After a sixteen-year hiatus, the Trump Administration announced that the Federal government will resume executions in late 2019 and early 2020, reinvigorating the public and political discourse around capital punishment. Support for the decision is mixed, but a few things are clear.
First, in the democratized world, the death penalty is as American as apple pie. Modern trends regarding the practice “are unmistakably toward abolition,” as nearly three-fourths of the world has abolished capital punishment.
Even within the United States, the practice is far from ubiquitous. As of August 2019, twenty-five states have an active death penalty law, twenty-one have abolished the practice, and four have a moratorium (capital punishment is currently suspended).
Furthermore, among death penalty states, executions are not evenly distributed. Since the turn of the twenty-first century, Texas alone accounts for 41% of executions in the United States; Texas and Oklahoma together have carried out more than half of all executions. This trend mirrors those dating back to 1976, the beginning of the modern death penalty era.
Also clear is that the trend in the United States for more than two decades has been against capital punishment. In that time period, no states have added the death penalty, while nine states have abolished it and four others have imposed a moratorium.
Public opinion mirrors the policy landscape. In a February 1999 Gallup Poll, 71% of respondents answered affirmatively when asked, “Are you in favor of the death penalty for a person convicted of murder?” In October 2018, support was down to 56%, while 41% said they were “Not in favor.”
The Trump Administration’s recent decision thus goes against a decades-long trend, and seems a good opportunity to revisit some of the key aspects of the debate over capital punishment.
Perhaps the loudest arguments about the death penalty deal with its morality or lack thereof. Such perspectives are common. According to a 2014 Gallup Poll, the most common reason given for why supporters favor the death penalty is “An eye for an eye/They took a life/Fits the crime.” Other moral arguments are also high on the list: “They deserve it” or “Fair punishment” or “Serve justice.”
This is equally true on the other side. The same poll showed that the most common reasons for opposition was that it was “Wrong to take a life” and “Punishment should be left to God/religious belief.”
Moral arguments may be among the most common and loudest. They resonate with people and can drive opinions. However, they are the weakest in terms of empirical debate. We cannot “test” or “measure” morals; there is no objective truth, no clear right or wrong.
So, what are the measurable aspects of the death penalty debate, and to what conclusions do they lead?
Effects on Crime Rates
A common issue in the death penalty debate is whether or not it deters other would-be offenders. That is, others who would otherwise consider committing a murder will be deterred because of the possibility of a death sentence. The flipside of deterrence is brutalization, or the idea that capital punishment actually increases violence by devaluing human life.
For decades, researchers have examined the relationship between capital punishment and murder rates, and the only reasonable conclusion is that the two are likely not related.
Death penalty states, on average, have higher murder rates than non-death-penalty states. Furthermore, the trends across states have been similar, suggesting that the death penalty may have little to do with changes in murder rates.
Similarly, international data suggest that many countries experienced a decline in murder rates following abolition of the death penalty.
A handful of studies have found significant results on both sides – either in favor of deterrence or brutalization – but such studies are heavily flawed in their methods and conclusions. Such results have been found to be finicky, heavily dependent on how data are analyzed and statistical models are specified.
Thus, the only reasonable conclusion is that the death penalty has little discernible effect on murder rates.
Capital punishment, like virtually every element of the criminal legal system, has clear racial undertones. Since 2000, just over one-third of those executed were black.
Perhaps more telling, though, is to examine the race of the victims in the murder cases in which defendants were ultimately executed. More than 70% of executions were in murder cases involving white victims, despite the fact that whites are not more likely than blacks to be victims of murder.
If the death penalty truly is reserved for the “worst of the worst,” these outcomes suggest that the worst cases are those in which a white person is killed. Put another way, this suggests that we value a white life is more than a black life.
This is no surprise, given the racial roots of capital punishment in the U.S. As reported by the Death Penalty Information Center, when the death penalty was allowed for rape in the early twentieth century, “89% of the executions involved black defendants, most for the rape of a white woman.”
These racial tendrils of the death penalty, remnants from the era when lynching was a prominent practice, are seen even today.
A key argument made by supporters of capital punishment is that it saves the money we’d otherwise spend on incarceration. However, as practiced today, the death penalty is, unquestionably, much more expensive than incarceration.
For example, an analysis of cases in Oklahoma estimated that the each case in which the death penalty is sought costs approximately $110,000 more than a similar case in which the death penalty is not sought.
Even stronger findings appear elsewhere. A Nebraska study found that each death penalty case costs approximately $1.5 million more. The Legislative Finance Committee in New Mexico estimated that bringing the death penalty back might cost as much as $7.2 million in the first three years. And studies in other states have found that the death penalty costs several times more than cases ending in long-term imprisonment.
The extravagant costs of capital punishment come from every phase of the criminal legal process—pre-trial processes take longer and cost more; defense and prosecution costs are higher; imprisonment on death row is more expensive; and appeals are longer and cost more.
Some may propose a simple, albeit crude, solution—speed up executions once someone is convicted. While the front-end of cases would still be expensive, the argument goes, much would be saved by reducing time-to-execution. After all, the average time between receiving a death sentence and execution is somewhere around fifteen years.
Reducing this time as a cost-saving means sounds intuitive, but could potentially lead to much more grave problems.
Innocence and the Death Penalty
Why not speed up the time to execution, which hovers around fifteen years?
As of this writing, since 1989, 123 people in the United States have been exonerated based on their innocence after being sentenced to death. On average, it took 15.2 years before exoneration. If we accelerate the rate at which executions are carried out, it undoubtedly means more innocents will be put to death.
The criminal legal system is perfect neither in its design nor implementation. As I’ve written about extensively, wrongful convictions happen. Innocent people are erroneously arrested, convicted, imprisoned, and in all likelihood, executed.
The risk of such an error should strike concerns in everyone. Not only would it mean the government erroneously executes an innocent citizen, but a wrongful convictions usually means a wrongful acquittal—the real guilty party, the true perpetrator, is the only person who benefits, as they remain free to continue committing crimes.
The Death Penalty Today
The Trump Administration’s decision to resume executions, while supported by some members of the public, has drawn ire elsewhere. There are myriad legal issues, questions around the method of lethal injection, critiques from religious groups.
Importantly, the critiques are coming not only from liberals, presumed to be the group “against” the death penalty, but from conservatives as well, who are concerned not only with capital punishment’s implications for the value of life, but for its fiscal irresponsibility and concerns over the increased power of the government.
Despite the fact that the death penalty might satiate some primal urge to do unto others as they have done, it is an irresponsible practice according to the facts.
This is not to say that anyone’s moral inclinations are wrong. If person X believes in the death penalty out of ethical or moral obligation, that is their prerogative, just as it is for person Y to believe taking a life is wrong no matter the situation.
Yet in terms of a debate that hinges on things we can measure and evaluate, there are not two sides to the death penalty debate. The facts point to the continued decline in its use as the logical path forward.