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.