It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, on the assumption that life imprisonment is more expensive than execution. If one takes into account all the relevant costs, however, just the reverse is true. The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment. 56 A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs – including the time of judges, prosecutors, public defenders, and court reporters, and the high costs of briefs – are mostly borne by the taxpayer.
A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison. 57 In Maryland, a comparison of capital trial costs with and without the death penalty for the years 1979-1984 concluded that a death penalty case costs approximately 42 percent more than a case resulting in a non-death sentence. 58 In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of more than $11 million. Florida, with one of the nation’s most populous death rows, has estimated that the true cost of each execution is approximately $3. 2 million, or approximately six times the cost of a life-imprisonment sentence. 60 A 1993 study of the costs of North Carolina’s capital punishment system revealed that litigating a murder case from start to finish adds an extra $163,000 to what it would cost the state to keep the convicted offender in prison for 20 years.
The extra cost goes up to $216,000 per case when all first-degree murder trials and their appeals are considered, many of which do not end with a death sentence and an execution. From one end of the country to the other public officials decry the additional cost of capital cases even when they support the death penalty system. Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime…. Politicians could address this crisis, but, for the most part they either endorse executions or remain silent. 62 The only way to make the death penalty more cost effective than imprisonment is to weaken due process and curtail appellate review, which are the defendant’s (and society’s) only protection against the most aberrant miscarriages of justice.
Any savings in dollars would, of course, be at the cost of justice: In nearly half of the death-penalty cases given review under federal habeas corpus provisions, the murder conviction or death sentence was overturned. 63 In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus64 and also ended all funding of the regional death penalty resource centers charged with providing counsel on appeal in the federal courts. These restrictions virtually guarantee that the number and variety of wrongful murder convictions and death sentences will increase. The savings in time and money will prove to be illusory. CAPITAL PUNISHMENT IS IRREVERSIBLE Unlike all other criminal punishments, the death penalty is irrevocable.
Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me. Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed. However, a large body of evidence from the 1980s and 1990s shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed. Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder.
Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court. 38 Consider this handful of representative cases: In 1985, in Maryland, Kirk Bloodsworth was sentenced to death for rape and murder, despite the testimony of alibi witnesses.
In 1986 his conviction was reversed on grounds of withheld evidence pointing to another suspect; he was retried, re-convicted, and sentenced to life in prison. In 1993, newly available DNA evidence proved he was not the rapist-killer, and he was released after the prosecution dismissed the case. A year later he was awarded $300,000 for wrongful punishment. In Mississippi, in 1990, Sabrina Butler was sentenced to death for killing her baby boy. She claimed the child died after attempts at resuscitation failed. On technical grounds her conviction was reversed in 1992.
At retrial, she was acquitted when a neighbor corroborated Butler’s explanation of the child’s cause of death and the physician who performed the autopsy admitted his work had not been thorough. In 1985, in Illinois, Rolando Cruz and Alejandro Hernandez were convicted of abduction, rape, and murder of a young girl and were sentenced to death. Shortly after, another man serving a life term in prison for similar crimes confessed that he alone was guilty; but his confession was inadmissible because he refused to repeat it in court unless the state waived the death penalty.
Awarded a new trial in 1988, Cruz was again convicted and sentenced to death; Hernandez was also re-convicted, and sentenced to 80 years in prison. In 1992 the assistant attorney general assigned to prosecute the case on appeal resigned after becoming convinced of the defendants’ innocence. The convictions were again overturned on appeal after DNA tests exonerated Cruz and implicated the prisoner who had earlier confessed. In 1995 the court ordered a directed verdict of acquittal, and sharply criticized the police for their unprofessional handling of the case.
Hernandez was released on bail and the prosecution dropped all charges. In Alabama, Walter McMillian was convicted of murdering a white woman in 1988. Despite the jury’s recommendation of a life sentence, the judge sentenced him to death. The sole evidence leading the police to arrest McMillian was testimony of an ex-convict seeking favor with the prosecution. A dozen alibi witnesses (all African Americans, like McMillian) testified on McMillian’s behalf, to no avail. On appeal, after tireless efforts by his attorney Bryan Stevenson, McMillian’s conviction was reversed by the Alabama Court of Appeals.
Stevenson uncovered prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses, and the new district attorney joined the defense in seeking dismissal of the charges. Another 1980s Texas case tells an even more sordid story. In 1980 a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 16-year-old white schoolgirl. Interrogated by the police, they were told, One of you two is going to hang for this. Looking at Brandley, the officer said, Since you’re the nigger, you’re elected. In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death.
The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley’s aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990. 39 Each of these cases has a reassuring ending: The innocent prisoner is saved from execution and released. But other cases are more troubling.
In 1992, Roger Keith Coleman was executed in Virginia despite widely publicized doubts surrounding his guilt and evidence that pointed to another person as the murderer – evidence that was never submitted at his trial. Not until late in the appeal process did anyone take seriously the possibility that the state was about to kill an innocent man, and then efforts to delay or nullify his execution failed. 40 Coleman’s case was marked with many of the circumstances found in other cases where the defendant was eventually cleared. Were Coleman still incarcerated, his friends and attorneys would have a strong incentive to resolve these questions.
But because Coleman is dead, further inquiry into the crime for which he was convicted is extremely unlikely. In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper. In 1981 Jacobs’ death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state’s witness in order to avoid a death sentence.
Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs. 41 Tafero’s death is probably the clearest case in recent years of the execution of an innocent person. Several factors help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, faulty police work, coerced confessions, the defendant’s previous criminal record, inept defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others.
And when the system does go wrong, it is volunteers outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty. CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive.
Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions. Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life.
As Nobel Laureate Albert Camus wrote, For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life. 53 It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – making the punishment fit the crime.
If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder.
If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder. Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent.
But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy. Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses.
An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder. 54 Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written: I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder. …But even as a child one thing was clear to me: I didn’t want the killer, in turn, to be killed. I remember lying in bed and praying, ‘Please, God. Please don’t take his life too.
I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief. 55 Across the nation, many who have survived the murder of a loved one have joined Murder Victims’ Families for Reconciliation (headquartered in Virginia), in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.
