Learning About the Death Penalty
Kenneth Mentor J.D., Ph.D.
Knowledge is Power
Although empirical research supports the goals of those trying to abolish capital punishment, attempts to utilize this research in efforts to end the death penalty are typically met with resistance. This site has been designed to empower those opposed to the death penalty with knowledge. This site has also been designed as a learning opportunity for those who want to base their opinions on fact, as well as opinion and emotion.
The battle to translate death penalty research into policy change is taking place on several fronts. In addition to providing links to fact-based arguments, this site provides information about efforts to sway courts, legislatures, and public opinion. This site is an example of the effort to sway opinion. We are opposed to the death penalty and believe that those who take the time to understand the issues will join us in speaking out to end the death penalty.
The following sections are arranged around several key questions. Following brief introductions, links to a variety of sources are included. You are encouraged to look through these links in the effort to develop informed, fact-based, opinions about the death penalty. You are further encouraged to continuously test your own opinions against those of others.
Is the death penalty a deterrent?
No - But lets look more closely at this question. Like any social science question, the answer may be "it depends."
We often refer to two types of deterrence. "General" deterrence refers to the educational effect of knowing that punishment may result if a crime is committed. Deterrence theorists suggest that to serve as a deterrent, punishment must be "swift, certain, and severe," or at least perceived as such. While capital punishment is severe, the other requirements of deterrence are typically not active. Empirical research indicates that capital punishment does not have a general deterrent effect. "Specific" deterrence refers to the impact on the person who is caught and convicted of a crime. The individual is punished in ways that reduce the chance that he or she will commit crime in the future. While the death penalty has a very significant impact on the individual's ability to commit future crimes, life in prison without parole accomplishes the same goal.
The following sites provide information that will help you develop your own answer to this question:
Have innocent people been executed?
Yes - Error is much more common than most people imagine. While it is difficult to accurately estimate the number of innocent people who have been executed, there is no doubt that innocent people have been executed for crimes they did not commit. We also know that 111 people (and counting) have been exonerated from death row since 1973. The "Broken System" research (linked below) shows how often mistakes occur and how serious the problem is: 68% of all death verdicts imposed and fully reviewed during the 1973-1995 study period were reversed by courts due to serious errors. Because human justice remains fallible, the risk of executing the innocent will never be eliminated.
Do executions save money?
No - First of all, is this really an issue of financial cost? That said, we know that executions are very expensive and that the costs exceed those incurred if life in prison without parole were the sentence. These costs can place extremely high strains on the budgets of communities where capital trials occur, forcing cost reductions in other areas.
Is the death penalty applied consistently?
No - The arbitrary application of the sentence of death has been one of the most consistently demonstrated problems.
Is the death penalty racially biased?
Yes - This fact is firmly rooted in research. Over 80% of people executed since 1976 were convicted of killing white victims, although people of color make up more than half of all homicide victims in the United States.
Is the death penalty class biased?
A defendant who can afford his or her own attorney is much less likely to be sentenced to die. Ninety-five percent of all people sentenced to death could not afford their own attorney.
What do the courts say about capital punishment?
The United States Supreme Court has been reluctant to consider empirical evidence regarding capital punishment. While disparate impact was the basis for the Court's decision in Furman v. Georgia, 408 U.S. 238 (1972), the Court's ruling in Gregg v. Georgia, 428 U.S. 153 (1976) brought the death penalty back, holding that discretion could be limited through a properly written statute. Although Furman resulted in emptying death rows across the country, the period of abolition was less that 4 years. The disparate impact argument was raised in subsequent cases, Most notably in McClesky v. Kemp, but the Supreme Court remained reluctant to consider racial bias as the basis for abolishing the death penalty. While acknowledging racial bias as a statistical reality, the court was not going to strike down death penalty laws without a clear demonstration that the state contributed to the disparate impact through the wording of the statute.
Links to key cases and other commentary and facts:
Quotes from U.S. Supreme Court Justices:
Justice Blackmun: From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. (Callins v. Collins, 510 U.S. 1141 (1994))
Justice Stewart: "These death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual" -- they are capriciously, freakishly, and wantonly imposed. (Furman v. Georgia)
Justice Powell: "I have come to think that capital punishment should be abolished ... [because] it serves no useful purpose." (Powell's biography)
Justice Brennan: "It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined." (1987)
Justice Marshall: "When in Gregg v. Georgia the Supreme Court gave its seal of approval to capital punishment, this endorsement was premised on the promise that capital punishment would be administered with fairness and justice. Instead, the promise has become a cruel and empty mockery. If not remedied, the scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it continue." (1990)
Justice O'Connor: “ If statistics are any indication, the system may well be allowing some innocent defendants to he executed... perhaps it’s time to look at minimum standards for appointed counsel in death cases arid adequate compensation for appointed counsel when they are used.” (AP, 7/2/01)
Justice Ginsburg: “ People who are well represented at trial do not get the death penalty. I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay application in which the defendant was well represented at trial.” (AP, 4/10/01)
How does the public feel about the death penalty?
