The Death Penalty Blues

“If I can demonstrate that [the punishment of death] is neither necessary nor useful, I shall have gained the cause of humanity.”

— Cesare Beccaria, Dei delitti e delle peneCh. 28 (1764)

Andrew Cohen has an interesting article up at the Atlantic about the Death Penalty.  He notes a trend in the thought process of Supreme Court Justices who deal with capital cases: the longer they are on the bench, the more likely they are to change their mind about the Constitutionality of the Death Penalty.  Here’s Justice Blackmun from a 1994 case, Callins v. Collins:

The basic question [about the Death Penalty]—does the system accurately and consistently determine which defendants “deserve” to die?—cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Here’s Justice Stephens in 2008, from Baze v. Rees:

Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.

Our former emphasis on the importance of ensuring that decisions in death cases be adequately supported by reason rather than emotion has been undercut by more recent decisions placing a thumb on the prosecutor’s side of the scales.

A third significant concern is the risk of discriminatory application of the death penalty. While that risk has been dramatically reduced, the Court has allowed it to continue to play an unacceptable role in capital cases.

Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses.

Cohen notes that Justice Powell and O’Connor also had doubts about the Death Penalty near the end of their tenure.  But what about Justices that flipped the other way, from opposing to supporting the Death Penalty?  It would appear that none exist:

 [L]et’s list the Supreme Court justices of our time, or of our parents’ time, who started out as advocates for the abolition of capital punishment but whose experience with capital cases on the High Court over decades caused them to support the death penalty. Alas, we can’t do it. Not a single justice has ever been so converted. […]

This is interesting stuff.  But Cohen also notes that nobody seems to be arguing that the Death Penalty violates the 8th Amendment’s ban on “cruel and unusual” punishment anymore:

Much about the death penalty today, even by the murky standards of Furman or Gregg, is indefensible, which helps explain why three of the justices responsible for its resurrection in 1976 stopped defending it. And yet the Supreme Court persists today in endorsing America’s capital regimes without even candidly acknowledging the flaws in them. Meanwhile, the ultimate question—whether the death penalty violates the Eighth Amendment as “cruel and unusual”—never even comes up anymore because advocates understand that there are at least five votes on the current Court, perhaps more, to sustain capital punishment.

Justice Brennan infamously used to trade dissents with Justice Marshall in Death Penalty cases after it was revived in Gregg v. Georgia.  In his dissent to Gregg, Brennan wrote:

The fatal constitutional infirmity in the punishment of death is that it treats “members of the human race as nonhumans, as objects to be toyed with and discarded. (It is) thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.” … As such it is a penalty that “subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Eighth Amendment].” I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. “Justice of this kind is obviously no less shocking than the crime itself, and the new ‘official’ murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first.

In one of his dissents from a denial of certiorari, Brennan described the process of death by electric chair:

Th[e] evidence suggests that death by electrical current is extremely violent and inflicts pain and indignities far beyond the “mere extinguishment of life.” Witnesses routinely report that, when the switch is thrown, the condemned prisoner “cringes,” “leaps,” and “fights the straps with amazing strength.” “The hands turn red, then white, and the cords of the neck stand out like steel bands.” The prisoner’s limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner’s eyeballs sometimes pop out and “rest on [his] cheeks.” The prisoner often defecates, urinates, and vomits blood and drool.

But surely we have solved this issue with the advent of lethal injection: it puts the person to sleep, and then stops their heart.  Boom.  No pain, no struggle, it’s a peaceful ride into dreamland.  This would seem to alleviate some of Brennan’s concerns.

Unfortunately, it’s not that simple.  There is plenty of evidence that Lethal Injection is not the straight-forward joyride it’s been made out to be.  First, not all Lethal Injections are created alike.   Montana’s highest court recently struck down their Lethal Injection law as Cruel & Unusual, pointing to problems in its regulation and execution.

Second, Lethal Injection has been bungled in the past.  In 2009, Ohio authorities tried to execute a man named Romell Broom for two hours.  There was no physical harm done, but imagine the psychological torture of those two hours; incompetent executioners fumbling with a needle that, in Broom’s case, will suffocate him in his sleep.

Third, studies have been done showing a non-trivial likelihood that some victims of Lethal Injection were quite aware of their circumstances when they were killed.  To borrow from Wikipedia:

In 2005, University of Miami researchers, in cooperation with an attorney representing death row inmates, published a research letter in the medical journal The Lancet. The article presented protocol information from Texas and Virginia which showed that executioners had no anesthesia training, drugs were administered remotely with no monitoring for anesthesia, data were not recorded and no peer-review was done. Their analysis of toxicology reports from Arizona, Georgia, North Carolina, and South Carolina showed that post-mortem concentrations of thiopental in the blood were lower than that required for surgery in 43 of 49 executed inmates(88%); 21 (43%) inmates had concentrations consistent with awareness.[4] This led the authors to conclude that there was a substantial probability that some of the inmates were aware and suffered extreme pain and distress during execution.

But even if we ignore all of this information, Justice Blackmun’s objection still remains unaddressed.  We know with a statistically significant degree of certainty that innocent people are executed.  In order to support the Death Penalty, you must support the killing of innocent people.  If that makes you uncomfortable, you should probably stop supporting the Death Penalty.

This may seem to be an oversimplification of the issue.  But it’s really not.  It may comfort you emotionally to think about an “evil” person getting what they deserve.  But we know we are going to get it wrong at least some of the time due to human error.  According to Professor Risinger at the link above, wrongful convictions occur in 3-5% of the Capital cases he’s studied.  So we’re not talking about 1 in a million.  More like 1 in 20.  In other words, it’s not matter of if innocent people get executed.  It’s a matter of when.  If you support the Death Penalty, you have to be willing to argue that killing a handful of innocent people from time to time is worth it to ensure that bad people can still be executed.  I personally find that view reprehensible.  But, you know, different strokes.

Given these realities, it comes as no surprise that the longer Supreme Court Justices deal with Death Penalty cases, the more likely they are to believe that it is Constitutionally infirm.  All of this information is out there.  Supreme Court Justices are just uniquely predisposed to encountering it since they deal with Death Penalty cases regularly.  Given how much information is out there, it does not surprise me in the least that the longer Supreme Court Justices deal with Death Penalty cases, the less likely they are to support it.

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