Toward Understanding the Death Penalty Debate
by Michael A. Foley
The death penalty remains a source of contentious public debate in the United States. No other democracy in the world uses it, yet public opinion polls in the United States have shown that support for the death penalty has been as high as eighty percent and rarely as low as fifty percent, although for a brief moment in the 1960s it fell below the fiftieth percentile. Currently, public opinion polls show that sixty-seven percent of the American people support the death penalty, although that figure drops to fifty-three percent when the option of life imprisonment without the possibility of parole is presented as an alternative.
In Furman v. Georgia (1972), the Supreme Court ruled that the death penalty was unconstitutional because it was implemented in a manner that was arbitrary and capricious. This ruling sent states back to their legislative drawing boards to fashion death penalty legislation that would avoid claims that the death penalty was administered in an arbitrary manner. In other words, death penalty statutes should make clear why people who commit the same crime (in this case, first-degree murder) do not all receive the same punishment (in this case, the death penalty).
In Gregg v. Georgia (1976), the Supreme Court ruled that Georgia's new death penalty legislation avoided the “arbitrary and capricious” implementation of the death penalty by establishing a bifurcated trial. The first stage of the trial would determine guilt. If guilty, the second stage of the trial would determine the appropriate punishment. For a jury to bring in a sentence of death, it would have to consider a range of aggravating and mitigating circumstances that would tip the weight toward the death penalty or a life sentence. It is doubtful that any legislative method can eliminate the arbitrary and capricious nature of death sentences, but asking juries to balance or consider aggravating and mitigating circumstances has proven particularly vexing.
Thirty-eight states and the federal government currently authorize the use of the death penalty. Since the reinstatement of the death penalty in 1976, there have been 887 executions, including ten of women. Of those 887 executions, 730 have been carried out in the South. Texas and Virginia account for 403 executions. A leading argument against the death penalty is that it is possible to execute an innocent human being. One very disturbing figure is that 112 death row inmates have been exonerated since 1973. These exonerations have occurred as a result of DNA testing (which is not always available), because substantive questions have been raised about a convicted defendant's inconsistencies on a confession, and, in at least one case, because someone else confessed who did commit the murder. In some cases, it is quite possible that innocent individuals have been executed.
Books on the death penalty abound. This essay focuses almost exclusively on the United States, with a brief reference to international law. However, the volumes cited under “Reference and Research” direct interested readers beyond the United States. The remainder of the essay is subdivided into the following categories: History, Collections, The Philosophical Debate, The Christian Perspective, Race and the Death Penalty, Guilty but Innocent, The Immorality of the Death Penalty, Who Are We?, International Law, and General Interest. The following recommendations serve to guide the lay reader through the vast literature available on this emotionally charged topic.
Reference and Research
One of the best places to begin any search, of course, is through reference and research books. There are several noteworthy entries. First, Louis J. Palmer Jr.'s Encyclopedia of Capital Punishment in the United States provides overviews for most Supreme Court capital punishment decisions through 2000 and reviews state laws on the death penalty, among hundreds of other entries. Here the reader will also find a list of aggravating and mitigating circumstances for those states that use this method to determine if the death penalty should be applied (and most with a death penalty use this method). For beginning and intermediate researchers, Cruel and Unusual Punishment, by Joseph A. Melusky and Keith A. Pesto; Capital Punishment, by Raphael Goldman and edited by Ann Chih Lin; Capital Punishment (rev. ed.), by Harry Henderson; and Capital Punishment (2nd ed.), by Michael Kronenwetter offer excellent resources for research and background information. These reference works contain chapters on the history of the death penalty, the general issues surrounding it (for example, deterrence versus retribution), key documents relating to the death penalty (including some key Supreme Court cases), background information on people and events in the history of the death penalty, general facts and statistics, a guide to print and nonprint resources, Web sources, and a limited annotated bibliography. Another type of encyclopedia, The Book of Execution, by Geoffrey Abbott, provides a thorough guide to the methods of execution that have been used throughout history. For a more comprehensive introduction to the range of issues that surround the death penalty debate, Robert M. Bohm's Deathquest II: An Introduction to the Theory and Practice of Capital Punishment in the United States offers a solid overview on some leading Supreme Court cases, methods of execution, punishment theory, miscarriages of justice, and concluding remarks on American death penalty opinion.
