Reflections on Capital Punishment

The Supreme Court recently held Kansas’ capital sentencing statute constitutional in Kansas v. Marsh? opinion No. 04-1170 (2006). The Justices decided that Kansas’ death penalty statute satisfied the constitutional mandates set out in a previously decided case, Furman v. Georgia, 408 U. S. 238 (1972), and rationally narrowed the class of death-eligible defendants and permitted the jury to render a reasonable, individualized, sentencing determination. The Kansas statute permitted the jury to consider any mitigating evidence relevant to its sentencing determination.

It did not interview in any constitutionally significant way with the jury’s ability to give independent weight to evidence offered in mitigation. The statute also required the unanimous vote of the jurors to impose the death sentence. A capital murder conviction requires that specific elements beyond intentional premeditated murder existed in the crime. Once a defendant is convicted of capital murder, such person then becomes eligible for the death penalty only if the State seeks a separate sentencing hearing and proves beyond a reasonable doubt the existence of one or more statutorily defined aggravating circumstances.

The Court implicitly recognized that a majority of Americans still favor the death penalty for some cases. The unspoken problem that the Court confronts is that the existence and imposition of the death penalty is both a moral and a legal issue. It is a moral issue because we consider ourselves too advanced a civilization to exact the Biblical “eye for an eye” and “tooth for a tooth”. The loss of a loved one to murder is unlike any other blow ever delivered to another person, be this parent, relative, or friend.

Professional distance of lawyers is not present in death cases. Execution of the convicted murderer become the battle of the zealots. The Supreme Court had dealt with the constitutionality of a state’s death penalty statute previously. In Furman v. Georgia, a majority of the members of the Supreme Court decided in 1972, each for his or her own reasons, that the imposition and carrying out of the death penalty in the five cases before it constituted cruel and unusual punishment in violation of the Eighteen and Fourteenth Amendments.

This effectively abolished the death penalty as a punishment option in all fifth states until they each enacted new capital punishment statutes providing objective standards for imposing the ultimate sentence of death. At the time of this decision there was virtually no logic as to which accused person was selected for execution. Such new and improved statutes were upheld as constitutional in Gregg v. Georgia, 428 U. S. 153 (1976).

The four year gap between 1972 and 1976 is important, because no accused murder was sentenced to death during that time period and many had their sentences reduced or commuted. The Furman decision effectively abolished the death penalty as a punishment option in all fifty states until the states enacted new capital punishment statutes providing objective standards to guide, standardize, and make rationally reviewable the process for imposing the death sentence. The Furman Court reviewed all the reasons for and against capital punishment.

Mr. Justice Douglas, in his concurring opinion, traced the history of the “cruel and unusual punishment clause”, back to the English Bill of Rights, dated December 16, 1689, enacted under the reign of William and Mary, which states that “excessive bail out not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. He reviewed all the reasons for and against imposition of the death penalty, including that, in the Furman case, the Defendant was a 26 year old African American who had finished the sixth grade.

His psychiatric examination for his plea of insanity resulted in a report from the Georgia Central State Hospital that he was mentally deficient, with psychotic episodes associated with convulsive disorder. He was not psychotic at president but was not capable of assisting counsel in preparation of his case. He needed further psychiatric hospitalization and treatment. Prior to trial he was further diagnosed as not currently psychotic knowing right from wrong and able to cooperate with his counsel in preparing his defense.

The Justice further compared the current system of law and justice leaving the death penalty or imprisonment of such defendants to the discretion of judges or juries to the “Bloody Assizes”, the reign of terror during the closing years of the rule of Charles II of England. The Justice of the Supreme Court proceeded to write and argue for a total of one hundred twenty-two opinionated pages. The discussions of the Justices reflected the divisions within American opinions at the time of their decisions.

Some of the more familiar topics of discussion have been and will always be that capital punishment is itself cruel and unusual, a relic of early penology, when slavery, branding and other corporal punishments were commonplace. Executions have no place in a civilized society. Since murder itself demonstrates a lack of respect for human life, any policy of state-authorized killings is itself immoral. The death penalty is applied randomly and discriminatorily against the poor, the people of color, and the uneducated.

