The Death Penalty: Conceptual And Empirical Issues

• Author: Jason Borenstein
• Pages: 377-401

Jason Borenstein, Ph.D. Jason Borenstein is a Visiting Assistant Professor in the School of Public Policy at Georgia Tech. Dr. Borenstein is also the founder and editor of the Journal of Philosophy, Science & Law, an interdisciplinary scholarly journal.

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Introduction

The recent and momentous decision by the former governor of Illinois George Ryan to commute the sentences of all the death row inmates in his state warrants an examination of death penalty proceedings.¹

The frequency at which convicted death row inmates have been exonerated across the United States suggests that the death penalty proceedings are not sufficiently reliable. In this article, I will explore conceptual and practical problems associated with the death penalty. Although I do not intend to prove that the death penalty must be categorically and definitively abolished, I do argue that there is sufficient available evidence to show that the death penalty should be halted before additional capital sentences are carried out.

I A Sketch of the Philosophical Basis for the Death Penalty

One of the primary philosophical justifications for the death penalty is grounded in the retributive theory of punishment. Immanuel Kant famously articulated the notion that the punishment of death is justified because it "pays back" a murderer for the immoral act that he has performed. In accordance with our duty to show respect for the murderer as a rational agent, Kant argues that the life of the murderer must be taken. By committing a murder, the murderer has put forward a maxim that taking a human life is permissible. Since the murderer has shown that he does not have sufficient regard for human life, he deserves to lose his own life.

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Historically, retributive theory typically amounted to "an eye for an eye" punishment. The view, often labeled 'equality retributivism,' suggests that the appropriate way to pay back a criminal is by enacting a punishment that is similar to the criminal act performed. Yet this view has been repeatedly and roundly criticized for being too barbaric. If followed literally, rapists would experience the suffering caused by being raped. Individuals who commit assault would experience the same type of pain that they have inflicted on others. In sum, the punishment recommendations derived from equality retributivism have caused most people to abandon the view. Further, it is unclear how we should punish criminals for non-physical crimes like embezzlement and copyright infringement since there is no clear, precise way of paying back criminals for such crimes.

After the failings of equality retributivism had been recognized, a modified version of the theory called 'proportional retributivism' emerged. This more defensible formulation of retributive theory holds that punishments should be proportional to the crimes committed. With regard to the most severe and heinous crimes such as first degree murder, supporters of this view typically suggest that the appropriate and proportional punishment in these types of cases is capital punishment.

Proportional retributivism has been vigorously defended as a suitable justification for the death penalty. Yet, as author Stephen Nathan-son rightly points out, there is a level of arbitrariness related to the selection of any particular type of punishment assigned to a particular crime.² According to Nathanson, proportional retributivism "does not yield any specific recommendations regarding punishment."³ In essence, proportional retributivism only requires that there is a hierarchical scale of punishments where the more severe the crime is the more severe punishment attached to it becomes. Thus, the theory demands that the most severe crime receives the most severe punishment but, in accordance with the theory, it does not require that the death penalty is designated as the most severe punishment. It is perfectly consistent with proportional retributivism to select life in prison as the most severe punishment for the most severe crime.

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In order to address this type of problem, retributivist theory could potentially be supplemented with the justification that the death penalty is necessary because it deters future crime.⁴ Supporters of the death penalty typically assert that it deters crime more effectively than life in prison. Yet studies evaluating whether the practice achieves its desired deterrent effect are at best inconclusive.⁵ On a related note, according to a study by the New York Times, ten of the twelve states without the death penalty have homicide rates below the national average.⁶ Although there are other variables to take into account, lower crime rates in non-death penalty states do provide some evidence that the death penalty does not achieve the goal of being the most effective deterrent.

If it could be established that the death penalty deters crime, the argument against the death penalty still remains that since it is an irreversible mode of punishment, mistakes cannot be remedied. Thus, if an innocent person was executed, the levied punishment cannot be changed and there is no measure for correcting the harm done. Although one could argue that other types of punishments exact a profound cost on wrongfully convicted individuals, such as taking away years of their lives that cannot be returned to them, a wrongly executed person cannot be compensated in any fashion. Supporters of the death penalty typically respond that there is no reason to believe that innocent people have been or will be executed in our system. They argue that there are sufficient safeguards in place, including the lengthy appeals process typically associated with capital cases, preventing the execution of an innocent person.

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Even though disputes rage on concerning whether any innocent person has been executed since 1976⁷ it seems to be a product of fortunate timing that our system has not made a profound mistake. Randall Dale Adams, for example, was convicted of killing a Dallas police officer in 1976. The Supreme Court stayed the execution of Adams three days before he was scheduled to die. The charges against Adams were eventually dropped in 1989 and he was subsequently set free.⁸ In a similar turn of events, Anthony Porter was convicted of a double homicide and sent to death row before he was exonerated two days before his scheduled execution.⁹ Porter's freedom was largely the result of an investigation conducted by journalism students from Northwestern University. Further, although it is believed by some that David Wayne Spence was guilty of the crime for which he was executed, defense attorneys and law enforcement officials alike have voiced their doubts about the evidence used to convict him.¹⁰

In one noteworthy situation, law enforcement officials in Georgia had sufficient reason to re-examine evidence after the state had already executed a convicted criminal. DNA tests were authorized by a Houston court in the case of Ellis Wayne Felker to determine whether he was in fact guilty of a crime for which he had received the death penalty.¹¹ The results of the ordered tests were inconclusive, and it is believed thatPage 381he was guilty of the committed crime.¹² Doubts also emerged in the case of Roger Keith Coleman, which caused several newspapers to request DNA tests a few years after he had already been executed.¹³ Even if Felker and Coleman were actually guilty of the crimes for which they were convicted, believing that further investigation is warranted after an execution has already been carried out is deeply troubling. It illustrates a profound lack of confidence in death penalty proceedings, a concern that not only troubles defense attorneys but one that is shared by law enforcement officials and judges alike.

Supporters of the death penalty reply to this concern that adjustments can be made to death penalty proceedings to minimize the chances of an innocent person being convicted. For example, Igor Primoratz argues that problems afflicting capital cases are not sufficient to show that the death penalty is in itself conceptually flawed.¹⁴ Rather, he suggests it indicates that the "existing procedures for trying capital cases" need modification and that we should do what we can to eliminate errors.¹⁵ Primoratz confidently maintains that in at least some capital cases, there are sufficient assurances to prove beyond a shadow of a doubt that the convicted individual is guilty. Hence, Primoratz asks "Why not retain the death penalty at least for them?"¹⁶ Thinking back to the cases of Ted Bundy and Timothy McVeigh, for example, we feel assured that justice has been done. Assuming that the level of certainty he hopes for can be achieved in death penalty proceedings, Primoratz is correct to suggest that additional argument would be required to dismiss the death penalty as a justifiable form of punishment.

In response, I argue that we have already had sufficient assurances in capital cases to convict alleged criminals, but we have gotten it wrong. Courts have had sufficient assurances to convict and place alleged criminals on death row for extended periods of time and yet have been mistaken. Since 1977 when the death penalty was reinstated in Illinois, approximately thirteen inmates on Illinois' death row have been freed while twelve have been executed.¹⁷ The events occurring in Illinois are indicative of a pervasive problem that stems across the coun-Page 382try.¹⁸ Between 1973 and 2002, over 100 death row inmates have been freed in the United States.¹⁹ Are we supposed to assume...