A substantial shift in support for execution

A substantial shift in support for execution
February 18, 2007
David Orentlicher

We may be witnessing a substantial shift in public support for capital punishment in the United States. Nearly 100 prisoners were executed in 1999 and dozens of prisoners have been executed each year since then. However, a number of states now question whether they should employ the death penalty. Governors or courts in California, Illinois, Maryland and other states have imposed moratoriums on the use of capital punishment, and a blue ribbon commission in New Jersey has recommended its abolition. Several important reasons underlie the growing opposition to execution:

• Unfortunately, juries sometimes convict innocent persons. DNA testing has resulted in exoneration of more than 180 people, and 14 of whom had been sentenced to death. Other prisoners have been exonerated when eyewitness testimony proved to be inaccurate or confessions were found to be false.

• Many people support executions as a punishment for the most heinous murderers. But the death penalty is not reserved for the most egregious criminals. Indeed, some states, including Indiana, permit it even when the defendant did not actually kill the victim.

• Unfair in other ways. When two people commit the same kind of murder, one may receive a death sentence while the other is sentenced to life in prison -- or less. In some states, the race of the defendant and victim affects the likelihood a prosecutor will seek and the jury will impose a death sentence. One study of capital punishment in Georgia demonstrated that even after taking into account other relevant factors, defendants who killed whites were four times as likely to receive a death sentence as defendants who killed blacks.

• Inhumane executions. Capital punishment continues to be plagued by serious examples of suffering. In Florida in December, the execution of Angel Nieves Diaz took more than half an hour, and required a second dose of lethal chemicals when prison officials botched the insertion of needles into his arm. And 24 minutes into the execution, Diaz was making movements suggestive of pain. Later that week, Gov. Jeb Bush suspended all executions in Florida.

• Inadequate legal representation. Defendants to murder charges often cannot afford to pay for a lawyer, and court-appointed attorneys are typically underpaid and overworked. Some defendants may get a death sentence simply because of their lawyers' incompetence.

• Lack of deterrence. The best evidence to date does not support the conclusion that the death penalty deters crime -- in part because only 2 to 3 percent of murderers receive a death sentence.

Although there might be a role for capital punishment in theory, unfair implementation disqualifies its use in a just system of law.