

What is troubling to me is that these debates center only on what method of execution should be used rather than whether we should still be executing prisoners.  If the debate is only about the method of execution, then they should all bring back the guillotine.  Fast, painless, and permanent. Indeed, the term capital punishment comes from the Latin “capitalis” or “regarding the head” by which the ancient Romans meant beheading.  The French introduced the guillotine to be more “humane.” What is there left to debate?

One thing is for sure, capital punishment is irreversible.  Once you are dead, you are going to stay dead. This is particularly troubling to me when we increasingly see people being released from prison, and many from death row, that are found to be innocent of the accused crime.  The instances of this happening have increased dramatically with improvements in forensic science and especially with the use of DNA evidence.  Too many cases rely on the testimony of a witness that later recants their testimony, reveals that they were induced to testify or made it up to protect someone else. Others have been released because the methods used in a crime lab (such as the recent revelations about the FBI) were not as thorough or scientific as once believed.  Thirty years in prison is a long time for a crime not committed.  To be sent to eternity is a really long time for a crime not committed.  “Sorry” or “oops” is not acceptable.

That is not to say that we coddle criminals.  I avow that life in prison without parole is the right sentence for heinous crimes. That person will never walk the streets again.  Indeed, the families of several of Tsarnaev’s victims have asked for him to be sentenced to life without parole rather than killed.

There are other cogent arguments against the death penalty, in addition to the chance of making a deadly mistake.  In the Tsarnaev case for instance, there is no doubt he perpetrated the crime.  He admits it.  That does not necessarily make the use of capital punishment the right one for him.  In other situations, however, the legal argument for irrefutable evidence is, as we know, flawed as shown in so many recent cases.

There is also a moral argument — specifically that our government should not be in the business of executing its citizens.  It isn’t who we are as a nation.  Arguably, it is the grossest of violations of the human rights of citizens when a government kills its people.

There is no deterrent value in having a death penalty.  No reputable study shows any correlation between having a death penalty and the frequency of capital crimes.  Indeed, in recent years the anecdotal evidence is that as the use of capital punishment declined, so has the number of murders.

There are religious arguments against the death penalty.  Capital punishment is contrary to the teachings of many faiths around the world.  This is especially true if capital punishment is used as vengeance or retribution.

There are no reasonable financial arguments for capital punishment as opposed to life without parole. As explained by the Death Penalty Information Center (www.deathpenaltyinfo.org), many states and independent groups have done studies comparing the cost of the two, and in every case the costs associated with capital punishment exceed those for life in prison.  Using Maryland as an example (which has now abolished the death penalty), the study looked at cases from 1978 to 1992 and found that the cost for the legal process for imposing capital punishment was $3 million to $1.1 million for life without parole.

To be fair, it is easier for me to say what should or should not happen in capital cases because I have been fortunate enough to never have a family member or friend fall victim to such a crime. Everything is easier in the abstract.  However, I also note that increasing numbers of victims’ families — not just in the Tsarnaev case — are asking for life without parole rather than the death penalty.

To me, there is no argument.  We should do away with capital punishment.  In truth I do not think that will happen in the current case before the Supreme Court.  Perhaps it will at least spur more people to think more about whether we should continue to impose capital punishment and less about whether one way or another is “better” or “cruel and unusual.”  If we as a society get it wrong, there is no second chance to get it right.