A Capital Idea: Avoiding Mistakes We Can’t Undo

Capital punishment, also known as the death penalty, is one of modern society’s most controversial issues. The use of capital punishment is ancient and has been practiced in cultures all over the globe for centuries. As both a deterrent and a form of retribution, the death penalty is appealing on many levels to a wide range of cultures and individuals.

The usual argument presented by those in favor of capital punishment is its potential use as a deterrent to criminals (Jackson 92). For instance, former Illinois State’s Attorney Robert E. Crowe believed that it is “the finality of the death penalty which instills fear of punishment which protects safety.” According to journalist Michael Kronenwetter, Crowe believes in using the death penalty against murderers as a deterrent “not to protect society from them, but to protect society from others who might come after them” (5). In other words, the deterrent rationale is less about punishing the individual being executing and more about using that person an example for others to heed. Such an argument seems in conflict with our legal system’s function of punishing the guilty.

The other common justification for use of the death penalty is that of retribution or revenge for the victim or their family. This justification has great emotional appeal and plays well in the media. For instance, when my grandfather was murdered in the late 1970’s, the State of Illinois had not yet reinstated its death penalty following the Supreme Court’s Gregg decision. Had the death penalty been an option, I have no doubt that my family, like many families, would have fought hard to ensure my grandfather’s murderer was executed. For a prosecutor, it must be extremely difficult to look at a grieving family and tell them that they are going to have to remember their loved one by attending the annual parole hearings of a murderer.

At the heart of this issue, however, is the fairness and fallibility of our legal system. Disparities by race, social class and geographical origin in the application of the death penalty have led to a public outcry for a temporary embargo on executions in the United States. Moratoriums on the death penalty have been occurring across the nation, as more and more death row inmates are freed due to new evidence. Further, access to competent counsel, parity of resources and double standards in the recommendations and application of capital punishment cast great doubt on the fairness and effectiveness of the death penalty.

Professor Christopher Waldrep of San Francisco State University points out that from 1872 – 1940 “blacks made up only 10 percent” of Kentucky’s population, but they made up “57 percent of those executed.” Further, “80 percent of the men executed for rape were black” in that same time period. When one takes into consideration the fact that these Kentucky executions took place during the Jim Crow era, very little imagination is required to cast considerable doubt on the fairness of these trials and the guilt of those executed. While not proven, it is likely that many innocent men were put to death in Kentucky during that era.

In 2001, the NAACP Legal Defense Fund acknowledged that blacks on death row are no longer the majority, but are still represented at a far higher rate than their national population (Kronenwetter 49). That said, in today’s post-Jim Crow era, such disparities continue on due more to class and income differences than the race of the defendant (Kronenwetter 48). Poor defendants, unable to take advantage of top-shelf legal representation, are far more likely to end up on death row than famous, affluent suspects like athlete/actor O.J. Simpson and actor Robert Blake.

Further complicating this issue is the arbitrary nature of prosecutorial application of the death penalty. The inconsistent application of capital punishment has skewed the statistics towards putting the murderers of white victims to death at a far greater rate than those of blacks (Kronenwetter 49).

An argument can easily be made that while capital punishment is clearly applied in an arbitrary, unequal fashion, any convicted murderer sent to death row is a victory for the victims of violent crimes and their families. The unconsidered portion of that equation, however, is the growing skepticism of a public becoming more aware of such disparity of application. This skepticism is not without cost. Jurors, incensed at unequal application of the death penalty, may be more likely to acquit or convict on lesser charges in order to avoid sending a defendant to their death.

The most dire consideration of this debate, however, relates to the finality of the death penalty itself. Due to recent advances in DNA and the forensic sciences, many death penalty convicts have had their sentences overturned. These newly freed defendants are now at liberty to rebuild their lives and renew family relationships destroyed by years of imprisonment. Had their executions occurred on schedule, innocent men, convicted in a court of law, would have been executed by their government. The finality of the death penalty prevents the possibility of reversing a miscarriage of justice.

However, there is an option at our disposal that deals with the arbitrary nature of the death penalty’s application. That option, of course, is sentencing a murder defendant to life in prison without parole. This option would also allow a defendant the possibility of new evidence or technological advances leading to a new trial or the reversal of a conviction. Justice should be the goal of our court proceedings, not retribution or an ineffective deterrence. A legal function that lends itself to the possibility of the state executing the innocent is a practice we can no longer afford.

Annotated Bibliography and Works Cited

Jackson, Byron M. “Capital Punishment.” Encyclopedia of American Public Policy. Santa Barbara: ABC-CLIO. 2001. 92.

An encyclopedia outlining key policy areas of American government.

Kronenwetter, Michael. Capital Punishment. Santa Barbara: ABC-CLIO. 2001.

An in-depth look at the history and application of capital punishment.

Waldrep, Christopher. Racial Violence on Trial. Santa Barbara: ABC-CLIO. 2001.

A review of cases, laws, and documents chronicling our nation’s history of race-related violence.

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