Crueler but still not unusual: the U.S. death penalty

By Camille Landry (National Co-Coordinator)

Volumes have been written about it. Hundreds of thousands of people have protested it, written to their legislators and congress members, prayed about it, sung about it, and hoped that it would end. It has been condemned as inhumane, ineffective, racist, cruel, antiquated, vengeful and just plain wrong by individuals and groups ranging from several popes and other religious leaders to criminal justice scholars, police chiefs and prison wardens. Yet the death penalty in the United States persists. 

The death penalty remains one of the most egregious offenses against human rights in the world. The United Nations’ Universal Declaration on Human Rights clearly states that the right to life is paramount among human rights.

The United States is alone among so-called democratic nations in its utilization of the death penalty. More than 70% of the world’s countries have abolished capital punishment in law or practice. The U.S. is an outlier among its close allies in its continued use of the death penalty. No other nation that calls itself a democracy regularly kills its residents. We will leave the question as to whether the United States is truly a democracy for another time and place. 

Snuffing out life in this manner is the ultimate violation of human rights. Even worse, the death penalty is an ineffective means of preventing crime and keeping communities safe. State-sponsored murder is nothing but vengeance, a relic of the kind of violent, inhumane practices that represent our darkest and most shameful past. 

Despite ample evidence that the death penalty is ineffective, racist, costly and immoral, we persist in wreaking it upon the people of this nation. In light of evidence that it is unnecessary and wrong, this infringement of decency and justice is despicable. 

Innocent people are sentenced to death and executed. Legal scholar William Blackstone said, “It is better that ten guilty men go free than to execute a single innocent man.” Yet many innocent people in the United States have been executed.  

For every 8.3 people on death row in the United States in the modern era, one person has been exonerated in a court of law. The death penalty carries the inherent risk of executing an innocent person. Since 1973, at least 185 people who had been wrongly convicted and sentenced to death in the U.S. have been exonerated. There are many more who maintain their innocence and have strong evidence to back up their claims yet remain on death row – or have already been killed. 

Of 350 persons who were mistakenly convicted of potentially capital crimes, whose cases were reviewed in courtrooms across the country, 139 were sentenced to death, and 23 were actually executed. Researchers suspect that there are probably many more cases not yet identified. 

The case of Troy Davis is one of the best-known recent examples of an innocent man who was murdered. Mr. Davis was accused of shooting an off-duty police officer. There was no ballistic evidence to support this accusation. Other people were implicated in the shooting. Counsel for Mr. Davis was inadequate and inept. There was an international outcry against the planned execution of a man who had a credible case for his innocence; yet Troy Davis was killed by the state of Georgia on September 21, 2011.

Misconduct by police and prosecutors is common. According to the Equal Justice Initiative, in death penalty cases, perjury/false accusations and official misconduct are the leading causes of wrongful convictions. A record 111 exonerations in 2018 involved witnesses who lied on the stand or falsely accused the defendant. In 50 of these cases, the defendant was falsely accused of a crime that never happened.

Misconduct by police or prosecutors (or both) was involved in 79% of homicide exonerations in 2018. Concealing evidence that casts doubt on the defendant’s guilt is the most common type of misconduct, which includes police officers threatening witnesses, forensic analysts faking test results, and prosecutors presenting false testimony.

Official misconduct is more common in death penalty cases, especially if the defendant is Black. Data shows that 87% of Black exonerees who were sentenced to death were victims of official misconduct, compared to 67% of white death row exonerees.

The National Registry of Exonerations (NRE) Report on Race and Wrongful Convictions in the United States reveals that 87% of Black death-row exonerees had been victims of official misconduct, as compared to 67% of white death-row exonerees. Official misconduct is among the most difficult and time-consuming of evidence to unearth, and so it is not surprising that the most recent exonerations — many of which have taken two decades or more — provide ever starker evidence of race effects. The NRE data shows that 20 of the last 21 wrongly condemned African Americans (95%) to have been exonerated were victims of official misconduct, as compared to 8 of the last 12 white death-row exonerees (67%).

