Time to Abolish the Death Penalty

 

The decision of the Trump Administration to resume execution of those convicted under federal law of capital crimes has intensified the public debate about the death penalty as a legitimate form of punishment.  So far in the six months since July when the first executions were carried out, nine men have been killed by the US government. Two other men and one woman have been scheduled to die between now and January 20 when Joe Biden become president. 

In the United States the public attitude generally has been in favor of capital punishment. It has been as high as 80 percent in favor (1994). This year according to Gallup 54 percent of Americans support the death penalty. 

The broad backing for capital punishment should not be surprising. Individuals charged with a capital crime are usually not particularly attractive---no one you would wish for a neighbor.  Still, a sizeable number of Americans are bothered by the potential consequences of a penalty that has no recourse if applied in error. 

My personal skepticism was born in a courtroom in Bennettsville, SC, in January 1964 when as a television newsman, I witnessed the trial of a young black teenager charged with the rape and murder of an elderly white woman.  Johnnie Poe had allegedly confessed to the crimes and was being defended before an all-white jury by a white, court-appointed attorney, Marlboro County State Senator John “Jack” Lindsay. 

The racial breakdown in Marlboro County at the time was pretty even, but the Voting Rights Act had not been passed. Therefore, Lindsay had nothing to gain by defending Poe vigorously, but he did just that. He revealed that a state-sponsored examination of the defendant’s intellectual abilities indicated Poe had an IQ lower than 95 percent of all Americans, which meant he could not have written or dictated the confession attributed to him. Lindsay also pointed out his client was the third person to confess to the crime and the only one without a record of violence. In addition, when challenged by the senator, an FBI examiner assigned to the case was unable to positively tie hair found at the scene to Poe. 

It took the jury slightly more than an hour to find Poe not guilty. With a lesser defense attorney, the young teenager might easily have been convicted. After witnessing that trial, I have never felt comfortable about the death penalty. 

With regards to the use of capital punishment, the United States is something of an outlier. According to Amnesty International, 142 countries have abolished the death penalty in either law or in practice. Among the 56 nations that retain the death penalty, the US ranked seventh last year in executions. Four countries: Iran, Saudi Arabia, Iraq and Pakistan, accounted for nearly 90 percent of the 657 documented executions in 2019. China, like North Korea, keeps its death penalty statistics secret, but Amnesty International estimates the number executed by China in 2019 was in the thousands. 

The United States does not share political philosophy or humanitarian goals with any of the countries continuing to use capital punishment extensively.  

What is behind the reluctance to eliminate capital punishment in America? 

Some people believe the death penalty is a deterrent that prevents future capital crimes, but there is no supporting evidence. Obviously, it deters the guilty party from future crimes, but whether capital punishment has any influence on potential perpetrators is unproven. 

The argument is also made that the death penalty is appropriate when the crime is of a heinous nature. Society expects to see a person guilty of inflicting death suffer death in return. But the American justice system is not flawless and often capital punishment is applied arbitrarily. 

Racial discrimination is rampant in the imposition of capital punishment. In both North Carolina and South Carolina more than 50 percent of inmates on death row today are African Americans, even though the race represents only 26 percent of the population in South Carolina and 22 percent in North Carolina. 

In addition, eyewitness misidentification, poor forensic science, prosecutorial misconduct, and bias profiling by police are factors that can produce incorrect results. Nonprofit organizations like the Innocence Project and the Equal Justice Initiative have uncovered hundreds of cases involving murder convictions of innocent defendants. 

A major problem with the exercise of the death penalty in the US is our federal system. Criminal laws in general are enforced by the states, and currently, capital punishment is considered legal by 28 states, American Samoa, the US military and the federal government. There has been, however, little discernable difference in the murder rates in states with the death penalty and those without. But it is a murky system of justice where the punishment for a crime depends in part upon the geographic location or the jurisdiction in which the crime occurs. At some point the Equal Protection Clause of the 14^th Amendment should come into play.

Thus far, the US Congress has refused to grapple decisively with the issue of capital punishment. It has been left primarily to the US Supreme Court to attempt to address the obvious inequities in it imposition. That is not how the system is supposed to work. Enacting appropriate laws is the responsibility of our national legislature. 

Capital punishment cannot be defended as a legitimate criminal penalty today. Its effectiveness as a deterrent has not been established. There is clear evidence of racial and socio-economic discrimination in the operations of the system. As well, mistakes happen within the system. Despite the best intentions of those staffing the system, the risk of executing an innocent person will always exist. 

The US Congress should immediately abolish the death penalty in all jurisdictions. Attention in the future could then be turned to implementing a fair and equitable system of justice that reflects the humanity of the American people.

The Threat of "Gig" Companies

Since Election Day 2020 most attention in the US has been on the presidential contest and Donald Trump’s avalanche of frivolous lawsuits. Perhaps some scrutiny is due the passage of a California ballot measure, Proposition 22. It undermines worker rights and has the potential for also threatening the solvency of the Social Security Trust Fund. 

