The Power To Kill
Governor Ron Desantis has signed Senate Bill (SB) 450 reforming death penalty statutes in Florida. Most notable of these reforms is the reduction in the number of jurors needed to impose the death penalty. Rather than a unanimous decision, the requirement is now a decision from eight of twelve jurors.
Governor Desantis claims the bill is a response to “another tragic failure of the justice system” referencing the jury decision which did not impose the death penalty on Parkland Shooter, Nikolas Cruz. Statements from some families of the victim’s of the Parkland shooter explain the bill as work towards “victim rights.” Representative Bernie Jacques sees the bill as preventing “a small handful of activist jurors to derail the full administration of justice.”
This comes after former President Donald Trump rushed several executions at the end of his presidency in 2021, breaking a 130 year precedent, executing 13 individuals within six months. His stance on capital punishment being one that has seemingly not changed since he advocated for the Central Park Five to receive the death penalty. (And doubling down years after the group of Black and Latino men have been found innocent)
This continues a discussion of one of the most important questions of the criminal justice system: What Is Justice and Who Is Getting It?
The United States has evolved capital punishment into a genre of humane homicide; deemed free of cruel and unusual punishment in the name of justice. In considering the merits of modern-day capital punishment, who is defining justice and who is gaining justice should be questioned.
Capital punishment describes the process of offenders convicted of serious (capital) crimes, defined by statutes and prescribed by state legislatures or Congress, being sentenced to death and the carrying out of that sentence).
The definition of justice is not as straight forward. The most commonly understood meaning of justice is “the maintenance or administration of what is just” and “the quality of being just, impartial, or fair.” It is the determination of what is “just” or “fair” which causes confusion, disagreement, and the questioning of one’s morals surrounding the sense of justice in the death penalty. It is the absence of personal justice and the emphasis on legal procedures which cloud a clear definition.
Naturally people prefer legal systems that closely demonstrate their beliefs and values and often legal systems are byproducts of a particular culture. John Rawls argued justice as a degree to which a well-ordered society and a just citizen are to both be measured.
For individuals harmed by the accused, either victims or survivors, to be relieved from the judicial process, obtain vindication for the victim, reduce fear of the accused, and dispel chronic grief all factor into considerations for achieving justice via execution. This “judicial closure” offers survivors a sense of personal control after non-consensually being linked to the accused and enduring the emotional hardship of the crime. From 41 interviews of survivors who witnessed the execution, post-traumatic stress disorder (PTSD) symptoms decreased from 44% to 19.5% after the execution with no regret of attending. In an analysis of 138 post-execution press stories from 1999 to 2002, survivor interviews showed most commonly a theme of relief expressed in what many describe as a “conclusion” or “end point in a long painful process” (p. 515). 52 interviews conducted with survivors from Texas and Virginia indicated 58% experienced relief or closure as a result of the execution. Relief and closure are assuredly positive for survivors, though cannot be exchanged for or equated with forgiveness, a reduction of grief, or encompass all definitions of justice. In the same 52 interviews, forgiveness occurred in 15% of the individuals and virtually all survivors communicated the execution “had little or no effect on their grief” (p. 247). There is more to be gained through restorative processes rather than retributive, a sentiment shared by scholars as well as survivors. 60% of violent crime victims prefer a justice system focused more on rehabilitation than punishment. Restorative processes offer survivors a voice in resolving and/or concluding the process instead of simply focusing on legal procedures.
Nancy Mueller and Sarah Powell were murdered by Daniel Lewis Lee. The victim’s family repeatedly spoke out against the execution of Lee and afterwards discussed being retraumatized by the government’s conduct. Mueller’s father requested clemency be granted for Lee in 2019, Mueller’s mother and cousin requested the execution be postponed due to heightened COVID-19 risks yet the federal government moved forward with the execution as planned. Mueller and Powell’s family were denied the justice desired or arguably needed to properly move forward from the emotional toll of these events.
The family of Berthena Bryant requested Texas Governor Greg Abbott commute Quintin Jones’ death sentence to life in prison. Jones killed Bryant in 1999 but has since shown great remorse and rehabilitation according to Bryant’s family. The Texas Board of Pardons and Paroles denied granting Jones clemency. The United States Federal Government and various criminal justice systems define justice for its citizens.
Rachel Sutphin whose father, William Morva was murdered in 2006 explained the way the Virginia death penalty failed Morva’s family in a letter to legislators. Sutphin’s frustrations are with the resources of the commonwealth having been devoted to the trial and appeals of her father’s accused murder rather than support for Morva’s family. Sutphin stressed the re-traumatization that occurred over those 10 years while forced to relive such an emotionally taxing event over and over.
