Monday, September 2, 2013

Prof. Bowles Discusses Capital Punishment

I recently started a heated  Facebook discussion over Capital Punishment and a recent editorial in the Cleveland Plain Dealer entitled: "Ohio's vanishing stock of execution drugs is yet another sign that it's time to eliminate the death penalty in Ohio." You can read it here:

I strongly agreed with this editorial and while engaging with several people on Facebook who were staunchly in favor of the death penalty, I realized that many opinions about it are simply uninformed by scholarship. As a result, I compiled the following argument for the termination of the death penalty in the United States.

What is true of nearly all debates like this is that often one’s personal beliefs (and life experiences) shapes the validity ascribed to the facts presented. I promised some friends of mine who are in favor of the death penalty some quality research and opinions on this subject. And I offer the following for your consideration. As you might expect, all of what appears below supports my deep belief that capital punishment in America must end.

Here are some key facts about Capital Punishment from a collection of scholars writing a book published by Duke University Press. You can read the book: Garvey, Stephen P. Beyond Repair?: America's Death Penalty. Durham: Duke University Press, 2003.

1. Public Opinion: Since 2000, more people are seeking the abolition of the death penalty. This includes Republican Governor George Ryan from Illinois who halted executions in his state after the THIRTEENTH innocent man left death row. Read the governor’s address entitled “I Must Act” which he presented at Northwestern University College of Law. It was reprinted in the NYTimes here: In my opinion this alone should convince anyone to rethink the death penalty.  

2. Innocence: DNA technology has shown how remarkably flawed our judicial system has been in sending men to death row. Since the 1970s over 100 men have been set free when DNA technology exonerated them.

3. Capital Juries: Interestingly judges do the sentencing in noncapital cases, while juries sentence in capital cases. Professors John Blume and Theodore Eisenberg have asked the question: “How do jurors decide between life and death?” After extensive research they determined: “The results are disquieting. Far  too many unqualified jurors end up serving; many capital jurors fail to understand the basic constitutional principles on which their deliberations should proceed;…and a defendant’s fate can turn not just on the facts and circumstances of his case but also on the race of the jurors who sit in judgment of him.”

Let’s look more at race in an article published in New York University Law Review. Consider this scholarly article entitled “Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States." The law professors simply concluded: “Stark racial disparities define America’s relationship with the death penalty.They further went to explain their findings: “A new study testing internal attitudes and stereotypes among potential jurors in six death penalty states may help to explain the racial disparities that persist in the application of capital punishment. Researchers Justin Levinson (l.), Robert Smith (r.), and Danielle Young tested 445 jury-eligible individuals and found they harbored two kinds of racial bias: they maintained racial stereotypes about Blacks and Whites and made associations between the race of an individual and the value of his or her life. Those studied tended to associate Whites more with "worth" and Blacks with "worthless." The study further found that death-qualified jurors held stronger racial biases than potential jurors who would be excluded from serving in death penalty cases.”

4. International Law: Remarkably “Most of the nations with which the United States prefers to keep company have abolished the death penalty. Indeed, most of them now see capital punishment as a human rights violation.” Therefore, this weakens our global stature in fighting against other human rights violations. You can read more about this in a National Geographic article which said that only 21 countries in the world executed someone in 2012. The US had the 5th highest number of executions, though China keeps its numbers secret.

By the way, in December of last year 111 countries (that is more than half of the countries in the world) sided with a UN resolution to end state sponsored executions.  

I could suggest that everyone opposed to the death penalty read Austin Sarat’s book When the State Kills: Capital Punishment and the American Condition. This is an academic book, published by Princeton University Press with all the peer review and scholarship that goes along with this type of endeavor. His central argument is that capital punishment “undermines our democratic society.” He argues that “state executions, once used by monarchs as symbolic displays of power, gained acceptance among Americans as a sign of the people's sovereignty. Yet today when the state kills, it does so in a bureaucratic procedure hidden from view and for which no one in particular takes responsibility.” There are forces that manage to maintain this culture of acceptable killing that includes “racial prejudice, and the desire for a world without moral ambiguity.” Sarat, Austin. When the State Kills: Capital Punishment and the American Condition. Princeton, N.J.: Princeton University Press, 2001.

Other academics, this time professors of law published by Oxford University Press, ask the following important questions: “Why does the United States continue to employ the death penalty when fifty other developed democracies have abolished it? Why does capital punishment become more problematic each year? How can the death penalty conflict be resolved?” They suggest that the reason that this remains such a divided issue is because it reveals that “the seemingly insoluble turmoil surrounding the death penalty reflects a deep and long-standing division in American values.” The division is this: “On the one hand, execution would seem to violate our nation's highest legal principles of fairness and due process. It sets us increasingly apart from our allies and indeed is regarded by European nations as a barbaric and particularly egregious form of American exceptionalism. On the other hand, the death penalty represents a deeply held American belief in violent social justice that sees the hangman as an agent of local control and safeguard of community values.” The conclusion here is that “the most troubling symptom of this attraction to vigilante justice in the lynch mob.” Zimring, Franklin E. The Contradictions of American Capital Punishment. New York: Oxford University Press, 2004.

These legal and academic studies go on and on and on…I will list just one more from June 2013. This was from the Center for Constitutional Rights (CCR) and the International Federation for Human Rights (FIDH) who released their report on the death penalty in California and Louisiana. Their main conclusion was that the death penalty in these states was “arbitrary and discriminatory.” The authors wrote, “States must also ensure that all persons charged with a death-eligible offense have timely-appointed, competent, and experienced representation at all stages of a capital case, and that appointed counsel have adequate funding to carry out the tasks necessary to provide effective representation.” You can read the report here:

Finally, here are five salient points on why the death penalty does not work from Amnesty International (

1. Innocent people are on death row. Republican Governor of Illinois Georg
e Ryan said: "I cannot support a system which, in its administration, has proven so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life... Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate." Since 1973, over 130 people have been released from death rows throughout the country due to evidence of their wrongful convictions. In 2003 alone, 10 wrongfully convicted defendants were released from death row.

2. The death penalty is racially unjust. In a 1990 report, the non-partisan U.S. General Accounting Office found "a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty." The study concluded that a defendant was several times more likely to be sentenced to death if the murder victim was white. This has been confirmed by the findings of many other studies that, holding all other factors constant, the single most reliable predictor of whether someone will be sentenced to death is the race of the victim.

3. It is costly. A 2003 legislative audit in Kansas found that the estimated cost of a death penalty case was 70% more than the cost of a comparable non-death penalty case. Death penalty case costs were counted through to execution (median cost $1.26 million).

4. It is arbitrary. Almost all death row inmates could not afford their own attorney at trial. Court-appointed attorneys often lack the experience necessary for capital trials and are overworked and underpaid. In the most extreme cases, some have slept through parts of trials or have arrived under the influence of drugs and/or alcohol.

5. It is not a deterrent. A September 2000 New York Times survey found that during the last 20 years, the homicide rate in states with the death penalty has been 48 to 101 percent higher than in states without the death penalty. FBI data shows that all 14 states without capital punishment in 2008 had homicide rates at or below the national rate.

In conclusion, I sincerely hope that the American public will become more informed about the significant debate surrounding Capital Punishment. 

Professor Bowles 

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