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Just as in Clarence Darrow’s day, the death penalty continues to be practiced in many American states. Yet around the world, the majority of nations no longer executes their prisoners, showing increasing support for the abolition of capital punishment. Recently, in December 2014, when the United Nations General Assembly introduced a resolution calling for an international moratorium on the use of the death penalty, a record 117 countries voted in favor of abolition, while only 38 nations, including the United States, voted against it. Indeed, falling just behind China, Iran, Iraq, and Saudi Arabia, the United States is recorded to have the fifth highest rate of execution worldwide.

Since Jamestown settlers first executed Captain George Kendall in 1607, jurisdictions across the United States have approved the execution of approximately 16,000 people by various methods, including hanging, firing squads, gas chambers, electric chairs, and lethal injection. As these executions continued throughout American history, many prominent abolitionists have raised their voices against capital punishment, both in the past and the present. Dr. Benjamin Rush, an eminent physician, author, and civic leader who signed the Declaration of Independence in 1776, was an early advocate for abolishing the death penalty, while many of the country’s founding fathers, including Thomas Jefferson, favored limitations on the practice. Most recently, during the twentieth century, Dr. Martin Luther King Jr., Supreme Court Justice Thurgood Marshall, and author Sister Helen Prejean all emerged as outspoken opponents of capital punishment.

Over the course of 400 years, the popularity of the death penalty has fluctuated, with some states abandoning their use of capital punishment earlier than others. In the mid-1800s, death penalty abolitionists achieved some success, thanks largely to societal changes that included prison reform movements, religious revivals, an influx of new immigrants, and the rise of the anti-slavery movement. People interested in these issues, however disparate, found in each other a common purpose, arguing that the use of capital punishment reflected how those in power treated the poor and powerless.

Falling just behind China, Iran, Iraq, and Saudi Arabia, the United States is recorded to have the fifth highest rate of execution worldwide.

In 1847, Michigan became the first state to abolish capital punishment in the United States. Like some other states, Michigan had gradually been limiting its use of the death penalty in the preceding decades, and by the 1840s, its legislature featured many reform-minded lawmakers. Rhode Island subsequently abolished the death penalty in 1852 and Wisconsin followed suit in 1853, prohibiting capital punishment for all crimes.

Throughout different abolition periods, such as the early 1900s and the mid-twentieth century, opponents of capital punishment have raised a variety of arguments against the practice. Many question whether the death penalty serves any valid purpose, suggesting it does no more to deter crime than the threat of imprisonment. Others reason that the death penalty is inhumane and therefore inconsistent with religious principles. Most importantly, many abolitionists have highlighted the obvious fallibility of a system based on human juries and judges. Indeed, this argument has gained clout in modern times, as scientific breakthroughs in DNA testing and investigative techniques have led to the discovery of innocent people on death row. The question of race–whether the death penalty can be applied fairly and without racial bias–has also emerged alongside concerns that capital punishment targets society’s most disadvantaged.

An important turning point arrived in the 1960s and 1970s, when the Supreme Court of the United States began to address the practice as a constitutional issue. In Furman v. Georgia (1972), Supreme Court Justices found that existing procedures for the death penalty violated the United States Constitution because of the broad discretion afforded to jurors, who were capable of arbitrary and racially discriminatory decisions.

Given the worldwide trend of countries prohibiting capital punishment, many observers predicted the case would end the death penalty in the United States. However, as part of a backlash against the Supreme Court, several state legislatures renewed their death penalty laws; and in 1976, the Supreme Court upheld some of these new procedures, reintroducing capital punishment as common practice and starting a new era for the practice.

Over the following decade, the Supreme Court evaluated another broad attack on capital punishment in McCleskey v. Kemp, in which Warren McCleskey’s attorneys presented statistical evidence illustrating the racial bias of the justice system. The Supreme Court, rejecting this claim, thereby affirmed that any changes to death penalty laws would have to established through political processes.

Image: “Group of people holding signs at a death penalty protest” by OBS onthemove. CC BY-SA 3.0 via Wikimedia Commons.

Ever since the United States resumed executions after 1976, nationwide jurisdictions have sent approximately 1,400 people to their deaths. In the modern era, 1999 was notable for the highest number of executions, with 98 death row inmates executed that year. While this number dropped to 39 in 2013, more than 3,000 people remain on death row across the country.

