Is the Death Penalty Dying?
December 21, 2007
The tide has turned against capital punishment in America. This week, New Jersey became the first state in the modern era to legislatively abolish its death penalty. In October, the New York State Court of Appeals tossed out New York's death penalty, and cleared the state's death row for good. Maryland came close to passing a repeal of the death penalty with the vocal support of its governor. An abolition bill passed Montana's Senate earlier this year. Nebraska, one of the reddest states in the Union, came within one vote of abolishing its death penalty. In the meantime, the protocols of lethal injection are currently under scrutiny by the Supreme Court, leaving the nation's execution chambers frozen. America has not gone this long without a single execution in decades.
But this movement away from capital punishment isn't occurring because the United States is experiencing some sort of moral rebirth. A majority of America still believes that our worst criminals deserve to be put to death, but a substantially larger majority supports a moratorium on executions while the system's flaws are addressed. Americans are worried that our criminal justice system is too dysfunctional to properly carry out death sentences. Our discomfort with executions has less to do with the ethics of crime and punishment, and everything to do with the state of the system that carries out those punishments.
America's skepticism is easy to understand, especially in light of the alarming streak of exonerations that began with the advent of DNA testing decades ago. More than 200 people have since been exonerated by DNA evidence proving them innocent. And at least 126 people have been released from death rows in 25 states.
The stories are shocking: forced false confessions, eyewitness misidentification, incompetent or fraudulent forensic analysis. Plain old inevitable human error. It is clear that if our justice system can go this wrong, we can't allow it to continue to function as is.
As if the possibility of wrongful execution wasn't enough, the death penalty's many other systematic flaws have piled up so high that the nonpartisan American Bar Association called for a moratorium on executions this year. Here's why:
• The death penalty is arbitrary. The vast majority of capital sentences come from a small minority of counties, depending on the nature of individual prosecutors rather than crime rates.
• The death penalty is biased. Almost all of the people who typically receive the death penalty are poor, and many are mentally ill. Crimes of the same magnitude committed by persons with the resources to get a good lawyer typically do not result in death sentences. Crimes in which the victim was Black almost never result in death sentences.
• The death penalty is harmful to family members of victims of crime, who must endure years or even decades of entanglement with the legal system.
• The cost of capital punishment far exceeds prison sentences of life without parole. While no one wants to put a price tag on justice, one must ask whether the billions of dollars spent chasing a handful of executions would be better spent preventing crime and providing help to victims of crime.
Even the deterrence factor has been widely abandoned by death-penalty proponents, and for good reason. This year, when a handful of dubious studies revived the idea that death penalty somehow influences criminal behavior, they were subsequently and roundly debunked.
But even if the body of evidence in favor of abolishing capital punishment is overwhelming, facts alone won't change laws. For years, New Jersey has experienced widespread and robust grassroots pressure for change--and it was merely the most advanced iteration of a process that is happening across the country.
The movement is both local and national. It is comprised of voices from all of the parties involved in the issue. Families of murder victims are testifying that the death penalty exacerbates the trauma of violent crime. Law enforcement officers--from prosecutors to police chiefs to wardens--are testifying from experience that the death penalty does not make them or us safer, and that our energies and resources are better spent elsewhere. The sum of all the movement's parts is an example of American democracy at its finest: local engagement and innovation giving shape to broad-based coalitions that affect change on a state level and ultimately reshape the national discourse.
For a long time, this is an issue that was haunted by inertia--right or wrong, most people assumed the death penalty was here to stay. That has now changed. As the new year begins, states across the country will look toward New Jersey to see a future without capital punishment--and they'll find that the future looks much brighter.
Greg Bloom is the National Constituency Organizer for Equal Justice USA, a national organization that advocates for a halt to executions. He can be reached at gregb[at]Quixote[dot]org.