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http://www.washingtonpost.com/wp-dyn/content/article/2010/07/16/AR2010071602717_pf.html
Five myths about the
death penalty
By David Garland
Sunday, July 18, 2010; B03
The death penalty: the
punishment we reserve for the worst criminal offenders. Last
week, law enforcement officials said it was on the table for
four men charged in the shooting deaths of unarmed civilians in
New Orleans in the days after Hurricane Katrina. It's a signal
that the crimes were truly reprehensible. Much of what we think
we know about American capital punishment comes from the
longstanding debate that surrounds the institution. But in
making their opposing claims, death-penalty proponents and their
abolitionist adversaries perpetrate myths and half-truths that
distort the facts. The United States' death penalty is not what
its supporters -- or its opponents -- would have us believe.
1. The United
States is a death-penalty nation.
In fact, this country barely uses
the death penalty today. Fifteen states and the District of
Columbia have abolished capital punishment. Of the 35
"death-penalty states," one-third rarely sentence anyone to
death and another third impose death sentences but rarely carry
them out. In many states, the only people to be executed are
"volunteers" -- death row inmates who abandon an appeals process
that would otherwise keep them alive. Eighty percent of
executions now take place in the states of the former
Confederacy, the vast majority of them in Texas. Death sentences
have also decreased in recent years. One reason is that states
now give juries the power to impose life imprisonment without
parole. Another is that prosecutors advise victims' families
that they may be better off seeking a prison sentence instead of
capital punishment. That way, they will not have to watch year
after year as the murderer goes to court seeking to have the
death sentence overturned.
2. The United
States is out of step with Europe and the rest of the Western
world.
This claim is true in one important
sense: We have the death penalty and they don't, even if we no
longer have it in the full-blown sense. Since 1981, when France
finally gave up the guillotine (yes, people were still being
decapitated in the late 1970s), Europe has been a death
penalty-free continent, and commentators point to a "deep
divide" between it and the United States.
But this sharp contrast is
misleading. For most of the past 200 years, American states have
been on the vanguard of death-penalty reform. Michigan abolished
capital punishment for all ordinary crime in 1846, a century
before most European nations did so. Northern states were ahead
of the rest of the world in banning public execution. The United
States led the effort to develop less painful execution
techniques, replacing hanging first with the electric chair,
then the gas chamber, and finally with lethal injection. In all
these respects, the United States was no different than other
Western nations. It is only in the past 30 years that a gap has
opened up, with Europeans abolishing the institution and
Americans retaining it in an attenuated form.
3. This
country has the death penalty because the public supports it.
It is true that, when asked by
pollsters, a majority of respondents say they
support the death penalty. It is less clear whether
people are well informed about the issue, have given the matter
much thought, or have considered alternatives, such as life in
prison without parole. But majorities in other Western countries
support capital punishment, too. Their political leaders
abolished the institution nevertheless.
As in the United States, these
other nations are liberal democracies, but the balance between
"liberalism" and "democracy" is different on the other side of
the Atlantic. European leaders imposed reform, against the view
of the majority, because they believed it was the right thing to
do, because their nations' constitutions gave them the power to
do so, and because bipartisan action and strong political
parties provided cover against voter disapproval.
The United States' democracy is
different. Each state can choose whether to have the death
penalty. It's not a central government decision, as it is in
other countries. Our criminal justice system is different, too.
In many cases, we elect prosecutors and judges -- a
politicization of the process that is unheard of elsewhere. In
this country, the Supreme Court is the one national institution
that has the power to abolish capital punishment throughout the
nation. It almost did so in 1972 in Furman v. Georgia. But the
law-and-order movement of that period made the court's decision
deeply unpopular. States quickly passed new statutes and the
court backed down soon after. Since then, the court has insisted
that the death penalty must remain a matter for state lawmakers
to decide.
4. The death
penalty works.
Proponents of the current system
insist that it deters crime and guarantees that murderers
receive the most powerfully retributive punishment. It may be
the case that some death-penalty systems are effective
deterrents. Singapore has a mandatory death penalty for drug
trafficking and hangs offenders swiftly and often. In China,
thousands of offenders are killed each year, many for economic
crimes and corruption. Neither nation discloses statistics on
crime and punishment, so we have no way to know for sure. But it
stretches credulity to think that the death penalty, as
administered in the United States today, can be an effective
means for deterring murder -- the only crime for which it is
available. Last year, there were more than 14,000 homicides in
the nation but only
106 death sentences. The chances of any particular
killer being caught, convicted and sentenced to death are
vanishingly small.
Of those sentenced, 66 percent have
their death sentences overturned on appeal or post-conviction
review. (According to the
Death Penalty Information Center, a smaller number --
139 -- have been exonerated in the past 30 years, about a dozen
on the basis of DNA evidence.) The few offenders who are
executed wait an average of more than 12 years, some for as long
as 30 years. None of this makes for swift or sure deterrence. It
also does not give rise to effective retributive punishment.
Prolonged delays defer and dilute any satisfaction or "closure"
that the punishment might bring.
5. The death
penalty doesn't work.
The idea that the death penalty
definitely works may be a myth -- but this doesn't mean that the
opposite is true. Capital punishment is not, as its opponents
argue, all costs and no benefits. They are right, however, that
it is expensive. An
Indiana study last month showed that capital
sentences cost 10 times more than life in prison without parole.
And the current system ensures neither deterrence nor
punishment.
But the system serves some purposes
nevertheless. In a nation where the prison system is so overused
that the currency of imprisonment is largely devalued, the death
penalty allows juries to make an emphatically punitive
statement. Politicians give voters what they want by enacting
capital punishment statutes even when they will never be
enforced. Prosecutors use the threat of a death penalty as
leverage to elicit plea bargains and cooperation. The news media
are drawn to death-penalty cases because they elevate a routine
case to a suspenseful drama where life and death are at stake.
We avidly consume these dramatic
stories and enjoy the opportunity to engage, once more, in the
old and familiar debate. But it's time to change the terms of
that all-too-familiar debate. Getting past the myths and looking
at how the death penalty actually operates is one place to
start.
David Garland is a professor of
law and sociology at New York University. His book "Peculiar
Institution: America's Death Penalty in an Age of Abolition" is
forthcoming this fall.
Paula Sites
Assistant Executive Director
Indiana Public Defender Council
317-232-2490
psites@iquest.net
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