The National Registry reports that these racial disparities are “for the most part” the product of police misconduct. The Registry reports “a modest difference” in prosecutorial misconduct rates by prosecutors in death-row exonerations, with prosecutorial misconduct present in 59% of death-row exonerations of African Americans, as compared to 53% of death-row exonerations of whites. However, it reported “a large difference in the rate of misconduct by police”: 59% for Black death-sentenced exonerees compared to 44% for whites. The Registry reports:

“The high rate of misconduct by police in murder cases with Black defendants is reflected in the nature of the misconduct that occurs. Concealing exculpatory evidence, the most common type, is primarily a form of prosecutorial misconduct; there is relatively little difference in its frequency by race […] On the other hand, witness tampering is committed almost exclusively by police officers and occurs nearly twice as frequently with Black murder defendants.”

Racism is rampant in the way the death penalty is applied. Black people are 14 times more likely to be sentenced to death for killing a white person than white people charged with the same crime (as shown in the graphic below). People who kill whites are far more likely to receive the death penalty than people who kill Black people, even though Black people are more likely to be murdered than whites. 

Impact of race on executions. Source: Death Penalty Information Center

Mentally ill people are often executed despite laws forbidding this practice

The execution of those with mental illness or “the insane” is clearly prohibited by international law. Virtually every country in the world prohibits the execution of people with mental illness. Often the person who makes the determination of sanity in a murder trial is an employee of the prosecution; few defendants can afford to hire their own psychiatrists for determination of sanity. The Supreme Court has repeatedly declined to shield mentally ill people from the death penalty, saying only that people who are insane cannot be executed. But “insane” is narrowly defined as “those who are unaware of the punishment they are about to suffer and why they are to suffer it” — a definition that excludes most people with severe mental illness. This includes people with diagnoses of schizophrenia and schizoaffective disorder, bipolar disorder, major depressive disorder, post-traumatic stress disorder and traumatic brain injury – illnesses that make it difficult or impossible to distinguish between reality and fantasy, or to make reasoned choices, or exhibit ordinary levels of self-control. Execution of mentally ill people is cruel, vicious and unnecessary – a clear violation of human rights that is recognized by virtually every nation – except the USA. According to the American Civil Liberties Union,

“There are significant gaps in the legal protection accorded severely mentally ill defendants charged with or convicted of a capital crime. Most notably, this country still permits the execution of the severely mentally ill. The problem is not a small one. A leading mental health group, Mental Health America, estimates that five to ten percent of all death row inmates suffer from a severe mental illness.

Source: Harvard Law School – Charles Hamilton Houston Institute for Race & Justice

Cecil Clayton was executed by the State of Missouri on March 17, 2015. He was 74 years old, suffered from dementia, had an IQ of 71, was missing a significant part of his brain due to a sawmill accident in 1972 which prompted the removal of about 20% of his frontal lobe (the part of the brain that governs impulse control and problem-solving). He had previously been diagnosed with schizophrenia, extreme paranoia, and more. He checked himself into a mental hospital stating that he could not control his temper. His psychiatrist concluded “there is presently no way that this man could be expected to function in the world of work. Were he pushed to do so, he would become a danger both to himself and to others.” He had suicidal and homicidal impulses. Six separate psychiatric evaluations found that Clayton should be exempt from execution because he could not understand that he would be executed, or the reasons for his execution. Mr. Clayton was denied a formal competency hearing that could have spared him from execution. MRI evidence of Mr. Clayton’s missing brain tissue was presented at the trial, to no avail. 

The death penalty does not deter crime. States that have the most executions have the highest rates of violent crime. The 2010 FBI Uniform Crime Report showed that the South had the highest murder rate and accounts for over 80% of executions. The Northeast and West have the lowest murder rates and hold less than 1% of all executions. The death penalty is not a deterrent to violent crime. Consistent with previous years, the 2010 FBI Uniform Crime Report showed that the South had the highest murder rate and accounts for over 80% of executions. 

The death penalty is more expensive than life imprisonment. It costs 2-5 times as much to sentence someone to death as it does to sentence them to life in prison. A death penalty trial typically costs 95% more than a non-capital trial. It costs taxpayers from $2 to $5 million per death sentence for the trials and appeals. Life in prison averages $1 million (40 years at $25,000/year). Louisiana State Attorney General and former District Attorney Jeff Landry says that he can try a second-degree murder case for $15,000-20,000 instead of $250,000 for a death penalty trial. Money spent on killing people could be used to remedy the root causes of violence or to keep communities safe in other ways. 

