A Foolish and Barbaric Practice

Seven Reasons for Abolishing the Death Penalty

Posted Mar 25, 2013

Maryland has just become the 18th state to abolish the death penalty, and a bill is under consideration that would make my state of Colorado number 19 (it likely will pass but the governor has indicated he might veto it). As a psychologist who has been involved in a number of capital cases, and gotten to know over 20 condemned or capitally-charged prisoners, I have learned a few things that the average person does not know. When I started consulting in capital cases, I was essentially neutral on the matter of abolition, but as I educated myself about the death penalty I became increasingly convinced that the practice should be abolished and that I should make my feelings public.

 I have identified seven reasons why the death penalty should be abolished in Colorado, and in the 33 other jurisdictions (31 states, the federal government, plus the military) where it is still on the books. Most people on both sides of the debate cite only one or two; the power of considering all of these is that it is difficult to argue for continuing a policy with so many problems.

 Problem 1: Unequal Administration. Retired Supreme Court Justice John Paul Stevens has written that he regrets having voted to reinstate the death penalty (after a ten-year moratorium, from 1967 to 1977), as he has been unable to discern any rhyme or reason as to why some first degree murder defendants are brought up on capital charges and other equally (or more) culpable defendants are not. Often, this argument is framed in terms of discrimination based on economics or race (especially race of victim), but the biggest form of discrimination is geographic. Our system largely leaves it up to the judgment of a prosecutor to decide who should face the death penalty, and this has resulted in tremendous inconsistencies, with death considered warranted by some prosecutors or states, but not others. This is a problem that the US Supreme Court has tried to fix, but it is time to admit that the problem of unequal application defies solution.

 Problem 2: Tremendous Cost. When discussing the death penalty with the person who cuts my hair, she asked “isn’t it true that executing prisoners would save the state the cost of lifetime incarceration?” She was surprised when I responded “no, dozens of studies have found that incarcerating someone for life is much cheaper than executing him.” That is because it typically takes decades (something mandated by the US Supreme Court) for a condemned prisoner’s appeals to run their course, and the cost of that process is astronomical, in most cases, costing the state or county millions of dollars. (A Colorado legal administrator just testified that the cost of the death penalty per prisoner is $400,000 per year). Only a small portion of that comes from the higher cost of death row (single cells, greater staffing), while the biggest portion comes from the federally-mandated court proceedings, where costs of attorneys, investigators and experts on both sides (capital defendants are typically indigent) all come out of the public trough.

 Problem 3: Mistaken Convictions. Since the death penalty was reinstated in 1977, there have been dozens of people who received the death penalty who were subsequently exonerated. This number has gradually increased, most likely because of improvements in DNA technology. England abolished the death penalty for murder in 1965, and for all offenses in 1998, largely because of a controversial (and widely considered improper) execution. (At one time, there were 220 crimes publishable by death in the UK, including “being in the company of Gypsies for one month"). Illinois abolished capital punishment in 2011 mainly because of a rash of wrongful convictions, many obtained through improper interrogation methods and excessive reliance on notoriously unreliable jailhouse snitches. In Colorado, the last official act of outgoing Governor Bill Ritter was to grant a posthumous pardon to Joe Arridy, a young man with an IQ in the 40’s who was executed in 1939 on the basis of the phoniest of false confessions. Given the finality of a death sentence, a wrongful execution can never be rectified.

 Problem 4: Lack of Support for Deterrence. A major rationale for the death penalty is that it is a more powerful deterrent (than lengthy incarceration) against homicide, but many studies have found that the death penalty is no more of a deterrent than is a lengthy prison sentence. Killing is generally not a rational act, and offenders rarely think of consequences for themselves or others (such as their own family members) when they kill. Certainly, that has been true in the capital cases I have consulted on, where killings usually are impulsive acts committed by people who in no way are deterred by possibility of punishment, capital or otherwise. In a survey of chiefs of police, increased use of the death penalty came out last in a list of ways for reducing violence.

 Problem 5: Closure for Families. Many (but far from all) families of homicide victims are in favor of executing the offender, both for revenge reasons but also because they believe it will allow them to achieve closure. In fact, the long drawn-out nature of the legal process prevents them from ever attaining closure. Resolving a case quickly through a life sentence without possibility of parole is the best way to move a victim’s family toward healing and closure. The same is also true of an offender’s family members, most whom are law-abiding citizens whose lives are also forever altered by the actions of their son or sibling.

 Problem 6: Cruelty of Languishing on Death Row. When England had a flourishing death penalty, the operative principle was that staying in a condemned state for more than three months was excessively cruel. In my relatively small forensic practice, I have two cases where a prisoner has been on death row for over three decades, and several others where it has been over two decades. The US Constitution requires us to treat (and even to execute) all prisoners humanely. Being in a condemned state for decades (usually in very isolated conditions, in some places without even TV) is decidedly inhumane. This is reflected in the fact that in some jurisdictions the only people who are executed are those who cannot take it any longer and call off appeals, essentially committing state-assisted suicide. I realize there are some who might argue “well then kill them sooner,” but I think we should feel good about living in a country where the Supreme Court, while never outright outlawing capital punishment, has made it a very difficult penalty to carry out.

 Problem 7: Change in Moral and Religious Climate. The US and China are the only G-8 nations that still execute people. In the Western world, the United States now stands virtually alone. In Europe there is only Belarus, and in the Western hemisphere it is the US, Cuba, Jamaica and a couple of tiny island nations. Even Russia (which still has it on the books) has stopped executing its citizens. The same is true of India and Japan. One must ask the question: “Does the United States, and the state of Colorado, want to identify with enlightened democracies such as England and Canada, or with dictatorships such as China and Iran?” Virtually all religious denominations are publicly opposed to the death penalty, with part of this reflecting the concept of redemption (which is especially important in Christianity). The condemned people I know (most in their 40s and 50s) are not the same people they were in their late teens or early to mid 20’s when (like most offenders) they killed. Even guards, few of whom are bleeding hearts, are profoundly affected when people they have come to know (and in many cases, value) are eventually put to death.

 I live in a state that has always been ambivalent about the death penalty as reflected in the fact that it was abolished in Colorado between 1897 to 1901, there are only three people on our death row (compared to California, which has over 700), and we have not executed anyone in over 15 years. For all seven of the reasons mentioned above, I hope the legislature will pass, and the Governor will sign, the bill that would move Colorado into the growing ranks of enlightened states that have decided to end this foolish and barbaric practice.

             Copyright Stephen Greenspan