An understanding of the death penalty debate can also be gleaned from collections of historical documents. Two noteworthy entries come to mind. First, Bryan Vila and Cynthia Morris have edited a history of documents entitled Capital Punishment in the United States. This book is divided into six parts and includes sections on early Colonial views, the abolitionist movement from 1800-1917, capital punishment in the Supreme Court from 1960 to 1976, and the death penalty debate in the 1980s and 1990s. The documents provide a well-balanced history of how the death penalty has evolved in the United States. As an accompaniment to those documents, Barry Latzer's edited collection, Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment, contains twenty-three cases covering 1972 (the landmark Furman v. Georgia) through 1989 ( Penry v. Lynaugh, in which the Court determined that the execution of a mentally retarded person was not unconstitutional). A more recent collection, edited by Maureen Harrison and Steve Gilbert, Death Penalty Decisions of the United States Supreme Court, contains just eleven cases but includes the 2002 Atkins v. Virginia case in which the Court ruled that it is not constitutionally permissible to execute a mentally retarded person. Such documents invariably lead to a better understanding of the death penalty debate. In addition, Supreme Court Justices use many of the philosophical arguments about the death penalty (retribution and deterrence) that are found in all death penalty debates. A more complete historical analysis of Supreme Court decisions from 1878 through 2002 can be found in Michael Foley's Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty. More than a hundred Supreme Court cases are explained here for lay readers, including the 2002 Atkins decision, and one chapter is devoted to Furman.
The death penalty debate focuses on a variety of issues. To become acquainted with some of those issues six worthwhile collections of essays can be consulted: The Death Penalty In America, edited by Hugo Adam Bedau; Debating the Death Penalty, edited by Bedau and Paul G. Cassell; America's Experiment with Capital Punishment, edited by James R. Acker, Robert M. Bohm, and Charles S. Lanier; Capital Punishment, edited by Glen H. Stassen; The Leviathan's Choice, edited by J. Michael Martinez, William D. Richardson, and D. Brandon Hornsby; and Society's Final Solution, edited by Laura E. Randa. These books provide substantive articles dealing with all major aspects of the death penalty, including legislation, issues of justice—e.g., deterrence, execution of children, execution of the innocent—the administration of the penalty, its constitutionality, race and the death penalty, philosophical positions for and against the death penalty, theological issues, and the future of the death penalty. Randa's collection differs from the others in that, as noted in the foreword, her collection uses “multiple perspectives of legal thinkers, legal practitioners, family members of victims and convicted death row inmates to explore the ambiguities and complexities inherent in this issue.” It is an unusual and interesting collection of essays, easily accessible to the general public. Among these collections the Bedau and Cassell volume is particularly noteworthy. Published in 2004, the eight essays are divided evenly among opponents and proponents of the death penalty and cover most nonlegal and nontechnical arguments found in death penalty literature. Written by prosecuting and defense attorneys, judges, and philosophers, the essays offer a clearly and coherently written debate on the death penalty. The volume closes with a statement by former Illinois Governor Ryan on why he had to commute the death sentences of all death row inmates in Illinois to life imprisonment.
The Philosophical Debate
The debate about the death penalty focuses typically on traditional philosophical arguments of retributivism and utilitarianism. The retributive position, associated most frequently with the famous German philosopher Emmanuel Kant, basically holds that the punishment must fit the crime. Accordingly, one who takes the life of another deserves to lose his or her life. The utilitarian position focuses more on the consequences of a punishment for the criminal and society. Utilitarians question, for example, whether the death penalty will deter people from committing murder. If the death penalty can be shown not to deter people from committing murder, or if less draconian punishments deter with equal effectiveness, then, from a utilitarian perspective, the death penalty is not justifiable. To a great extent, the stage for this debate was set by the eighteenth century Italian criminologist Cesare Beccaria in his classic work On Crimes and Punishments. His work remains critical in thinking not only about the nature, purpose, and function of punishment in general but also about the need for the death penalty in particular. Kant's argument in support of the death penalty was in part a response to Beccaria. Kant's and Beccaria's arguments are updated in three books. The quintessential retributive (or Kantian) position is presented in Walter Berns's For Capital Punishment. The next two recommendations constitute philosophical debates about the death penalty. Both retributive and utilitarian arguments are made clear, but both are subjected to strict scrutiny. The Death Penalty: A Debate, by Ernest van den Haag and John P. Conrad, and The Death Penalty: For and Against, by Louis P. Pojman and Jeffrey Reiman, show no bias in presentation or format, and the reader will leave these books with a clearer understanding of the leading philosophical positions that define the debate.
The Christian Perspective
The Christian perspective has received substantive analysis in recent years. In general, this perspective reflects the New Testament philosophy that Christ's message was one of grace, salvation, and forgiveness. Accordingly, these works explain the historical changes in the Christian perspective (Christian churches have not always been as opposed to the death penalty as they currently are, although even now not all Christian churches stand opposed) as well as the reasons why the death penalty is inconsistent with Christianity. James J. Megivern's The Death Penalty: An Historical and Theological Survey provides a sound framework to reflect on the nature and meaning of the death penalty from a Christian point of view. Equally important in the Christian framework are two books by Gardner C. Hanks: Against the Death Penalty: Christian and Secular Arguments against Capital Punishment and Capital Punishment and the Bible. Both philosophical and religious arguments will be found in Lloyd Steffen's Executing Justice. While Steffen concludes that “the death penalty is neither moral nor just,” he does explain, on his way to that conclusion, the arguments advanced in defense of the death penalty, retributive and utilitarian. His final position fits within the Christian framework.