The death penalty is applied unequally in other ways, too. Most people are shocked to find that whether the death penalty is imposed is determined more by where the crime was committed, and where the capital trial took place than the actual facts of the case. Smaller counties have lower budgets for prosecutors and are thus less likely to charge defendants with capital murder. Larger, more populous and prosperous counties are more likely to bring death penalty cases to trial. Suburban counties, although they have lower murder rates than urban counties, send more murderers to death row than their urban neighbors do

Equal justice under the law is a fundamental principle of human rights. The death penalty clearly violates that principle. 

The death penalty perpetuates violent crime. As a symbol of “being tough on crime,” the death penalty helps politicians get elected. Since it does not reduce violent crime, it wastes resources. States that have abolished the death penalty can redirect the money saved into programs that actually reduce violent crime. 

Poor people are executed much more often than wealthy murderers. The U.S. justice system treats you better if you’re rich and guilty than if you’re poor and innocent. Over 99% of the people on death row are indigent, according to one U.S. Appeals Court judge. Persons of all income levels commit murder, but poor people are the primary recipients of the death penalty. Mentally ill people are executed. Even though the law forbids the execution of those who are mentally ill, experience shows that the determination of sanity is generally made after very limited contact with the accused, often by psychiatrists employed by the prosecution. Inevitably, some who are ill are declared “sane,” and fit for execution. 

Many people accused of capital crimes are destitute. They rely upon public defenders for their defense; these attorneys have sparse budgets that cannot pay for expert witnesses who could prove their client’s innocence. Some of the attorneys who represent defendants in capital cases have come to the courtroom drunk, fallen asleep during the trial, and failed to call witnesses who could prove their client’s innocence. Some merely have little to no experience in defending capital cases. They’re fresh out of law school or inadequately trained or prepared to defend their clients’ lives. 

Supreme Court Justice Ruth Bader Ginsburg said, “People who are well represented at trial do not get the death penalty.” 

Many victims’ families oppose the death penalty. It only prolongs pain for families as it inevitably drags out the legal process and leaves families in limbo waiting for an execution that may never come. Proponents of capital punishment have long argued for the death penalty as a necessary way to bring closure to family members of homicide victims. But science suggests that achieving closure through executions is a myth, and growing numbers of family members of homicide victims do not want the death penalty to be pursued in the deaths of their loved ones. “I know how it feels to lose a son,” stated a mother whose 12-year-old was gunned down in the streets. “Why would I want another mother to go through that?” 

Bud Welch, who lost his daughter Julie in the 1995 bombing of the Federal Building in Oklahoma City, said of convicted bomber Timothy McVeigh, “At first I’d have killed him myself if I’d had the chance.” As the trial wound on, Mr. Welch realized that the execution of McVeigh would serve little purpose other than vengeance. Bud Welch met and befriended the father of the man who had murdered his daughter and 167 other people, including little children in a daycare center. Bud said of Bill McVeigh, “I recognized it because I was feeling that pain, too.” Bud Welch is now an international advocate for the abolition of the death penalty. “About a year before the execution I found it in my heart to forgive Tim McVeigh. It was a release for me rather than for him.” 

Bud Welch is not alone in the realization that the execution of a murderer does little to assuage the grief of a survivor. Six months after the bombing a poll taken in Oklahoma City of victims’ families and survivors showed that 85% wanted the death penalty for Tim McVeigh. Six years later that figure had dropped to nearly half, and now most of those who supported his execution have come to believe it was a mistake. In other words, they didn’t feel any better after Tim McVeigh was taken from his cell and killed.

The jury is in: the death penalty is racist, classist, ineffective, cruel, unusual, expensive, unjust, incurably flawed, and representative of our most base and ignorant habits. It is an egregious violation of human rights. In other words, everything is wrong with it. It must end, and soon.

