death penalty buzz and judicature and march-april 2006

Though the death penalty is not on everyone's mind and lips these days, there are unmistakable signs that it is returning to the public consciousness, almost 30 years after the renewed exections (after a nine-year hiatus) began again in earnest in the United States. In the last five years a number of high profile events or incidents, including Governor George Ryan's (R-ILL) putting on hold all death sentences in Illinois, the successful work of the innocence project, which discovered through new DNA methods of testing that some men on Death Row were actually innocent of the crime for which they were convicted, and uncertainties raised by Supreme Court Justices, have brought the issue back to us. Now, in the March-April 2006 issue of Judicature, the official literary organ of the American Judicature Society (which exists to promote the effectiveness administration of justice at all levels), we have about fifteen short articles on the effects of capital punishment on the administration of justice in this country. As might be expected, the articles cover a large range of topics, from the perspective of a trial prosecutor of capital murders (Bill Hawkins) to the toll that capital punishment exacts on the judiciary (Michael Hintze) to the way that jurors actually deliberate when confronted with a death penalty case (Michael E. Antonio). Regardless of which individual piece or pieces I find most compelling or suggestive, the appearance of this Judicature shows that the future of the death penalty debate in America is mainly a process of trying to discover the "winning" argument and language to capture the hearts and minds of voters.

The Historical Nature of Argument

Let me illustrate what I mean by this rather cryptic subheading by giving an example. In the 1960s there was a groundswell of opposition to the death penalty in our society. Some of it was simply a moral repulsion to putting someone to death; other opposition came from historically oppressed groups who bemoaned the disproportionate effect of the penalty on their race or group. But, when all the arguments were "in" before the US Supreme Court in 1972, the arguments that seemed to carry the most weight among the majority were the "freakishness" or "unpredictability" in application of the penalty and the disproportionate effect of the penalty. That is, the Justices found convincing the argument that there really was little rhyme nor reason in who, among capital murderers, received the death penalty. This offended the Justices' sense of justice, and so they sent the issue back to the states, where pro-death penalty forces then put together statutory proposals that were supposed to take the "freakishness" out of the imposition of the penalty (primarily through a bifurcated trial process).

After the penalty was reinstated in 1976 (i.e., the Supreme Court, found three state statutory schemes constitutional), a new movement was born in American life: the victims' rights movement. Originating in the late 1970s and early 1980s, this movement was driven by the philosophy that victims and their kin ought to have a major say in the workings of capital cases, and that the philosophy of retribution--an eye for an eye, so to speak--is a perfectly good and respectable philosophy to underpin the death penalty. In other words, Americans found convincing the argument in the 1980s that we shouldn't "coddle" criminals; that retribution in addition to rehabilitation was a valid penological goal; that the families of victims had an important role to play in the sentencing phase of trials (to give so-called aggravating evidence testimony).

But now we are fifteen or so years after the victims' rights movement really worked up a head of steam. It still is a strong force in our society and stood behind state efforts in the 1980s and 1990s to build more prison space in America than in any decades of our history. Yet, victims' rights advocates are not as eloquently vocal as they were even a decade ago, and the major reason is that people are beginning to wonder if all this emphasis on "getting tough on crime" hasn't about played itself out. But where we should go from here is still up in the air. Enter new arguments.

Convincing New Arguments?

Thus, we really are in a "new day" for the American death penalty. And the big question for us today is which argument/s is/are the American public going to find most compelling as abolition efforts gain steam in several states over the next decade. Let me list about five arguments that abolitionists are still trying out on the public; the next essay will focus on what I consider to be the issue that will be most convincing.

1. Argument # 1. Actual Innocence Argues for Abolition or, at least, Moratorium. This has a superficial appeal to it, because no one supports putting to death innocent people. I think, however, that the incidence of actual innocent among death penalty people will be considered by the electorate to be so rare that it won't measure highly on most people's radar screen.

2. Argument # 2. Ineffective Assistance of Death Penalty Counsel. This is what seemed to bother Justices O'Connor and Ginsburg. I would hasten to add that it is a real problem, with some states providing less money for death penalty defense than others. But I think this is an issue that could be "solved" by legislation, through a model act that then is passed in the various states.

3. Argument # 3. Alternative Laws that Do What Society Really Needs. Now we are getting warmer. When most states implemented their death penalty statutes (and 38 have them now), there were only two possible penalties for capital or first-degree or aggravated murder (different terms in different states): life imprisonment or death. The former usually meant a life with the possibility of parole within 20 or so years. But now we have a third penalty--life imprisonment without the possibility of parole (LWOP), which really has been effective in all states (as far as I know) in making sure that aggravated murderers are not allowed back on the streets. If people ever conclude that what we really need is permanent protection from these people, then an argument can be made that LWOP is a more appropriate punishment.

4. Argument # 4. Death Penalty Costs. Getting warmer still. I have shown in these essays that the cost to put a person to death in Oregon exceeds that of the cost to keep a person in prison for life. If this argument gets a fair hearing, and I hope it does, it will take the death penalty debate out of the moral realm and into the realm of public policy and finance. That is, do we have enough money in this state to spend it on endless appeals for convicted aggravated murderers? Can't we use our money in a better place, especially when we have another penalty (LWOP) that will keep us safe?

5. Argument # 5. The Death Penalty is Still Disproportionately Administered. Bingo. I think this will be an argument that has a lot of merit to it in the future. If it can convincingly be shown that people who do lesser crimes get the greater penalty (death), then I believe that people will conclude that the penalty is unfairly applied. If they conclude this, the other arguments about its being just a "poor man's penalty" or its falling disproportionately on racial minorites will strengthen the basic point.

The next essay shows how to make this kind of legal argument.

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