“An eye for an eye.” This is the law of retaliation dating back thousands of years to Hammurabi’s Code, under which the crime you inflict onto others will be requited onto you. Modern American culture tends to position itself as “advanced” in every sense of the word — technologically, culturally, economically, and so on. The fallacies of the American superiority complex are myriad, but the death penalty is one obvious contradiction of our self-conception that we are a truly evolved civilization with “liberty and justice for all.”
Recently, I read the autobiography of Anthony Ray Hinton, The Sun Does Shine: How I Found Life and Freedom on Death Row. Ray is an innocent man who spent 30 years of his life on death row, and his story is harrowing. Above all, I was struck by the compassion and hope touted by someone who had suffered such injustice and inhumanity; his book is a clarion call for criminal justice reform and an end to the death penalty. Reading this, and following the work of his attorney, civil rights activist Bryan Stevenson, left me reconsidering my own preconceptions about the death penalty. American support for capital punishment is around 55% according to a 2017 Gallup poll, and that’s the lowest it’s been in decades. For many Americans, the typical narrative around the death penalty is that it is reserved for “evil” people who committed wrongdoings and are getting what they deserve; this line of thinking is overly-simplistic, apathetic and shortsighted. We can and must do better as a nation.
Simply put, the death penalty is barbaric, it must be abolished, and I’ve narrowed this down to six main reasons why:
1. A staggering number of innocent people have been wrongfully sentenced to die. The rate of error for capital punishment in the United States is abysmal; for every 9 people executed in the USA, 1 innocent person has been exonerated. To put this in other terms, since 1973, 159 people have been released from death row after evidence of their innocence was uncovered. That is 159 lives that would’ve otherwise been ended by the state. For a practice that is presumed to increase public safety, that is a horrifying error margin. The blood of innocent people is on the hands of the American public for these wrongful convictions and executions.
There are undoubtedly countless other innocent lives that have been lost due to the bureaucracy and deficiency of the United States legal system (which is further discussed below), and there are people like Anthony Ray Hinton, who was framed for being poor and black, and who spent three decades of his life smelling the burning flesh and hearing the deafening cries of his dying friends only feet from his torturous cell. Incidentally, the state of Alabama refused compensation for the three decades of his life that were stolen from him.
2. Many of those sentenced to death are suffering from mental illness. An estimated 20% of people on death row have severe mental illness. A larger number still (about half) of the total prison population in general have recorded mental health issues of varying levels of severity. There are ten times more people with serious mental illnesses being warehoused in prisons and jails than there are in state hospitals and psychiatric institutions across the country. Sentencing people with mental illness to death is not just grossly unethical, but it’s also unconstitutional.
The United States Supreme Court ruled in Ford v. Wainwright that the Eighth Amendment (which outlaws cruel and unusual punishment) “prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” However, they failed to clarify what qualifies as mental illness — a standard which remains problematically nebulous. Atkins v. Virginia in 2002 held that executing people with intellectual disability was an unfair punishment that contradicted the deterrent purposes of the death penalty, as a result of their “diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.”
It was legal to execute juveniles under the age of 18 until 2005, in the ruling of Roper v. Simmons. The human brain is not even fully developed until the age of 25, but nonetheless the United States had up to that point been doling out capital punishment to children. Eventually this practice was struck down, with the Court also citing the insufficient deterrent value of the punishment given “[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.”
3. It’s racist. So much so, in fact, that it can be likened to a modern-day lynch mob. Like many elements of the criminal justice system in America, capital punishment displays a clear bias against black people. Black people account for about 13% of the US population, but they comprise 42% of the 2,905 people currently under a death sentence (13% are Hispanic and 42% are white). Researchers have found clear patterns of discrimination in death penalty application across virtually every state that uses capital punishment. For instance, according to the Equal Justice Initiative (EJI), “each year in Alabama, nearly 65% of all murders involve black victims, yet 73% of the people currently awaiting execution in Alabama were convicted of crimes in which the victims were white. Fewer than 5% of all murders in Alabama involve black defendants and white victims, but over 52% of black death row prisoners have been sentenced for killing someone white.”
Furthermore, the chief prosecutors are overwhelmingly white in death penalty states, with only about 1% representation of blacks. Similarly, judges, defense attorneys and juries skew predominantly white. Again, using the example of Alabama (which has the highest per capita death penalty rate in the US), none of its 19 appellate court judges, and only 2 out of 42 elected District Attorneys are black. Practices like racially biased peremptory strike in jury selection also remain common. In fact, more than 23 capital cases were overturned in Alabama after it was found that prosecutors illegally excluded black people from serving on juries. If this sounds eerily familiar, it’s because it bears a disturbing resemblance to Jim Crow-era practices of all-white juries condemning black men to death, or lynch mobs that did the same thing without the pretense of a rigged trial. These statistics should make every American question the notion that “we’ve come so far” with regards to civil rights (see also: mass incarceration).