Looking at only one number, it might be argued that much of the public is immune to fact-based arguments offered in opposition to capital punishment. The May 2001 Gallup Poll found public support for the death penalty to be around 65%. While this may seem like broad support, and an indication of the failure of educational efforts, it is important to note that this percentage is the lowest Gallup has found since 1978.
Support for the suggestion that the public is beginning to consider the issues associated with the death penalty is found when we examine other poll results. For example, when given a choice between the death penalty and a life sentence without possibility of parole, support for the death penalty dropped to 52% in the 2001 Gallup Poll. Other evidence of the public's willingness to consider the issues is demonstrated by an ABC News/Washington Post Poll indicating that 68% either strongly agreed or somewhat agreed with the statement, "The death penalty is unfair because sometimes an innocent person is executed."
Similarly, a national poll conducted by Peter D. Hart Research Associates found that when respondents were offered the sentencing alternative of life imprisonment with restitution to the victims' families, support for the death penalty fell to 38%, with 48% supporting the alternative. This poll also found that 72% of the respondents favored suspension of the death penalty until questions about its fairness can be studied. These figures are found in the Polling Data Results section of the Capital Defense Network site. Visit the Polling Report for updated information.
What can I do to help end capital punishment?
Learn about the issues. If you have visited just a few of the sites above, you have taken a big step in the right direction. Opportunities to learn about alternatives are not presented to active thinkers. The media and government have the power to "push" news and views. Those who seek alternative views will not typically find these views unless they take the time to find these views. It isn't hard to do, but don't expect them to be dropped on your doorstep each morning.
To learn more, check out the Educational Curriculum on the Death Penalty. This is a great site and includes pages for students and teachers. Justice Learning is another good site for learning about the death penalty. The New York Times Learning Network also has several lessons related to the Death Penalty. While these lessons are designed for younger learners, they provide learning opportunities for everyone. These lessons are listed in the "crimes" section and can also be found by searching the site for lessons related to the death penalty.
AmnestyUSA provides a Q&A page that covers a range of frequently asked question. The Death Penalty Information Center also provides factual information on a regularly updated "fact sheet." Finally, yes there is a test. Take the death penalty quiz to test your knowledge.
Speak out. You don't have to make a sign and stand in front of the courthouse to speak out. Opportunities to talk about public policy are more prevalent than you may think. When you know the facts, you are empowered to talk about policy issues without relying on opinions. Remember that you, as an opponent of the death penalty, have the facts on your side. Once you feel confident enough to respectfully voice an alternate view, you may be pleasantly surprised to discover that many people are silenced by pressures to follow dominant views.
Seek opportunities to engage in advocacy. More formal opportunities to speak out are available to those who would like to attempt to have an impact on the policy process. Many organizations are beginning to use the web as a tool for advocacy. The legislative action map provided by the National Coalition to Abolish the Death Penalty will help you identify and contact policymakers.
The Death Penalty Advocacy section of the justicepolicy.com site provides a daily update of issues - often including opportunities to contact legislators and others who want, and/or need, to hear from constituents. The Death Penalty Advocacy section will introduce you to a variety of organizations, many of which maintain active listservs and "action alert" systems that can help you stay involved.
Organize. The Moratorium project provides a Student Organizing Kit that can be used to help start a moratorium or abolition group on campus. Campus and community groups of all kinds can provide educational opportunities by scheduling speakers that will provide different perspectives on the death penalty. Many organizations listed on this page are willing to provide speakers to interested groups. Join with other students against the death penalty. Youth activism makes a difference.
Be an advocate for justice. For many of us, justice can be reached only through abolition of the death penalty. We know that policymakers are under many pressures and may not see things in black or white. Encourage policymakers to undertake comprehensive reviews of the laws, processes, and procedures relevant to the administration of capital punishment in their jurisdictions. Death without Justice: A Guide for Examining the Administration of the Death Penalty in the United States, published in 2001 by the American Bar Association, provides guidelines for this type of review.
The Constitution Project has published 18 Reforms to the Death Penalty, a report generated by a bipartisan committee of death penalty supporters and opponents, detailing specific recommendations that relate to various aspects of capital punishment.
If we must have the death penalty we should make every effort to be sure the application is consistent with the constitutionally guaranteed rights that help us assure that the "justice" system is just. Upon reviewing the administration of the death penalty policy makers may, like Justice Blackmun, may conclude that "no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies."
This work is shared under a Creative Commons License.