FindLaw
USA:
Will Capital Punishment Ever Die?-- A Review of The
Contradictions of American Capital Punishment
[Franklin
E. Zimring, The Contradictions of American Capital Punishment]
In
The Contradictions of American Capital Punishment, Boalt Hall
Professor of Law Franklin E. Zimring attempts to resolve several major
conundrums about the death penalty in the United States.
Zimring
does a laudable job of answering these lingering, troubling questions.
He also suggests that U.S. death penalty support is waning, but
explains why true abolitionism here - commonplace in Western Europe -
may be long in coming to America.
Why
Is the U.S. So Committed to the Death Penalty?
2
major questions Zimring addresses are these: Why is the U.S. the only
developed Western nation to currently have the death penalty? And,
what is it about our history and culture that supports our affinity
for this ultimate use of government power?
Western
European countries have rejected capital punishment as a matter of
fundamental political belief - the deeply-held belief that no
civilized state should execute its citizens. To these countries,
execution is now as unthinkable as slavery or cannibalism.
In
contrast, capital punishment is ensconced firmly in the American
tradition. Of the 50 states, a strong majority of 37 has chosen to
have the death penalty.
Nevertheless,
in practice, three-quarters of executions occur in the South and in
Arizona. Moreover, a handful of southern states account for most of
these executions - with Texas, Virginia, and South Carolina leading
the pack.
Zimring
suggests that the reason for the predominantly Southern character of
the American death penalty is cultural. The death penalty culture of
the contemporary South, he argues, comes from the same culture of
vigilante justice that once led to lynchings.
To
prove his point, Zimring offers an appendix that shows a strong,
direct correlation between a state's rank in number of lynchings, and
number of executions. His statistics should give pause to anyone who
believes that the death penalty is somehow the product of reasoned
deliberation, rather than simple mob vengeance.
What
Will Happen to the Death Penalty in America?
Zimring
also asks this further question: What is the future of the death
penalty in the U.S.?
In
Gregg v. Georgia, in 1976, the Supreme Court laid down guidelines for
imposition of capital punishment. Ironically, however, in the states
where the death penalty is strong, there have been more, not fewer,
executions since then.
What
accounts for this? Zimring cites two main causes. First, federal
habeas corpus review of state death sentences has been sharply limited,
especially in the 1996 Antiterrorism and Effective Death Penalty Act.
Second, victims' rights groups, and victims' families, continue to be
involved in the prosecutorial process, weighting it towards imposition
of the death penalty. Most prosecutors seek input from the victim's
family in deciding whether to seek the death penalty. Several states
allow families to witness executions.
Nevertheless,
despite these developments, Zimring suggests that overall, the
American people's approval for the death penalty is waning. The main
reason for this, Zimring suggests, has been recent findings that
innocent people were on death row awaiting execution - and the
companion realization that in the past, many who should have been
exonerated, must have been executed instead.
According
to data maintained by the American Civil Liberties Union, between 1973
and 2003, 110 death row inmates in 25 states were found to be innocent
and released from death row. More than half of these exonerations
occurred in the last 10 years. The advent of DNA testing has also been
helpful in convincing the public that the execution of innocents is a
reality, and that this atrocity is actually shockingly common. Notably,
it was this concern that led former Illinois Governor Jim Ryan to
commute the death sentences of all the condemned men in Illinois.
An
Administration Far Out of Step with U.S. and World Death Penalty
Opinion
Meanwhile,
however, we have a President and Attorney General who are obsessed
with the death penalty, and thus out of sync with the evolving trend.
One sign of this is that since 2001, while Attorney General Ashcroft
has sought the death penalty in 18 cases (often against the wishes of
his prosecutors), the sentence has actually been handed down in only a
single case.
While
governor of Texas, Bush presided over a staggering 152 executions. He
has assures us that he never signed the death warrant for an innocent
person. But records of communications between Bush and his now-White
House Counsel, and then-State House counsel Alberto Gonzales, indicate
that Bush engaged in only perfunctory (if that) review of death
sentences, as FindLaw Columnist John Dean has discussed.
In
light of this revelation, the chance that Bush never allowed the
execution of an innocent person - or one whose trial process was
grossly deficient - seems slim indeed. And Bush's casual review of
life-or-death decisions seems to betoken an extremely casual attitude
about the death penalty. During the 2000 presidential campaign, Bush
even ridiculed the clemency plea of death row inmate Karla Faye Tucker.
Bush's
attitude is far different from that of the American people, who are
concerned about death penalty injustices, and that of U.S. allies.
Moreover, foreign leaders - as Zimring notes - are increasingly
willing to criticize and stigmatize the U.S.'s devotion to the death
penalty.
Recently,
British Prime Minister Tony Blair demanded that 2 British subjects
held on Guantanamo Bay as enemy combatants not be considered
death-eligible in their military tribunal trials. Bush capitulated.
In
addition, Germany and France - which have cooperated greatly with the
U.S. in hunting down and capturing Al Qaeda operatives - have sought
to ensure that the information they provide the U.S. cannot be used to
seek a death sentence for terrorists brought to trial in the U.S..
France sought such a concession in the case of Zacarias Moussaoui.
The
Court: Some Hope for Curtailing the Use of the Death Penalty, But Not
Much
Some
progress has also been made in the U.S. Supreme Court, but it has been
limited. In its recent decision in Atkins v. Virginia, which I
discussed in a column for this site, the Court held that the mentally
retarded cannot constitutionally be executed. Justice O'Connor wrote
the Atkins decision, and also was heard to remark in 2001, that "if
statistics are any indication, the system may well be allowing some
innocent defendants to be executed."
In
the upcoming October Term 2003, the Court will confront the question
of whether it is constitutional to execute the mentally ill - and may
well reach a similar conclusion. But the future is less hopeful. The
Court may well become even more rightward-leaning if Bush is
re-elected and Justices retire, as several are expected to do. If O'Connor,
one possible retiree, is replaced by a strongly pro-death-penalty
Justice, the Court's death penalty jurisprudence might even worsen.
With
virtually, and perhaps literally, no chance of the Court striking down
all - or even most - death penalty applications, States will still be
able to apply the penalty if they so choose. And even if America
continues to undergo a sea change in death penalty opinion, if that
change does not reach the death-happy Southern states that are most
prone to apply the penalty, it may do little practical good. Death row
inmates were laudably freed in Illinois - but when, if ever, will they
be freed in Texas?
Chipping
Away at the Death Penalty, But Not Abolishing It
Overall,
Zimring's findings indicate that public and judicial sentiments remain
focused on what are perceived to be the most egregious death penalty
abuses, and not on the abolition of the penalty itself. Yet the death
penalty is inherently flawed, not simply problematic.
Condoleezza
Rice called slavery the "birth defect" of the American
republic. The death penalty is likewise a congenital deformity. There
is a cure, but it will require a continuing shift in public opinion.
We are likely to be living with the death penalty for the foreseeable
future.
(source:
FindLaw (Elaine Cassel practices law in Virginia and the District of
Columbia and teaches law and psychology. She is the chair of the
American Bar Association's Behavioral Science Committee of the Science
and Technology Law Section, and authors a web log, Civil Liberties
Watch.)
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