Capital punishments wastes valuable resources. It squanders the time and energy of courts, prosecuting attorneys defense counsel, juries, and courtroom and correctional personnel. It is counterproductive as an instrument for society’s control of violent crime. Capital punishment does not deter crime. Any form of capital punishment is itself barbaric, whether by hanging, firing squad, gas chamber, electrocution or legal injection. Use of the gas chamber, electrocution and legal injection for executions are not free from error.

It is important for any person involved in the criminal justice system who might come in contact with an accused or convicted murderer to be familiar with these arguments, be aware of differing opinions on the major issues, and be able to discuss them intelligently with the other participants in the system and potentially even the family members of the victim or victims. One must be able to answer for himself or herself the ultimate question: if the people are the ultimate source of authority in a democracy, should the government be allowed to eliminate its citizens, who are supposed to be a superior power?

If so, the question becomes – under what circumstances. Dorothy Otnow Lewis, M. D. , interviewed murderers, including Ted Bundy Arthur Shawcross and Mark David Chapman, the man who show John Lennon. She discussed her findings in her book Guilty by Reason of Insanity (1998). Dr. Lewis found that most killers are mentally ill or neurologically impaired such that they cannot conform their actions to societal norms but are not insane within the legal definition of insanity. The people she interviewed were generally tremendously abused as children.

This raises a new discussion about what we really should do with such people who need proper diagnosis and medication plus incarceration to enable them to live within the society of criminals in a locked facility. Many such persons are and will be put to death. As part of Illinois’ study of continued use of the death penalty as a punishment, two leading death penalty researchers were hired to determine whether there was any evidence that race played a part in who had been sentenced to death in Illinois since 1977. The race effect was unexpected.

In Illinois, about 70% of the persons convicted and sentenced for first-degree murder were African Americans, as were more than 60% of the victims. About 17% of the killers convicted were white as were 25% of the victims. Of those convicted, white murderers were sentenced to death at a rate two and one half times that of the African American murderers. Several reasons were uncovered. The death penalty was given more frequently in the white, rural parts of the state. White people are more likely to associate with and murder white victims.

Killing a white person made the accused three and a half times more likely to receive the death penalty than if he or she had killed an African American. It is believed that jurors consciously or subconsciously calculate the harm to the community caused by the murder. The financial costs of a murder trial involving the death penalty are indeed much higher than those involved in one in which life imprisonment is the available punishment. Studies show that the expenses involved in a murder trial when the death penalty is at issue range from double the cost of a life term in prison to six times the cost of such penalty.

These costs arise from current state and federal safeguards against execution of the innocent. First there are state and county paid expenses involved with investigation and trial of the accused and his representation by competent attorneys also paid by the county. Texas law now requires the assignment of two lawyers to each capital defense. If convicted, the defendant spends an average of six years housed on a state’s death row while appeals to judges at all levels of state and federal courts are made. There are many exceptions to this average.

A good lawyer, with help from sympathetic judges, can postpone an execution for many years. When Duncan Peder McKenzie was executed on May 10, 1995, he has been on Montana’s death row for two decades. A total of forty-one state and federal judges and examined the case, (many of them several times) and has issued two dozen published opinions analyzing various claims. His last argument, which was rejected, was that he had suffered enough because of the delay and should be forgiven his death penalty. The state of Oregon provides a general view of how death penalty cases are tried in the twenty-first century.

A government funded agency, the Indigent Defense Board, contracts with Lawyers for all court-appointed capital cases. The trial judges technically approve requests for funds ex parte so prosecutors will not learn defense strategies. Trial judges are reluctant to refuse a request that might later constitute reversible error. Oregon taxpayers spent almost seventy-five million dollars in 2001 to fund indigent defense, including paying two or three lawyers plus support staff per case. The total budget of all prosecutorial officers was just under fifty million dollars.

A person with no visible means of support or assets charged with aggravated or capital murder in Oregon receives a “Dream Team” defense. Such defense also includes hiring “mitigation specialists”, whose job is to dig up any scrap of positive information about someone facing a possible death sentence. We would not ask less of our legal system than to have multiple safeguards in place to guard as best we can against mistakes. Because of these safeguards, there is no evidence that the death penalty in this country has ever executed even one innocent person in the past century.

