By David Garland
Sunday, July 18, 2010; B03
The death penalty: the punishment we reserve for the worst criminal offenders. Last week, law enforcement officials said it was on the table for four men charged in the shooting deaths of unarmed civilians in New Orleans in the days after Hurricane Katrina. It's a signal that the crimes were truly reprehensible. Much of what we think we know about American capital punishment comes from the longstanding debate that surrounds the institution. But in making their opposing claims, death-penalty proponents and their abolitionist adversaries perpetrate myths and half-truths that distort the facts. The United States' death penalty is not what its supporters -- or its opponents -- would have us believe.1. The United States is a death-penalty nation.
In fact, this country barely uses the death penalty today. Fifteen states and the District of Columbia have abolished capital punishment. Of the 35 "death-penalty states," one-third rarely sentence anyone to death and another third impose death sentences but rarely carry them out. In many states, the only people to be executed are "volunteers" -- death row inmates who abandon an appeals process that would otherwise keep them alive. Eighty percent of executions now take place in the states of the former Confederacy, the vast majority of them in Texas. Death sentences have also decreased in recent years. One reason is that states now give juries the power to impose life imprisonment without parole. Another is that prosecutors advise victims' families that they may be better off seeking a prison sentence instead of capital punishment. That way, they will not have to watch year after year as the murderer goes to court seeking to have the death sentence overturned.2. The United States is out of step with Europe and the rest of the Western world.
This claim is true in one important sense: We have the death penalty and they don't, even if we no longer have it in the full-blown sense. Since 1981, when France finally gave up the guillotine (yes, people were still being decapitated in the late 1970s), Europe has been a death penalty-free continent, and commentators point to a "deep divide" between it and the United States.
But this sharp contrast is misleading. For most of the past 200 years, American states have been on the vanguard of death-penalty reform. Michigan abolished capital punishment for all ordinary crime in 1846, a century before most European nations did so. Northern states were ahead of the rest of the world in banning public execution. The United States led the effort to develop less painful execution techniques, replacing hanging first with the electric chair, then the gas chamber, and finally with lethal injection. In all these respects, the United States was no different than other Western nations. It is only in the past 30 years that a gap has opened up, with Europeans abolishing the institution and Americans retaining it in an attenuated form.3. This country has the death penalty because the public supports it.
It is true that, when asked by pollsters, a majority of respondents say they support the death penalty. It is less clear whether people are well informed about the issue, have given the matter much thought, or have considered alternatives, such as life in prison without parole. But majorities in other Western countries support capital punishment, too. Their political leaders abolished the institution nevertheless.
As in the United States, these other nations are liberal democracies, but the balance between "liberalism" and "democracy" is different on the other side of the Atlantic. European leaders imposed reform, against the view of the majority, because they believed it was the right thing to do, because their nations' constitutions gave them the power to do so, and because bipartisan action and strong political parties provided cover against voter disapproval.
The United States' democracy is different. Each state can choose whether to have the death penalty. It's not a central government decision, as it is in other countries. Our criminal justice system is different, too. In many cases, we elect prosecutors and judges -- a politicization of the process that is unheard of elsewhere. In this country, the Supreme Court is the one national institution that has the power to abolish capital punishment throughout the nation. It almost did so in 1972 in Furman v. Georgia. But the law-and-order movement of that period made the court's decision deeply unpopular. States quickly passed new statutes and the court backed down soon after. Since then, the court has insisted that the death penalty must remain a matter for state lawmakers to decide.4. The death penalty works.
Proponents of the current system insist that it deters crime and guarantees that murderers receive the most powerfully retributive punishment. It may be the case that some death-penalty systems are effective deterrents. Singapore has a mandatory death penalty for drug trafficking and hangs offenders swiftly and often. In China, thousands of offenders are killed each year, many for economic crimes and corruption. Neither nation discloses statistics on crime and punishment, so we have no way to know for sure. But it stretches credulity to think that the death penalty, as administered in the United States today, can be an effective means for deterring murder -- the only crime for which it is available. Last year, there were more than 14,000 homicides in the nation but only 106 death sentences. The chances of any particular killer being caught, convicted and sentenced to death are vanishingly small.
Of those sentenced, 66 percent have their death sentences overturned on appeal or post-conviction review. (According to the Death Penalty Information Center, a smaller number -- 139 -- have been exonerated in the past 30 years, about a dozen on the basis of DNA evidence.) The few offenders who are executed wait an average of more than 12 years, some for as long as 30 years. None of this makes for swift or sure deterrence. It also does not give rise to effective retributive punishment. Prolonged delays defer and dilute any satisfaction or "closure" that the punishment might bring.5. The death penalty doesn't work.
The idea that the death penalty definitely works may be a myth -- but this doesn't mean that the opposite is true. Capital punishment is not, as its opponents argue, all costs and no benefits. They are right, however, that it is expensive. An Indiana study last month showed that capital sentences cost 10 times more than life in prison without parole. And the current system ensures neither deterrence nor punishment.
But the system serves some purposes nevertheless. In a nation where the prison system is so overused that the currency of imprisonment is largely devalued, the death penalty allows juries to make an emphatically punitive statement. Politicians give voters what they want by enacting capital punishment statutes even when they will never be enforced. Prosecutors use the threat of a death penalty as leverage to elicit plea bargains and cooperation. The news media are drawn to death-penalty cases because they elevate a routine case to a suspenseful drama where life and death are at stake.
We avidly consume these dramatic stories and enjoy the opportunity to engage, once more, in the old and familiar debate. But it's time to change the terms of that all-too-familiar debate. Getting past the myths and looking at how the death penalty actually operates is one place to start.
David Garland is a professor of law and sociology at New York University. His book "Peculiar Institution: America's Death Penalty in an Age of Abolition" is forthcoming this fall.
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