Legal representation is the greatest determinant of how a defendant will fare in capital punishment cases, and poverty is an enormous barrier to gaining adequate defense; the racial wealth gap is alarmingly high across America, but particularly so in places like the South where capital punishment abounds. More on that in #4.
4. The death penalty is a punishment for the poor. This is unfortunately not an exaggeration; according to EJI, 95% of prisoners on death row are poor. As Bryan Stevenson phrases it, “Capital punishment means them without the capital get the punishment.” There are several reasons for this. One, as mentioned above, is that legal representation is instrumental in deciding the fate of defendants in capital punishment cases. Since most people in these types of cases can’t afford to hire an attorney, the court appoints public defenders who are frequently overworked, underpaid and/or inexperienced. There are stories of lawyers in capital trials who have “slept through parts of trial, showed up in court intoxicated, and failed to do any work at all in preparation for the sentencing phase.” For context, the compensation for out-of-court preparation is capped at $1,000; Alabama is the only state in the country without a state-funded program providing legal assistance to death row inmates, so there’s no recourse for prisoners whose underpaid lawyers are unable or unwilling to do sufficient work for the cases that could literally end their lives.
It’s important to note the intersection between the abovementioned bias against black people in the criminal justice system and the poverty statistics on death row. According to the Institute for Policy Studies, a recent report showed that between 1983 and 2013, the wealth of the median black household in America declined 75 percent (from $6,800 to $1,700), and the median Latino household declined 50 percent (from $4,000 to $2,000). At the same time, wealth for the median white household increased 14 percent from $102,000 to $116,800. What these numbers reveal is that if you are black (or Latino), you are highly unlikely to have the funds to be able to hire an attorney for your criminal defense. This compounds with the increased likelihood that you’ll receive the death penalty because you’re non-white, perpetuating a violent cycle of discrimination based on race and class. Wealthy people tend to fare better through every layer of the criminal justice system in the US, and capital punishment is no exception.
5. It is not effective as a crime prevention measure. Theoretically, the criminal justice system should maintain law and order — that is, preserve public safety and preempt crimes through appropriate deterrents of punishment. That is not what the death penalty achieves. Since Canada ended capital punishment, their murder rate has dropped by 44%. Similarly, the South has America’s highest murder rate, despite overseeing 81% of total executions. By contrast, the Northeast has the lowest murder rate in the nation, and they carry out less than 1% of all executions.
More than that, we should question whether this is an ethical punishment, which will be explored in #6. As Bryan Stevenson noted, “Simply punishing the broken — walking away from them or hiding them from sight — only ensures that they remain broken and we do, too. There is no wholeness outside of our reciprocal humanity.”
6. Capital punishment is barbaric: It is cruel and unusual punishment, the USA is one of the only industrialized countries that still uses it, and it’s punitive to the point of dehumanization. Let’s dissect this piece-by-piece:
A) The death penalty is cruel and unusual punishment (e.g. it qualifies as human torture). We don’t dispense rape as a punishment for rapists, so why should murder be an acceptable punishment for murderers? The typical perception of criminal justice in America is that “you did the crime, you do the time,” but that is not the case for capital punishment. Rather than focus on reforming convicted felons, the death penalty seizes life altogether, curbing any potential for reform or meaningful punishment. American tax dollars are funding state-sanctioned murders, and we should question why that is considered appropriate on every level. 1465 men, women, children, and mentally ill people have been murdered by States and the federal government since the reinstatement of the death penalty in 1976 — they were shot, hanged, asphyxiated, lethally injected, and electrocuted.
Traditional lethal injection drugs like pentobarbital are declining in use as manufacturers increasingly refuse to sell them for executions. States have responded by engaging in illegal drug imports and sales, experimenting with never-before-tried drugs in untested quantities from largely unregulated pharmacies (including, most recently in Nebraska, administering fentanyl — contributing taxpayers funds to the market for the lethal drug at the heart of the opioid epidemic. It took the man 23 painstaking minutes to die). Worse yet, many states have passed or tried to pass secrecy laws to avoid disclosing anything about the drugs or execution protocols to the public, lawyers, judges or media.
These secret protocols resulted in botched executions of three men within the first seven months of 2014 alone. “On January 16, Dennis McGuire struggled, made guttural noises, gasped for air and choked for about 10 minutes before being declared dead after Ohio subjected him to a never-before-used two-drug execution method. Oklahoma botched the April 29 execution of Clayton Lockett, who grimaced and writhed on the gurney, clenching his jaw and appearing to be in pain, until officials closed the curtain, called off the execution, and then declared Mr. Lockett dead of an apparent heart attack. Arizona’s execution of Joseph Wood in July using a secret experimental drug protocol took more than two hours, during which witnesses reported that he gasped and snorted more than 600 times.” What kind of society has so little regard for human dignity that we allow this kind of suffering to be inflicted to our own people on our own dime? How does this not undermine the law around cruel and unusual punishment? How does this not encompass human torture and why don’t we broadly take issue with that?
