The Death Penalty Today III
Bill Long 5/8/05
Finally, We get to Today
Still on Point III. Liberals were supportive of "life without parole" statutes as a way of dealing with the problem I highlighted at the end of the previous essay. It was a way for juries to 'let off steam' by sentencing a defendant to life imprisonment without the possibility of parole ("LWOP") and it would protect the society. In addition, as the 1980s turned into the 1990s studies began to come out showing that it was actually cheaper to keep a person in a prison for life than to pay for the lengthy appeals that are assured to people sentenced to death.* Thus, LWOP plus arguments that it was cheaper to Death Row people alive than to execute them became
[*Another issue generally ignored in the death penalty debates today is the way that the criminal defendant has about 8 to 10 steps, either appeals or hearings, that are avaialble to him once he has been sentenced to death by a jury. These 8 to 10 steps can take around 15 or more years to exhaust. They are costly steps, too. The issue generally ignored is not that there are so many steps, but how it came about that so many steps are permitted to a defendant. In short, it was through the passage of state habeas corpus or post conviction legislation, usually in the 1950s and 1960s, requring a method of reviewing the constitutionality of all criminal convictions. This "post conviction" world, then, contributed at least six steps to the process because one's criminal conviction can be attacked (and appealed) both in state and federal courts. Post-conviction statutes, in my judgment, are really the "culprits" in making the death penalty an increasingly costly and ineffective way of "doing justice" in America.]
two arguments of abolitionists in the 1990s as to why the death penalty was not appropriate for today. My 2001 book on the history of Oregon's death penalty was in this genre.
IV. Studies and Evidence From Today
But now, in 2005, there finally is enough "data" for the sociologists to go back to work and tell us if the goals of the statutes written in the 1970s and early 1980s, to limit jury discretion and thus to eliminate the freakishness of the imposition of the death penalty, have been realized.* The Ohio
[*In addition, as many people know, the advent of new forms of technology, such as DNA testing, has made it possible for criminal defense attorneys to argue that new trials ought to be granted to people who have been convicted possibly only on the word of jailhous informants but whose DNA evidence might either exculpate or bring into question the convictions.]
study that stimulated these essays is the latest in a spate of studies that try to answer the question of whether in fact, in the brave new world of bifurcated trials and "channeled juror discretion" of the "modern" death penalty statutes, we have eliminated bias in death sentencing and becoming more "fair" (whatever that might mean) in the imposition of the penalty. By arguing that race continues to be a factor in death sentencing, and that liberal counties (such as Cuyahoga, which contains Cleveland) sentence people to death at a disproportionately lower rate for the same crimes than a conservative county (such as Hamilton), the study is trying to show that the death penalty still is applied in a fundamentally unfair way. Seen in this way, this study is one of a continuing flood of materials that now try to argue for abolition or, at least, moratorium in the imposition of the penalty.
Conclusion--the Language of the Debate
However much they are informed by theoretical and survey data, public polity debates in America ultimately come down to cliches. That is, both sides in the death penalty debate want the large uninformed middle to adopt their cliche. If either side can get its word into America's mind and conversation, legislative efforts either to abolish or strengthen the death penalty will result. If America can be convinced that the death penalty is fundamentally unfairly applied to people, and that it is, in fact, a "poor man's penalty," then there is a chance that it will be abolished or curtailed in the ensuing years. If, on the other hand, the language of vengeance, dressed up in theological speech or simple retaliatory language, is still more appealing to America, we will continue to have the death penalty and executions. So, today we are struggling for the cliche that will win the day.
Thus, when all the studies have been written and all the talk shows have been held, the bottom line is an attempt to try to come up with a convincing cliche that will lodge in Americans' minds. People live their lives at breakneck speed today, and really don't have time to consider evidence in detail. In addition, there are so many issues of public importance out there, in addition to the need to earn a living, care for the kids, and take care of oneself, that to expect most people to search for anything more than a cliche-understanding is expecting too much. Or, to put it more positively, our search for cliches is really an attempt to try to find a phrase that gets to the heart of the issue. It is frequently the case that those who understand a subject best are those who can present it most briefly--because they have learned to boil down what is most essential about the subject to a few trenchant observations. We seek those trenchant observations.
What will those observations be that control the death penalty debate in the future in America? Let's try out a few: (1) the DP is really a "poor man's penalty"; (2) the DP is applied disproportinately to minorities; (3) the DP is too "certain" a judgment for an often inexact process; (4) the cost of executions far exceeds the cost of keeping capital defendants alive, and society is just as safe with them permanently behind bars. Or, from the perspective of death penalty proponents, the following lines might resonate: (1) You take someone's life in a violent way, and you have forfeited your right to live; (2) If a good person is dead because of your acts, why should you, a bad person, continue to live?; (3) Justice requires a kind of symmetry in punishment when capital murder is involved; (4) Vengeance as a philosophical and sentencing reality is OK.
The battle goes on. I think that abolitionists are gaining the upper hand, even though I think it will be about 5 more years before the issue comes front and center to America's consciousness. But, if you are 22 or 25 and interested in making a name for yourself in the future, study the death penalty. By the time you are "of age," America would love to hear from you.
Copyright © 2004-2007 William R. Long