Race and the Death Penalty
“Race,” as has been often noted, is one of America's greatest problems. Vestiges of slavery and problems of race continue to haunt and confound Americans, but they are magnified by a criminal justice system that may exacerbate that racist history. And these problems swell to an incomprehensible magnitude in a system that utilizes a death penalty. For example, if there remains racial prejudice in prison sentences, much less death sentences—and there is credible evidence to suggest there is—then we remain connected to our racist history in a most despicable way, one which reminds African Americans that justice remains an elusive goal for persons of color in a country that claims to be governed by equal justice under law.
The following books focus on race and the death penalty. In their Equal Justice and the Death Penalty: A Legal and Empirical Analysis, David C. Baldus, George G. Woodworth, and Charles A. Pulaski Jr. provide a comprehensive introduction to the world of empirical analysis related to racial bias in capital sentencing. A similar approach can be found in a less comprehensive volume by Gregory Russell entitled The Death Penalty and Racial Bias. An interesting analysis of data from original records that reveal a bias of race, class, and gender can be found in James W. Marquart's The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990. In Legal Lynching: Racism, Injustice and the Death Penalty, the Reverend Jesse Jackson presents a more general argument against the death penalty based not only on racism but also on injustice and the distinct possibility of innocence, not to mention brutality and immorality.
One case in particular that has drawn widespread attention is that of Mumia Abu-Jamal. His book Live from Death Row provides an insight not only into the possibility of racism in the meting out of the death penalty but also into what life is like on death row. To reflect more fully on this case, Killing Time, by Dave Lindorff, delivers a more sustained inquiry into the details of what may have been a decision based on race rather than justice. Finally, in this critically important category, one should consider the reasoned views on the criminal justice system in general presented in Randall Kennedy's Race, Crime, and the Law.
Guilty but Innocent
The issue of innocence continues to haunt the death penalty debate. As previously noted, since executions resumed in 1977, 112 people who were sentenced to death have been exonerated. In Spite of Innocence, by Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam, offers one of the more comprehensive examinations of wrongful conviction. Stanley Cohen tells the story of some 100 men wrongly sentenced to die in The Wrong Men: America's Epidemic of Wrongful Death Row Convictions. Not only have some found themselves on death row, but a few have come close to being executed or have actually been executed. Two books offer case studies for each of these scenarios. In Adams v. Texas, by Randall Adams with William and Marilyn Hopper, the author demonstrates how he came to be convicted of a capital crime in Texas. At least he lived to tell about it. Roger Coleman did not. John C. Tucker tells Coleman's story in May God Have Mercy: A True Story of Crime and Punishment. The error-prone process of capital sentencing comes across as well in Michael Mello's Deathwork: Defending the Condemned and Cathleen Burnett's Justice Denied: Clemency Appeals in Death Penalty Cases. Burnett's book is particularly interesting, for she focuses on an often-neglected aspect of last minute appeals: clemency. She examines fifty clemency petitions to the State of Missouri and in so doing reveals the error-prone process of capital sentencing from police investigation, prosecutorial misconduct, and incompetent defense counsel to claims of disproportionality in sentencing and innocence. To understand how a capital case is tried, A Capital Case in America, by David Crump and George Jacobs, offers invaluable insights from two seasoned prosecutors who take the reader through six capital trials. Arthur S. Miller and Jeffrey H. Bowman's Death by Installments: The Ordeal of Willie Francis raises three issues: race, cruel and unusual punishment, and the distinct possibility of innocence. Sometimes, however, a work of fiction can be just as effective in capturing the reality of wrongful conviction and the possibility of wrongful execution. In this genre, Scott Turow's Reversible Errors is most effective.
The Immorality of the Death Penalty
Numerous books are available that speak to the immorality of the death penalty from a variety of perspectives. Moral arguments against the death penalty include respect for life, the failure of the death penalty to deter and therefore the needless and hence immoral taking of human life, the problem of just desserts, the issue of cruel and unusual punishment, and the arbitrary and capricious implementation of the death penalty. The following books address these and other moral issues: Stephen Nathanson's An Eye for An Eye? The Immorality of Punishing by Death; Sister Helen Prejean's Dead Man Walking; Mark Costanzo's Just Revenge: Costs and Consequences of the Death Penalty; and Michael Davis's Justice in the Shadow of Death.
Who Are We?