B) No other western countries have the death penalty. Two-thirds of countries in the world have either formally abolished the death penalty or have ceased to use it. In 2016 alone, the United States executed the sixth-highest number of people in the world; this was exceeded only by China, Iran, Saudi Arabia, Iraq and Pakistan. Japan and Taiwan are the only other fully developed countries that still engage in the practice of capital punishment. As Bryan Stevenson says, “The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.” If all other countries that hold similar cultural, economic and political values to our own have eschewed this practice, why would we still hold on to it? Death by stoning is strongly evocative in Western culture as a savage and antiquated practice (one small part of how the West dehumanizes and paradoxically justifies its violent interference into the “uncivilized” practices of places like Iraq); knowing that we are also complicit in carrying out gruesome murders (see point A), what is the difference?
C) This punishment is unreasonably punitive, and it reflects a cultural obsession with unattainable perfectionism and severe punishment. There may be an official separation of church and state, but a plethora of American culture and politics has been informed by Christian values. The great irony is that Jesus Christ embodied forgiveness perhaps beyond all else. Even the Pope declared the death penalty unacceptable in all cases. The American metanarrative is one of resilience — “pick yourself up by your bootstraps” — but for all the cloying entrepreneur dialogues about the merits of failure, we are a widely unforgiving society. This manifests in disenfranchisement laws for convicted criminals, disqualification from food stamps and public housing assistance for people who have been convicted for possession of marijuana and other drugs, marginalization of homeless people, and much more.
The “tough on crime” doctrine has been embraced on a vast and bipartisan scale. Bill Clinton personally oversaw the execution of Ricky Ray Rector on the campaign trail in 1992 — an inmate whose mental illness was so severe, that in his final meal, he opted to save his dessert for later. This was perceived across the political spectrum as a courageous political move within a culture that was (and remains) obsessively punitive when it comes to criminal justice.
My favorite quote from Bryan Stevenson professes that “each of us is more than the worst thing we’ve ever done.” There are so many reasons why people make mistakes or misbehave in one way or another, and it’s often arbitrary and/or unjust how consequences are doled out for those mistakes. This does not justify or trivialize those mistakes in any way — particularly when they have caused harm to other people. But it’s important to consider context when we are contemplating crime and punishment. “The Cycle of Violence,” published by the American Psychological Association, examined the life histories of 43 men on death row. They found that all of them reported being neglected as children. 94% had been physically abused, 59% sexually abused, and 83% witnessed violence throughout their adolescence.
Another study from The Permanente Journal in 2013, “Adverse Childhood Experiences and Adult Criminality” surveyed 151 death row inmates and, comparing their answers with a “normative sample” of the population, discovered that the inmates reported nearly four times as many adverse childhood events than the control group. This is echoed in the writing of Anthony Ray Hinton, who described the majority of his fellow inmates as experiencing incomprehensible physical, sexual and emotional abuse throughout their childhoods, and having no loved ones on the outside (many were also passed through the foster system). Again, this does not justify the crimes they committed, but at what point do we break these cycles of violence and focus instead on mercy, healing and restorative justice?
It is 2018, but the death penalty is a practice that is keeping us in the dark ages. The Emma Lazarus poem that appears on the Statue of Liberty — “Give me your tired, your poor…” belies the practices and beliefs of a society that literally kills its own people. There are better avenues towards justice. Anthony Ray Hinton was able to instill kindness and love in a death row inmate who became one of his close friends. This man, who had known nothing but hate his whole life, had committed the last lynching of a black person (a young boy) in America in 1981 as part of the Klan. If Anthony Ray Hinton can find light and redemption in the people who have committed the ugliest acts of hate, what is preventing the rest of us from looking towards transformation, dignity and restoration rather than more hate?
We have the power to change these practices, but it starts from within. We must individually and collectively examine our own capacities for compassion and clemency and do the work to expand those. America can be a better, more just and safer place if we do the work to make it so.
What can you do?
· Follow the National Coalition to Abolish the Death Penalty (NCADP) and sign their petition
· Make a donation to the Equal Justice Initiative, which provides legal representation to poor people on death row
· Write your legislators and urge them to support Prison Sentencing Reform
· Get educated! Build knowledge and compassion by checking out the following books:
o The Sun Does Shine: How I Found Life and Freedom on Death Row by Anthony Ray Hinton
o Just Mercy: A Story of Justice and Redemption by Bryan Stevenson
o The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander
o This article from the Texas Observer about childhood trauma and death row inmates
o If you live in Florida, (or know someone who lives in Florida, encourage them to) vote yes on the Florida Amendment 4, the Voting Rights Restoration for Felons Initiative