A collective cheer went up last month, when Nebraska became the first overwhelmingly-Republican state to ban the death penalty. It joins 18 other states and the District of Columbia in doing so. But we may be cheering a little too soon. For one thing, the United States remains overwhelmingly pro-capital punishment, and for another, capital punishment isn’t the problem.
Despite falling 20 percentage points in the last 20 years, support for the death penalty in the United States is at 60% (Gallup). By state count, it’s 62% (31 of 50). That means we favor the death penalty more than we favor guns… or gun control. The fact that support for capital punishment rises during times of national crisis (right after 9/11, for example), only emphasizes the ugly truth we like to ignore: the death penalty is about revenge.
The increasing shortage of drugs used to administer lethal injection has made ignoring this truth is impossible. One gruesome botched execution after another moves us farther from justice and closer to vengeance. After Hospira ceased production of thiopental -- the FDA-regulated anesthetic most frequently used in lethal injection protocols -- in 2012, drug manufacturers’ reluctance to have their products used to kill, pressure from anti-capital punishment activists on drug manufacturers in other nations to restrict sale of these products to the US, and issues with products coming from compounding pharmacies, together resulted in four botched executions in 2014.
When the sound, smell, and sight of a man failing to die are right in front of you, in the execution chamber itself, you can’t deny you are exacting vengeance, when what you originally sought was justice. For justice, you have to look someplace else.
Justice is what we expect to mete out in our legal system, but that's not exactly what happens. Death row inmates are overwhelmingly likely to be people of color. In 2014, the US death row inmate population was 41.6% Black, 12.8% Latino, and 43% white, against a US population that was only 13.2% Black, and 17.1% Latino, and 77% White.
Death row inmates are rarely represented by Judy Clarke. Usually, their defense is provided by public defenders, who have radically overbearing caseloads, or pro bono counselors, who may have serious professional deficiencies (which is not to say that all do). In Texas, which executed almost three times as many convicts as the next most active state (167 vs Virginia’s 60) in the first 20 years after the death penalty was reinstated, there is no public defender system. Instead, defendants rely on court-appointed lawyers, who are less likely to have experience with capital crime defenses, or their appeals.
Poor representation isn’t just limited to Texas (whose legal system has many other characteristics that make the path from conviction to execution faster than in other states). As far back as 2001, Supreme Court Justice Ruth Bader Ginsburg decried the unequal treatment of poor in capital cases. “People who are well represented at trial do not get the death penalty… I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.” (Associated Press, 4/10/2001).
Meanwhile, in some states, a death penalty conviction immediately pushes resources into action. At one point, as many as seven public defenders and four researchers were granted to a death row convict in the state of New York. These are resources never granted a convict sentenced to life, which means a defendant may be better off getting a death sentence and appealing it, than making a plea for life in prison without the possibility of parole.
Of course, the defendant, and his attorney, would have to be smart enough to know that’s a better course of action, and understand the underlying risk.
The state-to-state variance in how the death penalty works doesn’t lead to balance, as variance normally does. It makes an already inefficient system more expensive, and less productive. Myriad internet sources cite the annual cost per prisoner between $25,000 and $50,000 (depending on what is included in the calculation). That’s more than twice what we spend each year on the average public school student. When death penalty convicts are included, that number rises upwards of $100,000, due to the cost of appeals – money and resources that could be spent earlier in the process, and incur a better return.
I’m a supporter of the death penalty itself. I see no reason that the likes of Jeffrey Dahmer or Timothy McVeigh should be kept around. They are guaranteed recidivists. They won’t be rehabilitated members of society and they won’t be engaged enough as prisoners to help out on Scared Straight. We spend much more than we gain by keeping them alive.
But these are the easy cases: the sociopathic, DNA-proven, video-recorded, admitted killers of multiple people who show no remorse for their crimes. Killing them isn’t about revenge. It isn’t even about justice, honestly; it’s about safety.
The majority of cases aren’t easy. Fingerprint evidence doesn’t work in real life the way it does on CSI. DNA kits go untested for as many as 20 years. Witnesses are unreliable at best, and as cases drag on they change their minds, lose their memories, or simply want to move on without participating. Victims, if they are alive, want to become survivors.
The question of whether capital punishment is wrong is often approached morally. But the job of the legal system is to approach a crime from the view of logic and evidence. Logically, capital punishment isn’t the problem; sadly, the justice system is.