Reflections on the Death Penalty

Application of the death penalty is an issue about which many people have very strong feelings. To many it seems an all-too-appropriate consequence for particularly heinous acts. To others, state-sanctioned killings are morally reprehensible.

I must admit that my position on the death penalty has evolved over the years. As a young man, I believed it to be appropriate punishment, at least in some extreme cases. But the older I got, the less rational this seemed. Perhaps I was always a bit squeamish. Today I adamantly oppose the death penalty. Let me explain why with a story.

Some years ago, I had a friend (I’ll get around to had shortly) with whom I had many long and interesting discussions about crime and punishment. Both of us found that we opposed the death penalty, but that did not deter us from having far-ranging conversations well into the night.

The US justice system, we both believed correctly, is designed to protect the rights of those accused of committing crimes, oftentimes over the rights (perceived or otherwise) of those against whom crimes were committed. Of the ten amendments in the US Constitution’s Bill of Rights, four directly address the justice system - and all address the rights of those accused of crimes. Our framers clearly understood that the rights of accused criminals were those most likely to be trampled upon by government.

But that being said, crimes are committed. There are plenty of people, and always have been, who for one reason or another insist on violating others’ life, liberty, or property. Murder is, of course, a most extreme violation. But I digress.

Discussions with my friend often came back to the issue of crime being a violation against the community, perhaps more important than the crime against the individual. My friend often said he believed it was correct that indictments read The State of Texas vs. Bad Guy and not The Friends and Family of Mark Miller vs. Bad Guy. The Friends and Family of Mark Miller could well be out for blood. The larger community has a broader interest in the application of justice.

I believe there are basically five justifications for inflicting punishment on someone for any crime: retribution, restitution, deterrence, rehabilitation, and incapacitation. Of these five, retribution, in my opinion, should be of least concern to the community, even though the desire for retribution (or revenge) is deeply embedded in our humanity. The all-too-human desire to take out that SOB who harmed our spouse/child/friend is all too understandable. But communities’ need for a just legal system that overrides those impulses is clear.

Does the death penalty serve any of the other justifications for punishment? I suppose one might argue that it’s perhaps some kind of restitution for grieving loved ones. But in my opinion, that’s a stretch … revenge is really retribution, not restitution. Though hardly compensatory for the loss of a life, restitution would come in some other form, such as is meted out in insurance cases.

Some have argued that the death penalty does deter at least some people from committing murder. Though there is still some debate on this matter, most of the evidence seems to point to the lack of significant deterrence, particularly when compared against a long prison sentence. Interestingly, it was not until 2008 that the US Supreme Court ruled that the death penalty could not be applied unless the victim’s life was taken, in this case striking down laws that mandated the death penalty for child rapists. The Eighth Amendment’s prohibition against cruel and unusual punishment allows no exemption for deterrence. I agree with this.

Rehabilitation is, of course, not possible with a death sentence. But the death penalty does close the door to a criminal’s opportunity to come to some sort of acceptance, spiritual or otherwise, of his or her act. The reason the movie (and the book) Dead Man Walking was so powerful was because it so clearly presented the conflicting human instinct for revenge against that for making peace with one’s conscience and/or one’s higher power. I told my friends that no matter how they felt about the death penalty before seeing the movie (either for or against), they would feel differently afterward.

Incapacitation may be the most cogent argument for the death penalty. There are clearly murders that have been committed for which most of us (including me) would be loath to allow the perpetrator to go free. Only recently did Texas include life without the possibility of parole as an acceptable alternative punishment to the death penalty. There is considerable evidence that when life with the possibility of parole was the only option to the death penalty, juries were concerned that certain murderers might end up being released at some point in the future. Better to put them to death.

Since Texas’ life without parole law went into effect in 2005, the state’s death row population has decreased from a high of 459 to 245 thus far in 2017. Executions have declined from a high of 40 per year in 2000 to 7 in 2016. Only four people were added to death row in 2016. 

Back to those discussions with my friend. In 2009 my feelings about the death penalty were put to a test. My friend was brutally and senselessly murdered in the entry way to his home by a young man he did not know. His murder seemed particularly senseless. My friend often reached out to young men in trouble, such as the one who killed him. There was no doubt about the man’s guilt. He had been seen in the yard and confessed to the crime after driving to the county jail. Not unexpectedly, drugs, alcohol, and mental illness were also involved.

In the course of the judicial proceedings, our local District Attorney wanted to put the death penalty on the table. My friend’s daughter, knowing her father’s beliefs, was against it. She asked me to write a letter to the DA explaining her dad’s beliefs. She gave me permission to express my own beliefs as well. My own desire for revenge was overcome in large part by those long discussions with my friend, as well as his compassion for young men in trouble. The death penalty was never threatened.

My friend’s murderer received a life sentence with the possibility of parole after 40 years. It was some comfort to his daughter that he would not have the opportunity to get out of prison until he was as least as old as her dad was when he was killed. As the prosecuting attorney told us: “Old men don’t commit such crimes, young men do.”

I remain of the opinion that for humanitarian, moral, and even practical reasons, the death penalty should no longer be an acceptable punishment for any crime. The number of executions in the US has been declining since 1999. Currently 19 states have no death penalty. The only question, perhaps, is how much longer will it be before the US Supreme Court declares the death penalty cruel and unusual?

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