Labelled the “Exempts App-Based Transportation and Delivery Companies from Providing Employee Benefits to Certain Drivers” initiative,” Prop 22 overturns a California law that sought to insure workers in the so-called “gig” economy receive appropriate benefits and protections. Borrowed from the musical world where musicians often refer to a performance as a “gig,” the term emphasizes the short-term or temporary nature of a worker’s employment. 

Uber, Lyft and DoorDash designed the ballot measure that won with 58 percent of the vote. Among the leaders in the “gig” economy, these companies, which provide transportation services, want to continue to classify their drivers as “independent contractors” instead of considering them employees as California law would require. 

Workers designated as “independent contractors” are not entitled to the normal benefits employees receive, such as workman’s compensation and wage and hour protections. They also have to pay Social Security and Medicare taxes out of their own pockets. 

The companies justify their position by denying they are transportation companies. They are primarily technology companies in their view---they use smartphones to connect clients with their drivers. Therefore, they should not have to meet the requirements related to licensing, safety checks and employment which generally are imposed on transportation enterprises.  Several states and courts, and other countries, have rejected this assertion consistently since 2009 when Uber was founded. 

It was something of a surprise that Prop 22 passed. Labor unions opposed it since it obviously stripped workers of significant rights. A few weeks prior to election day only 39 percent of the public indicated support for the measure. 

But the companies invested over $205 million in the Yes campaign, bombarding the television airwaves, social media and their own apps with messages touting a minimum wage for drivers and other benefits consistent with a fulltime job. The ads also claimed that most drivers supported Prop 22, but that could have been inspired in part by the companies’ threat to leave California if the measure failed. 

Yes campaign ads also caused some voter confusion. For example, while the companies promised support for a generous minimum hourly wage, the method by which that wage would be computed was not clear. According to one post-election survey 40 percent of voters who cast a Yes ballot thought they were supporting a “living wage” for gig workers, but the promised wage will cover only hours drivers spend ferrying clients, not hours waiting or otherwise engaged in support of the service. 

Based on their success in California, it is anticipate that Uber, Lyft and DoorDash will pursue similar legislation in other states. They have also indicated a desire to seek federal legislation to further their objective. 

The business model of gig enterprises is based on reducing in every possible manner any obligation to share profits with workers, the people who actually provide the services a company delivers. In fairness to gig companies like Uber and Lyft, they are only mimicking to the extreme the negative policies towards workers already being pursued by most of today’s corporate giants. This is a major factor in creating the income inequity that has plagued America for the past four decades. 

But it is not only the workers of these companies that will be impacted as result of Prop 22. 

The Social Security Trust Fund is already under pressure. The latest official estimate is that by 2035 the fund may not be able to pay full benefits to recipients. If companies are allowed to continue to expand the number of workers classified as independent contractors, this problem will be exacerbated. 

Why? Because companies are not required to withhold taxes from wages paid to independent contractors, nor to remit due payroll taxes (Social Security and Medicare). Instead, workers classified as independent contractors are considered self-employed and are responsible for filing and paying all taxes themselves. 

It has been well documented that a significant percentage of self-employed workers misreport their income for tax purposes. A 2018 tax preparer industry survey found that 32 percent of self-employed workers admitted underreporting, while 36 percent “don’t do taxes at all.” 

A 2019 study by the Center for Retirement Research at Boston College estimates that underpayment of Social Security contributions in 2014 amounted to nearly $6 billion. Given the expansion of the gig economy, it seems logical to assume the number of independent contractors has increased in the past six years and the underpayment has grown. 

The failure of independent contractors to fully pay due payroll taxes has consequences. Not only does underreporting lower the Social Security benefit the individual gig worker will receive, but it also threatens the benefits of all beneficiaries by undermining the solvency of the Trust Fund. 

Congress needs to act now to head off this infringement of workers’ rights. No state should be allowed to undermine a federal program, especially one as important to the economic viability of so many citizens as Social Security. Nor should any company be allowed to enrich its management and shareholders at the expense of its workers.   

Legitimate Reasons for Statehood

Discussion of statehood for the District of Columbia and Puerto Rico is becoming intense as the Biden administration begins to take shape. Part of the intensity is the result of fear that a recalcitrant US Senate under the iron thumb of GOP Majority Leader Mitch McConnell will frustrate the ambitious goals of the new president. Adding four new senators might change the political math of the US Senate and reduce McConnell’s power. 

The expectation that the new states would send Democrats to the senate may turn out to be wishful thinking on the part of Biden supporters. There are, however, legitimate reasons to grant statehood to both of these entities, regardless of partisan concerns. Although the characteristics and history of DC and Puerto Rico are quite different, their political status is the same: residents of both are US citizens, but they are not allowed to exercise fully their citizenship rights for only one reason…where they live.  