Recently, however, activists have found some success in illuminating the drawbacks of the death penalty through educational efforts. During the past decade, seven states have repealed the practice of sentencing prisoners to death, including Illinois, the same state in which Clarence Darrow infamously defended murderers Nathan Leopold and Richard Loeb.

Presently, the federal government, along with 31 states, has upheld the use of capital punishment, whereas only 19 states (and the District of Columbia) have prohibited it. A Gallup poll in winter 2013 showed that the death penalty continues to be popular among American citizens—at least in theory—with up to 60 percent indicating their support for capital punishment in the case of convicted murderers. For some, the death penalty continues to serve as a fitting punishment and just retribution for society; for others, it continues to be justified by religion. Other advocates even assert that the death penalty may deter crime. Still, when asked to make a choice between capital punishment and life imprisonment without parole, support for capital punishment is shown to drop, as citizens are split equally between the two options.

In the past year alone, the debate surrounding the death penalty has been inflamed by botched executions, notably in the Arizona execution of Joseph Wood, who took two hours to die from lethal injection. There are also increasing concerns about the expense of the modern death penalty for taxpayers. In Texas, for example, the cost of a death penalty case today is thought to be nearly three times more expensive than imprisoning someone in maximum security for 40 years.

Charged and complex, the public debate surrounding the death penalty has once again been brought to the fore, even spilling over into international territory as European manufacturers discontinue their supply of lethal drugs to the United States. Because the death penalty in America is largely a state issue, the success of abolition efforts will most likely be gradual. However, the recent global trend against capital punishment has been encouraging to those who, like Clarence Darrow, believe that both logic and humanity demand an end to the practice of killing prisoners.

A previous version of this article appeared in the Old Vic program for the play Clarence Darrow (starring Kevin Spacey).

Featured Image: “Red Hats Execution Chamber” by Lee Honeycutt. CC BY-SA 2.0 via Wikimedia Commons

Recent Comments

  1. Dudley Sharp

    The statistical analysis, finding for racism, in McCleskey v Kemp, was destroyed in the appellate courts.

    The Arizona execution was not botched. (1).

    The Texas “cost study” was no such thing and has been thoroughly rebutted, for years (2).

    You have misinterpreted the polls. When comparing the two sanctions, LWOP vs the death penalty, support for neither drops, but some prefer one over the other.

    1) No “Botched” Execution – Arizona (or Ohio)
    http://prodpinnc.blogspot.com/2014/08/no-botched-execution-arizona-or-ohio.html

    2) 86% Death Penalty Support: Highest Ever – April 2013
    http://prodpinnc.blogspot.com/2013/11/86-death-penalty-support-highest-ever.html

  2. Dudley Sharp

    McCleskey v Kemp, the infamous race based death penalty case decided by the US Supreme Court (SCOTUS)

    Sharp: The US Supreme Court misunderstood the math involved. They ignorantly wrote: “defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.”

    Totally inaccurate. It was by odds of 4.3 times, or an odds multiplier of 4.3, which can mean a difference as low as 2-4%, as opposed to the 330% difference represented by 4.3 times. SCOTUS blew it big time on this.

    Furthermore, the database, which, allegedly supported McCleskey’s charge of racism, did no such thing and was, completely, unreliable.

    “The best models which (David) Baldus was able to devise (within McCleskey v Georgia (Kemp)) which account toany significant degree for the major non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either [the prosecutor’s or the jury’s] decisions in the State of Georgia.” (1)

    “After a thorough review, Judge Forrester concluded that “the (Baldus) data base has substantial flaws and . . . petitioner has failed to establish by a preponderance of the evidence that it is essentially trustworthy.” (1)

    ” … Baldus et al. failed to prove (and the State’s experts succeeded in rebutting) the basic claims made in the Baldus study.45 They did not just fail; they failed dismally. The Baldus study lay in shreds when Judge Forrester got through with it.” (1)

    “The Court of Appeals for the Eleventh Circuit, sitting en banc, commended the district court “for its outstanding endeavor” in analyzing the validity of the Baldus study, and there is little doubt that a review of the factual finding that the study was invalid would have been affirmed under the applicable “clearly erroneous” standard.” (1)

    Read Federal District Court Judge Forrester’s full rejection of Baldus’ database for McCleskey.

