Monday, February 19, 2007

Of life and death

Whenever people are feeling vulnerable, when they or someone they know has been a crime victim, or when the crime rate in their area is higher than what they deem to be acceptable, somebody brings up the Death Penalty. If they live in an area that eschews it, they call for its introduction; if they live where the Death Penalty exists, they call for more its more liberal application. Without regard to its efficacy, just application, or ethical/moral implications, the Death Penalty has come to be seen by some as a panacea for whatever criminal ailments are plaguing their society.

Facts, however, do not bear out the intuitive expectation that implementing draconian punishments will automatically result reduced crime. On examination it becomes obvious that such an expectation is actually quite illogical: who commits a crime with the expectation of getting caught? And if you aren’t going to get caught, then what does the prescribed punishment matter?

Interestingly, the reality seems to be exactly opposite what is expected. America is a perfect microcosm in which to study the subject, for each of its 50 states makes its own policy: 38 of the 50 states prescribe the death penalty for certain crimes while 12 states and the District of Columbia proscribe it. Data collected over the past 15 years indicates that the crime rate in death penalty states has not fallen as dramatically as the crime rates in non-death penalty states, indicating that the much-touted deterrent value of capital punishment simply does not exist.
· Populations are from the U.S. Census estimates for each year
· Murder rates are from the FBI's "Crime in the United States" and are per 100,000 population.
· The murder rate for the region (death penalty states or non-death penalty states) is the total number of murders in the region divided by the total population (and then multiplied by 100,000)

As indicated in the chart above, as executions increased, non-death penalty states did much better than death penalty states with regard to reducing their murder rates. In 1990, the murder rates in the two groups were a mere 4% apart. A decade later however, the murder rate in the death penalty states was 35% higher than in the non-death penalty states, reaching 37% by 2001. (Source: )

There is nothing to indicate any causality in the higher murder rates in the death penalty states, but it is clear that if the death penalty did have any effect, it was definitely the opposite of what was expected.

There are those who don’t care whether or not the death penalty has a deterrent effect. Their position is that if a person commits the ultimate crime, they should be subject to the ultimate penalty. The problem in this kind of thinking is that there is presently no way of absolutely knowing whether or not the convicted is, in fact, the actual perpetrator. Jurisprudence is an invention of man, who is inevitably fallible…and so his inventions must be no less fallible than he is. In other words, it is shockingly easy to convict the wrong guy…certainly death penalty advocates do not want innocent people executed?

And yet, some proponents of capital punishment remark that the percentage of executions of innocents must be statistically negligible…and therefore acceptable. But what would their position be if that lonely statistic was a son, a father, a brother? Would such a proponent complacently accept the execution of the son she birthed, the father who loved and guided him, the brother they loved? Or would they rail against the injustice of executing a person they knew to be innocent? How statistically negligible are your loved ones?

A woman once answered that question by saying that the men in her family (women are seldom executed) lived such exemplary lives that they could never be in a position to be wrongly arrested and convicted of a crime. That is probably what went through the mind of Clifford Henry Bowen: despite there being no physical evidence linking him to three murders, and twelve witnesses who placed him more than 450km from the site of the crime, Bowen was convicted and sentenced to death. He spent five years on Death Row until a court overturned his conviction because prosecutors had failed to disclose information about another suspect who resembled Bowen, had greater motive, no alibi, and habitually carried the same gun and unusual ammunition as the murder weapon.

Surely Johnny McMillian had no idea that a murder committed while he was picnicking with friends would land him on Death Row. But that’s what happened…McMillian, a black man, was convicted for the murder of a white woman in a trial that lasted only a day and a half. Three witnesses testified against McMillian and the testimony of multiple witnesses who were with him at the picnic was ignored. A post-conviction investigation by a television show revealed prosecutorial suppression of exculpatory information and perjury by the prosecution’s three witnesses.

The innocent can be…and are…convicted and sentenced to death for crimes. Statistically speaking, in the US, for every eight executions, a Death Row inmate is exonerated and set free. How many of those executed might have been innocent but were unable to prove it before their deaths? This is the major flaw in the pro-death penalty argument: there is no way to accurately insure that the person being put to death is, in fact, the person who committed the crime. And regardless of the statistical insignificance of the execution of innocents, executing your son or father, my brother or uncle, or any else’s family member who is, in actual fact, innocent of a crime, is simply wrong.

Life imprisonment of the innocent may not be just, but at least it is not irrevocable. Peter Limone spent 33 years in prison…originally sentenced to death…for a crime he didn’t commit. Two other men, convicted with him, died during their prison sentence. Limone was eventually exonerated after it was revealed that the FBI had been in possession of exculpatory information at the time of his trial and for the entire term of Limone’s incarceration. Had Limone’s sentence not been commuted to life imprisonment (due to the elimination of the death penalty in his state) he would have been executed long before this evidence was revealed. Limone was released from prison after the evidence came to light. (Go to for 123 examples of death sentences handed down to innocent people.)

Many people have allowed themselves to come to expect the insupportable from their governments: perfect safety. Risk is inherent in a free society, and the only way to remove risk from a society is to remove its freedom as well. People sometimes fail to realize that true freedom includes the freedom to make bad, wrong, anti-social, and even criminal choices. Certainly there must be consequences for making those choices, but the consequences must come after the choice is made and the action is taken, not before, and the consequences must not come at the expense of the basic human rights of the accused, who may not, as we have seen, be guilty as charged. The life and basic rights of any accused must be preserved against the very real possibility that he was not guilty of the crime for which he was convicted.

In matters of life and death, one MUST err on the conservative side.

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