The death penalty is unique to the United States as a Western nation. How are we to understand that? What has our history been to bring us to this point? Will we remain the only nation in the West to rely on capital punishment as a central piece of our system of punishment? Stuart Banner provides an historical and social analysis in his The Death Penalty: An American History. In Who Owns Death?: Capital Punishment, the American Conscience, and the End of Executions, Robert Jay Lifton and Greg Mitchell examine the experiences of those directly involved in the capital punishment experience (wardens, prosecutors, relatives of murder victims, and jurors, among others) as a means of trying to explain what the death penalty means to American society and, ultimately, why it must be abandoned. Franklin E. Zimring explores the death penalty mentality of America in The Contradictions of American Capital Punishment. Austin Sarat offers a rich examination of the political, legal, and cultural meaning of the death penalty for the United States in two contributions. The first is an edited collection entitled The Killing State: Capital Punishment in Law, Politics, and Culture. This is directed more to those well grounded in death penalty literature. His When the State Kills: Capital Punishment and the American Condition, however, does not assume substantive familiarity with that debate.
Related to the question “Who are we?” is the issue of what we are to do with individuals under eighteen years old who commit capital offenses. Currently, the Supreme Court allows the death penalty to be imposed on those who commit capital crimes at the age of sixteen or seventeen. But does that constitute cruel and unusual punishment under the Constitution? On January 26, 2004, the Supreme Court agreed to hear a Missouri case that claims the execution of those under the age of eighteen violates the Eighth Amendment's prohibition against cruel and unusual punishments. To reflect more fully on this social issue, Victor Streib has written about the execution of juveniles in his book Death Penalty for Juveniles.
The death penalty can also be examined in the realm of international law. Two books worth consulting in this context are William A. Schabas's The Abolition of the Death Penalty in International Law and Roger Hood's The Death Penalty: A Worldwide Perspective. As the titles suggest, Hood's book offers a geographical portrait of the use of capital punishment, Schabas's a more documentary analysis of the death penalty's legitimacy in international humanitarian law. As stated earlier, the area of international law is beyond the scope of this essay. Still, it is important to note that, in an age of international scrutiny and global awareness, countries no longer remain islands of isolation. As a nation that trumpets human rights, U.S. support for the death penalty appears incongruous from an international perspective. Both Schabas's and Hood's books enable us to begin to reflect more carefully and substantively on that incongruity.
Several books are noteworthy but remain difficult to categorize. Rachel King's Don't Kill in Our Names: Families of Murder Victims Speak Out against the Death Penalty tells the remarkable story of people who have chosen to try to stop the death penalty because they are convinced that taking a life for a life will not solve the problem of murder. Scott Turow's Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty offers a reflective piece on the strengths and weaknesses of the death penalty as seen by one who has prosecuted death penalty cases. From a different, albeit experiential perspective, Michael A. Mello's Dead Wrong: A Death Row Lawyer Speaks Out against Capital Punishment does not hesitate to condemn the system. Another type of story is told from the perspective of one who had to carry out two execution orders. In Death at Midnight: The Confession of an Executioner, Donald A. Cabana describes what convinced him ultimately that the death penalty did not serve the country's best interests. Again one must ask, does the system work, and if not, can it be repaired? In this context, two books are noteworthy: Machinery of Death: The Reality of America's Death Penalty Regime, edited by David Dow and Mark Dow, and Beyond Repair? America's Death Penalty, edited by Stephen P. Garvey. For additional information about those affected by the death penalty—from the inmates to the victims—David von Drehle's Among the Lowest of the Dead: The Culture of Death Row offers some interesting insights not only into what happens inside death row but also the feeling of the relatives of the victims and, indirectly, of ourselves. Of course, one wonders what life is like on death row. A vivid portrayal can be found in a book compiled and edited by Jan Arriens entitled Welcome to Hell: Letters and Writings from Death Row. Finally, one might ask whether executions should be televised. In the past executions took place in public. Why were they moved inside the prison walls? John D. Bessler answers these questions in Death in the Dark: Midnight Executions in America.
The death penalty debate remains far from settled. An informed opinion, however, can be obtained by reading a number of these books. That does not mean that one's position will not change, although we all know that a new experience or a new book could or should force us to reconsider our old positions. But until then, we will at least have a position supported by sound reasons rather than by unfounded belief. These recommendations only begin to touch the vast amount of literature on the death penalty. New books, not to mention articles, appear almost monthly. The morality or constitutionality of the death penalty may never be resolved with national unanimity. Some murders are so vicious and inhumane that it is difficult not to seek the death penalty. Similarly, the nature, purpose, and meaning of the death penalty remain less than clear, not to mention the fact that problems relating to racial prejudice, potential innocence, and issues relating to human rights from an international perspective, among others, continue to challenge the death penalty's morality and constitutionality. Still, we need to think clearly and coherently about this issue, since the taking of a human life does define, in part, who and what we are. These recommended readings will help concerned citizens form an opinion informed by reason and fact rather than by emotion and hearsay.