Nearly fifty years ago, I completed a Ph.D. dissertation that addressed the status of “US-Administered Overseas Areas,” which included Puerto Rico. In the study I acknowledged the reluctance of Americans to admit that the US is a colonial power and our difficulty in reconciling the traditional American support for the right of self-determination with continuing to govern overseas areas as dependent possessions. That conundrum still exists today. 

Although the Constitution grants to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” (Art. IV, Sec 3), there never has been a conscious, consistent policy to guide the country’s governance of dependent territorial areas. Most such dependencies were acquired for strategic reasons related to American military involvements, and little planning has gone into their political and economic development. 

Puerto Rico was acquired in 1898 along with the Philippines and Guam as result of the Spanish-American War. The island’s residents were not granted US citizenship until 1917 under the Jones Act. They were not allowed to elect their own governor until 1948. The election of Luis Munoz-Marin led in 1952 to what was touted as a unique creation: the Commonwealth of Puerto Rico. 

Originally, “commonwealth” was to be a transitory status between independence and statehood within the US. Under this arrangement Puerto Ricans were to enjoy self-government in all domestic matters, electing their own government and passing their own laws, as long as they did not contradict the US Constitution, law and regulations. Foreign affairs remained the purview of the US government. The Eisenhower administration used the status to persuade the United Nations to remove Puerto Rico from its list of non-self-governing territories. 

Autonomy has been illusionary under commonwealth status. Puerto Ricans were drafted into the US military, but they have not been allowed to vote for the US president or representation in the US Congress. Until the late 1960s, it appeared commonwealth status might produce economic progress for the island, but that too has proven a false promise. 

Despite US corporations receiving significant tax breaks for the thirty years between 1976 and 2006, the latest available household income data indicates residents of Puerto Rico have an annual income of a little over $20,000, less than a third of that for US residents. Forty-three percent of the island’s residents live in poverty, including fifty-seven percent of the island’s children, according to recent US Census Bureau data (2018). With no regard for the deprivation reflected in these numbers, Puerto Rico is not allowed equal participation in essential social programs such as Medicaid and food stamps. 

Ironically, since Puerto Ricans hold US citizenship, they may move to any US state and participate fully in all programs, including voting for President and Members of Congress. The past decade has seen a significant increase in migration of Puerto Ricans to the mainland, Florida being the primary magnet. As a result, there are over 5 million people who identify as Puerto Rican in the US today, while the island’s population has decreased from 3.6 million in 2000 to an estimated 3.2 million today. 

DC, with its population of an estimated 717,000, is not governed under the same legal authority as US territorial dependencies. A provision in Article I, Section 8 of the US Constitution created the District and authorized Congress “To exercise exclusive  Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the seat of the Government of the United States,…” 

Over the years Congress has subjected DC to a variety of governing structures. For ninety years it was governed as a municipal corporation with three commissioners appointed by the President. Congress was DC’s legislature. In 1961, DC residents were granted by constitutional amendment (XXIII) the right to choose electors for President “equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State;…” It was another decade before DC was allowed a non-voting delegate to Congress.

The Home Rule Act, passed in 1973, provides the governing structure currently in place. It gives DC residents the right to elect their own mayor and a 13-member council which functions as a legislative body. Congress still retains the right to review all legislatioin passed by the council before becoming law and has authority over the DC budget. Also, the President appoints DC judges, and there is still no voting representation in Congress. 

In terms of population, both DC and Puerto Rico compare favorably to existing states. With 717,000 citizens, DC is larger than Wyoming and Vermont and is approaching in size Alaska and North Dakota. Puerto Rico’s 3.2 million makes it larger than 20 existing states and DC. The large number of people claiming Puerto Rican descent living in the US today over 5 million, increases the urgency of providing statehood. 

From an economic point of view, DC residents pay a higher per capita federal income tax than residents of any current state. Puerto Ricans do not pay as much as DC residents, but net federal expenditures (expenditures minus taxes) of the island are less than those of 19 current states, including South Carolina. Puerto Rico is also home to 12 of the world’s 20 top pharmaceutical companies and five of the top selling drugs are manufactured on the island. 

It is increasingly problematic that the US citizens who reside in the District of Columbia and in Puerto Rico can reasonable be denied the right to full participation in their own governance when granting statehood to both DC and Puerto Rico would effectively accomplish this objective. The alternative makes little sense in terms of fairness and national security. 

DC, our national seat of government, originally had a population of less than a few thousand souls. Today, it has nearly three-quarters of a million US citizens. Is it wise to continue treating them like “wards” of the federal government? 

Puerto Rico has been a US dependency for more than a century. Its strategic importance was the original motivation for retaining control over the island. That has not diminished. The Roosevelt Roads Naval Station is the cornerstone of our Caribbean Defense System. Welcoming Puerto Rico into the US family will enhance respect for our nation among Latin Americans. 

The fiscal costs of granting statehood to DC and to Puerto Rico are infinitesimal. The political and security costs are difficult to underestimate.