There are no constitutional safeguard for the victims, no guarantees that anyone will never suffer a violent crime. The law, by its own terms, has failed these people. That is why we consider a crime to be committed against the community as a whole, so matters of policy, including punishment, depend on community judgments. The Justices of the Supreme Court, as late as 1987, ruled in Booth v. Maryland that is was unconstitutional in a capital sentencing proceeding to admit a survivor’s statement of the impact of the crime. Such evidence was inflammatory and irrelevant.

Sentencing should look solely to the character of the defendant and his crime, not to the tears of the bereaved. Until the advent of the Supreme Court’s decision in Payne v. Tennessee, 111 S. Ct. 2597 (1991) the victim’s voice was stunningly absent from any murder case. Defense attorneys do not want the victim’s voice to be heard in the courtroom. The crime victim’s survivors more often than not favor the death penalty. They realize that they will never get their loved one back. Some fear that the child or loved one’s killer will be released, and they want him or her off the streets to that others are safe and this person will not kill again.

Life sentences pose a great emotional burden on the survivors for several reasons. “Life” does not always mean “life”. The convicted murderer can petition for a pardon or parole. Then the survivor must appear before the Prisoner Review Board to beg that the murderer be kept behind bars. Convicted prisoners make escape attempts. As long as a killer is alive, he or she can keep throwing paper at the court system. The person in a penitentiary cell does not have much to lose. The law could eventually come to his or her assistance. This has already happened in two major situations.

The Supreme Court decided, in Atkins v. Virginia, 536 U. S. 304 (2002) that the execution of a mentally retarded person should be prohibited as a cruel and unusual punishment. The Court reasoned that mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial, but, by definition “they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reactions”.

This does not exempt them from criminal sanctions but rather diminishes their personal culpability. The Court further questions whether the two main justifications for the death penalty – retribution for the crime committed and deterrence of capital crimes in general – applied to mentally retarded offenders. The Court concludes that mentally retarded defendants may not be able to process what the execution process actually means and control their conduct accordingly.

Exempting the mentally retarded from execution will not lessen the death penalty’s deterrent effect on other offenders. Mentally retarded defendants in the aggregate face a special risk of wrongful execution because they might confess to crimes they did not commit, be less able to provide meaningful assistance to their attorneys, be poor witnesses on their own behalf, and have demeanor that may create an appearance of lack of remorse for their crimes.

The Justices unfortunately failed to define “mental retardation” and much litigation and appeals have followed this decision. The Supreme Court also held in Roper v. Simmons, U. S. op. 03-633 [not yet codified] (2005), that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of eighteen when their crimes were committed, even though the murders and crimes committed by minors are as violent and repugnant to society as any others.

In the opinion, the Court suggests changes to come based on public opinion. The eighth Amendment’s prohibition against “cruel and unusual punishments” must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. The Court now deemed it proper and necessary to refer to what it calls the “evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual”.

Since the survivors never stop hearing about the killer while he or she is alive motivates the families of victims to talk again and again about “closure”, a final end to the legal process that will allow them to come to final terms with their grief. Some maintain that only the execution of the murderer will provide that. The family will never see the loved one again. The killer, whether sentenced to life or execution, still has birthdays and Christmases. He sees the sun rise and set. He can look through the visiting room panel and hear his mother say she loves him and he can repeat those words back to her.

The survivors want justice as embedded in the concept of restitution. The criminal ought not end up better off than his victim. To the survivors it is unconscionable and infuriating that after all the misery the murder has wrought, he still experiences many of the small joys of existence. In some measure his or her life and his family’s life is better than of the victim and the victim’s family. When the justice system works as it should, we subordinate the survivors’ wishes to the community’s interest.

This is because that while the magnitude of loss is greatest or the bereaved, the community as a whole has been deprived of the victim’s potential. When we punish we do so in the name of all of us. Many opponents of capital punishment offer life imprisonment without possibility of parole as an alternative to the death penalty. This sentence is seen by many as the perfect solution for killers on the theory that they will not be able to prey on society again. However, the phrase “life in prison” is hollow with exceptions and mistakes. The following are a few examples.