References

American Civil Liberties Union (ACLU). (2009, May 5). Report: Mental Illness and the Death Penalty. ACLU.org. Retrieved April 15, 2022, from https://www.aclu.org/report/report-mental-illness-and-death-penalty

Death Penalty Information Center. (2015, October 30). FBI Crime Report Shows Murder Rates Remain Higher in Death Penalty States. Retrieved April 15, 2022, from https://deathpenaltyinfo.org/news/studies-fbi-crime-report-shows-murder-rates-remain-higher-in-death-penalty-states

Death Penalty Information Center. (n.d.). Mentally Ill Prisoners Who Were Executed. Retrieved April 15, 2022, from https://deathpenaltyinfo.org/policy-issues/mental-illness/mentally-ill-prisoners-who-were-executed

Death Penalty Information Center. (2021, December 18). Special Report: The Innocence Epidemic. Retrieved April 15, 2022, from https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-special-reports/dpic-special-report-the-innocence-epidemic

Equal Justice Initiative. (n.d.). Death Penalty. EJI.org. Retrieved April 15, 2022, from https://eji.org/issues/death-penalty

The Forgiveness Project. (n.d.). Bud Welch. Retrieved April 15, 2022, from https://www.theforgivenessproject.com/stories-library/bud-welch

Harvard Law School – Charles Hamilton Houston Institute for Race & Justice. (2015, December 23). Death Penalty 2015: Lowest Number of Executions in 25 Years, But Marked by Disability and Impairment. Today.law.harvard.edu. Retrieved April 15, 2022, from https://today.law.harvard.edu/death-penalty-2015-lowest-number-of-executions-in-25-years-but-marked-by-disability-and-impairment

Innocence Project. (2019, September 24). Georgia Executes Troy Davis Despite Claims of Innocence. Innocenceproject.org. Retrieved April 14, 2022, from https://innocenceproject.org/remembering-troy-davis

Koosed, M. (2021, October 5). Why It’s Time to Declare the Death Penalty Dead. Retrieved April 15, 2022, from https://www.cleveland.com/opinion/2021/10/why-its-time-to-declare-the-death-penalty-dead-margery-m-koosed.html

McFarland, T. (2016). The Death Penalty vs. Life Incarceration: a Financial Analysis. Scholarlycommons.susqu.edu. Retrieved April 15, 2022, from https://scholarlycommons.susqu.edu/cgi/viewcontent.cgi?article=1026&context=supr

National Registry of Exonerations. (2017, March 7). Race and Wrongful Convictions in the United States. Law.umich.edu. Retrieved April 15, 2022, from https://www.law.umich.edu/special/exoneration/Pages/Race-and-Wrongful-Convictions.aspx

Oklahoma Coalition to Abolish the Death Penalty. (2013). Some Facts About the Death Penalty. Retrieved April 15, 2022, from https://okcadp.org/public-education/educational-resources/facts-about-the-death-penalty

Pilkington, E. (2015, March 17). Missouri Executes Cecil Clayton, State’s Oldest Death-Row Inmate. Theguardian.com. Retrieved April 15, 2022, from https://www.theguardian.com/world/2015/mar/18/missouri-executes-cecil-clayton-supreme-court

Rahman, I. (2021, May 11). Ending the Death Penalty Is a Step Toward Racial Justice. Vera.org. Retrieved April 15, 2022, from https://www.vera.org/news/ending-the-death-penalty-is-a-step-toward-racial-justice

Rupp, A. (2003). Death Penalty Prosecutorial Charging Decisions and County Budgetary Restrictions: Is the Death Penalty Arbitrarily Applied Based on County Funding? Ir.lawnet.fordham.edu. Retrieved April 15, 2022, from https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3514&context=flr

Saxena, A. (2020, December 19). Outdated and Inhumane: Why the Death Penalty Needs to Be Abolished. Aninjusticemag.com. Retrieved April 15, 2022, from https://aninjusticemag.com/outdated-and-inhumane-why-the-death-penalty-needs-to-be-abolished-24c4941d5914

United Nations. (1948, December 10). Universal Declaration of Human Rights. UN.org. Retrieved April 15, 2022, from https://www.un.org/en/about-us/universal-declaration-of-human-rights

This article is part of a series in AFGJ’s Human Rights in the U.S. 2022 Report

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