Persons Accused
The United States criminal justice system persists on two perspectives of fairness (i.e., crime control and due process) that require a balance to maintain a just society. The crime control mentality prioritizes efficiency over fairness and prioritizes individuals considered “victims of crime.” This mentality can be compared to an assembly line; an appropriately resourced, smoothly operating system with little direction or supervision from outsiders. In the context of the death penalty, the assembly line represents a slaughterhouse; the outcome is of the most importance as most people do not see what occurs inside the factory (i.e., court & prison). From a due process perspective, the rights of all citizens, accused and “victim” are of importance and emphasis is placed on the presumption of innocence. This perspective compares to an obstacle course as the accused party is very often subjected to scrutiny from outsiders and high degrees of standards.
The metaphorical obstacle course confronted by individuals potentially facing death sentences is one brimming with racism and classism. In Washington State, jurors were 3 times more likely to recommend a death sentence when the defendant was a Black person of color versus a white person with a similar case. An extensive study in North Carolina showed the odds of receiving a death sentence increased 3.5 times in defendants with white victims. A study from 2011 reported the odds of being given a death sentence were 97% higher for individuals in Louisiana whose victim was white compared to individuals whose victim was a Black person of color. In a study on unconscious racial bias in judges, the implicit biases held by judges impacted decision making when determining sentences. When aware of how bias has potential to influence sentencing decisions and sometimes to avoid the appearance of bias in a decision, judges will compensate for implicit bias. Though the United States Supreme Court ruled it necessary to uphold the Sixth Amendment by requiring juries fact find a defendant’s eligibility for the death penalty rather than a judge, there is importance in noting someone appointed to decide and uphold law can and often will contaminate the justice system with racial discrimination.
Race, gender, and class are the three most powerful organizing principles used for social construction within cultures, almost always resulting in structured inequality. Arrest, conviction, and incarceration are more likely to occur to those of lower economic status compared to more affluent individuals. The intersectionality that can and often does occur between racism and classism cannot be ignored. Just under a quarter of residents in New Orleans, Louisiana live below the poverty line and the median income among Black residents is 57% lower than the median income of white residents. Additionally, in New Orleans, a city where 59% of the population are Black people of color, eight out of 10 people in jail are Black. In 2015, government agencies collected $4.5 million by way of bail, fines, and fees and an additional $4.7 million moved between residents and for-profit bail bond agents. The financial draining of historically under-resourced communities in New Orleans is only one example from a massive country whose criminal justice system is overrun with the criminalization of poverty. The majority of defendants in capital cases cannot afford to pay a lawyer for representation at trial, a right in the American judicial system that is essential for obtaining anything adjacent to “fair.” Inadequate representation increases the chances of a defendant being found guilty and often courts uphold convictions and death sentences due to the low expectations for public defenders. This can also result in lengthy appeals processes requiring more money for representation.
The lengthy appeals process frequently contributes to an extended period of time between initial sentencing and execution. As of 2021, the average time between sentencing and execution is approximately 19 years. This time does less to encourage the accused to take accountability and more to think of ways to avoid execution. This does not seem completely unfair considering since 1973, at least 185 people, an average of 3.94 per year on death row have been exonerated due to evidence of innocence. From those exonerations 100 were Black people of color, 67 white, 16 Latino, and 3 “other” or unknown.
Richard Glossip was convicted in 1998 for murder for allegedly ordering his employee Justin Sneed to kill their boss Barry Van Treese. Convicted on Sneed’s word alone and maintaining his innocence, Glossip has faced execution three times with stays in place for various reasons including other botched injections. Glossip will now face execution again due to a 2-2 tie vote from the parole board despite the Oklahoma Attorney General advocating on Glossip’s behalf. Taking in the details of Glossip’s case and the injustices which have occurred within Oklahoma’s criminal justice system, it is difficult to understand how anyone would support capital punishment for anyone.
The State
The state plays a retributive role in capital punishment, while performing for the public a flex of power disguised as humane justice. The Washington State Supreme court presents this example in having ruled the state’s capital punishment law unconstitutional four separate times. The decision on October 11, 2018, stating the “death penalty is invalid because it is imposed in an arbitrary and racially biased manner,” and is in violation of Article 1, Section 14 of the Washington State constitution because it serves no legitimate penological goal. While states like Washington have realized the death penalty unconstitutional, many states and the federal government continue seeking retribution and effectively dodging responsibility for those actions.
Our current society avoids responsibility for punishment of those convicted and incarcerated - “Corrections officers point to judges, while judges point to legislators, and legislators to corrections.” Where to place anger and responsibility seem to be “everywhere elsewhere,” meaning nowhere. This sentiment is clearly written into the Constitution of the United States, states laws, and shared by justices of the United States Supreme Court. In the case of Gregg v. Georgia (1976) which upheld the constitutionality of the death penalty written plainly. The majority decision by the court describes the interpretation of the Eighth Amendment as being “flexible and dynamic” to accommodate the evolution of standards in a maturing society regarding decency of punishment.