    A even more thorough review is provided by Joseph Katz, who did the methodological review of the Baldus database, which was rife with errors and problems. I have it, if you care to research.

    Based upon experience, most, if not all law schools, wrongly confirm the Baldus database.

    These two articles, below, give a good explanation of some core problem with David Baldus, in the McCleskey case and another of his reviews.

    I am unaware of Baldus making any efforts to correct these many misconceptions, over the many years that he should have. Despicable. I debated Baldus on these issues.

    A) “The Math Behind Race, Crime and Sentencing Statistics”
    By John Allen Paulos, Los Angeles Times, July 12, 1998
    http://articles.latimes.com/1998/jul/12/opinion/op-2965

    B) See “The Odds of Execution” within “How numbers are tricking you”, by Arnold Barnett, MIT Technology Review October, 1994
    http://reocities.com/CapitolHill/4834/barnett.htm

  3. Dudley Sharp

    OF COURSE THE DEATH PENALTY DETERS

    The evidence that the death penalty deters some is overwhelming.

    The evidence that the death penalty deters none does not exist.

    Life is preferred over death. Death is feared more than life.

    What we prefer more, deters less. What we fear more deters more.

    In three ways, the death penalty protects more innocent lives that does LWOP.

    The Death Penalty: Do Innocents Matter? A Review of All Innocence Issues
    http://prodpinnc.blogspot.com/2013/10/the-death-penalty-do-innocents-matter.html

  4. Dudley Sharp

    Wood’s execution was not botched.

    The Texas death penalty cost “study” has long been discredited and was never seen as credible.

    No “Botched” Execution – Arizona (or Ohio)
    http://prodpinnc.blogspot.com/2014/08/no-botched-execution-arizona-or-ohio.html

    See Texas

    Saving Costs with The Death Penalty
    http://prodpinnc.blogspot.com/2013/02/death-penalty-cost-saving-money.html

  5. Jeff Kirchmeier

    Thank you for your comments and the quotes from your blog. I’ve addressed many of the points you raise in other places, so I won’t go into too much detail here. But I’ll give a short response here to some of your points.

    Regarding the statistics in McCleskey’s case, like you, I get frustrated when the Court’s confusion about the difference between “probability” and “odds” is repeated. But the study still concluded there was a very significant risk of racial bias in some categories of capital cases, including ones like McCleskey’s.

    Regarding any disagreements about the effects of race and the costs of the death penalty, I’ll just note that there are numerous studies from a different states on those issues both following Prof. Baldus in illustrating that race affects the system and showing that the death penalty costs states more than other sentences (i.e., see http://www.deathpenaltyinfo.org/costs-death-penalty).

    Regarding deterrence, the issue is not whether the death penalty deters more than no punishment but whether it deters more than prison (as well as whether it would deter as currently administered). There is no convincing evidence it does, but I realize it is a difficult proposition to prove either way (and that folks make claims on both sides).

    For readers interested in the polls, here is a link to Gallup’s website: http://www.gallup.com/poll/1606/death-penalty.aspx

    Finally, I suppose people may define “botched” in different ways, but no matter how it is defined, it is difficult for anyone reading newspaper accounts of executions to argue that no executions have been botched recently, just as it is difficult for anyone to conclude that race does not affect the criminal justice system. The capital punishment system is run by human beings, who by our nature are biased, imperfect, and make mistakes. So one cannot ignore that those qualities are present in the our system too.

  6. Jules Levin

    Does all life include prenatal human life? Or just the lives of takers of human life?

  7. ns

    I wonder when people say that death penalty should be abolished. Can you ask yourselves as to why it should be abolished?

    The purpose behind death penalty is not alone deterrence. It has a lot more in it. When a mind is understood to be treacherous and can cause potential threat to lives in futures must be destroyed. Why destroyed? Because it can pollute other minds which will create bigger danger.

    How to understand that a mind is treacherous? There is no precise tool to measure the turmoil in the mind. So most appropriate means could be to gauge the severity and nature of the crime committed.

    If killing innocent people who has no direct or indirect involvement with criminal’s problem is one such measure of a polluted mind.

    But if the same crime is committed by a deceased mind then he must be given a treatment as a corrective remedy. But if a balanced mind does this – it must be destroyed.

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