The Death Penalty in America--Oregon (I) in 2007

I had the honor last Friday of addressing a group of death penalty attorneys on current and historical issues of the death penalty, especially in Oregon. The invitation came because of my 2001 book A Tortured History: The Story of Capital Punishment in Oregon and its generally favorable reviews. Rather than just zeroing in on Oregon, however, I used the occasion to speak about what I see happening "out there" or what is "in the air" in our culture about the death penalty these days. Here are a few points I made.

Overall Point--The Tide is Turning

The high-water mark for death penalty proponents came in 1994, when about 80% of the American people said they favored the death penalty for certain murders. Even though that number still hovers around 60%, support for the death penalty wanes rapidly when people are given other alternatives to consider (like life imprisonment without the possibility of parole). One of the more recent interesting documents which reflects the growing "abolition" movement is the January 4, 2007 report from the New Jersey Death Penalty Study Commission. The major recommendation of this bi-partisan body was:

"The Commission recommends that the death penalty in New Jersey be abolished and replaced with life imprisonment without the possibility of parole, to be served in a maximum security facility."

The purpose of these two essays is to describe why I believe the tide is turning in public opinion with respect to the death penalty in America. I point to five major factors.

I. Factor One--Work of the Innocence Project

The Innocence Project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice. In its 15-year history, the IP has contributed to exonerating 207 wrongfully convicted and incarcerated people. The IP didn't just develop "out of thin air." Rather it arose in response to studies in the early 1990s that showed that as many as 5% of the criminal case verdicts in the American justice system might result in convictions of innocent people. As with most movements, it has taken several years for the work of the IP to "catch on." Even though Barry Scheck, the co-founder, was one of OJ Simpson's attorneys, little was made of his IP connections in the Simpson case in the mid-1990s. But as convictions keep getting overturned, it is gradually dawning on people that there is error in the American system of justice, and that the risk of error ought to make us less hesitant about subjecting someone to the ultimate penalty--death. The possibility of innocence is, I think, one factor leading people to reassess the death penalty. Now we know it isn't just a "theoretical" possibility any longer.

I think, however, that this argument doesn't work as strongly in the capital punishment arena as some of the others.

II. Factor Two--Re-evaluation of Lethal Injection

Almost all the states that have capital punishment (37/38 now, with New York's law, however, being declared unconstitutional in 2004 and New Jersey's recommendation for abolition--mentioned above) have lethal injection as the predominant method for execution. In some states one can choose other methods--such as the electric chair, but most defendants are only facing lethal injection. The process of lethal injection, which consists of injecting three chemicals into the body, is described in detail here. Suffice it to say that first the inmate is injected with sodium thiopental to put him to sleep; then follows pancuronium bromide to paralyze the entire muscle system. Finally, potassium chloride is injected to stop the heart's beating. Lethal injection, which has been practiced in the US since 1982, was introduced to make the death penalty more "humane"--i.e., to eliminate the potential cruelty of electric chairs that malfunction.

But the irony of advanced technology is that it often is subject to the same arguments against it that were directed at the earlier technology. Specifically, objections began to be raised in the early 1990s about the "humanity" of lethal injection. Some defendants seemingly couldn't be injected (hard to find the veins); some had drug-induced seizures. But the argument that led to 12 states putting the death penalty on hold last year was that the injection of the second drug, to paralyze the muscles, may not have eliminated a person's ability to feel pain. He would, however, not be able to express the agony he was feeling. Whenever you use the word "agony," you are implicating the 8th Amendment prohibition against cruel and unusual punishment. Because there was insufficient evidence in a number of states that those administering the lethal drugs had been properly trained in its use, or that procedures for executions were haphazard, judges in 12 states put the death penalty on hold in 2006.

That is, the challenges to lethal injection resulted in general not in the abolition of the penalty but in the desire to explore avenues for making this punishment more "humane." A few of the states suspending the death penalty in 2006 have reinstated it in 2007, but the flap over lethal injection has caused the "system" to slow down even more. For example, 2006 saw the smallest number of state-sponsored executions (53) in a decade. We are on pace to exceed that number slightly in 2007.

While Factor # 1 seems to have more traction in the "public out there," Factor # 2 has more weight in legal proceedings. I will discuss the other three factors in the next essay.

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