This approach to laws based on social changes in human society is referred to as sociological jurisprudence. According to sociological jurisprudence, changing social conditions will alter laws regardless of who is in power. Note that “evolving” is not synonymous with “improving” and as America “matures” it becomes infantilized. This is evident in the medical approach now used for executions. The primary method of execution in the United States is lethal injection, used by the majority of states which still permit capital punishment. In 2021 South Carolina became the only state where electrocution is the primary method of execution and in addition, secondary methods of firing squad and lethal injection which are authorized by statute. The lethal injection method has resulted in instances of botched injections and questionable practices as one of the drugs included in the injection was discontinued. It is currently unclear whether the drug used to replace the previous anesthetic in the lethal injection “cocktail” renders the individual unconscious or simply masks the person’s pain and suffering. Seemingly clear that medical executions are intended more for performative purposes than to avoid “cruel and unusual” circumstances. Allowing the state with the power to impose death exacerbates its sense of grandeur and delusions of sufficiency.
The arbitrary nature of the death penalty can also be found in the constant necessity of case law and the ability of individual states to dictate individual definitions. In 2002 the United States Supreme Court ruled it unconstitutional to execute individuals with intellectual disabilities after at least 44 people with an intellectual disability had already been executed. Roper v. Simmons (2005) banned the death penalty for juvenile offenders though not until after 366 people who were children during the time the accused offense took place were executed.
The Public
The state would have the public believe capital punishment serves as a deterrence to future homicide while opponents of the death penalty would provide contrasting empirical evidence. In a report titled “Deterrence and the Death Penalty” the National Research Council warns that research claiming to demonstrate evidence of a deterrent effect (or not) on homicide is “fundamentally flawed” and should not be considered in policy decisions regarding capital punishment. Historically when comparing murder rates in states with and without the death penalty there has been little, if any, correlation seen between low murder rates and states with the death penalty. Between 2000-2010 states with the death penalty had murder rates 25-46% higher than those without.
When the media frequently reports on crime without explaining causes or patterns of crimes and places an emphasis on extreme or particularity violent acts, a distorted view of crime including an overestimation of violent crime can occur, leading to an overall fear of crime and victimization. While the information being reported may not be inaccurate or be misleading, it can still play to the distorted view that many Americans have related to crime rates and as mentioned above can increase an overall fear of crime and victimization. This fear fuels the public’s need for protection, in the case of capital punishment, the security of the knowledge that an individual accused of homicide cannot commit such an act again. Regardless of whether security from future victimization is being obtained via capital punishment, a sense of security is felt.
Capital crimes are committed most commonly when an individual is experiencing great emotional stress or is under the influence of drugs and alcohol. Additionally, many capital crimes are committed by individuals who suffer from mental illness. It is estimated that of the individuals on death row at least 20% have a serious mental illness. With this information, prevention of future capital crimes might occur by making addiction services and mental healthcare more accessible. These facts imply that by removing the social stigma regarding addiction and mental health, increasing the amount of available resources, and making them free or affordable could decrease rates of capital crime.
The public may also assume there is less cost to taxpayers by imposing capital punishment rather than imprisoning an individual for life. This is very rarely the case when “hidden” costs of the death penalty are considered. There are significant costs associated with the lengthy and complex legal proceedings, taking years and sometimes decades, involved in capital cases. Additionally, those incarcerated on death row are housed separately from others requiring additional costs for extra security measures. Actual costs vary depending on state - California (2008) estimated a $137.7 million annual cost for capital cases including the trial, appeal, habeas procedures and confinement compared to a $11.5 million estimated annual cost for life without parole instead of capital punishment. In Indiana, the average cost of a death penalty case involved in a jury trial is $789,581. Splitting the responsibility between the state ($420,234) and county ($369,347). Cases resulting in a sentence of life with parole (with jury trial) cost an average of $185,422 - the state responsible for $151,890 and the county for $33,532.
The retributive disposition of capital punishment seems to benefit the state and bring short-term relief to survivors with little consideration for the greater happiness of society. Victim services are underfunded and almost non-existent while exorbitant amounts of money are spent on long trials and several years of appeals. Considerations of how racism and classism appear ignored by several state governments and the federal government leave a disproportionate amount of Black people of color continually impacted. Sociological jurisprudence has left the door open for the state to “interpret” and write new case law as seen fit. As of yet the effectiveness of capital punishment in deterring future homicides cannot accurately be determined but evidence-based preventative measures are not being taken. Access to addiction services and mental health resources are scarce and inaccessible to many. The state’s actions which bring death in the name of a controversial definition of justice are performative and harmful.
We shouldn’t advocate for life in prison as an alternative for the death penalty but instead measures for preventing violence and reducing incarceration. That begins with abolishing state-sanctioned violence.