The Campaign to abolish the death penalty (nodeathpenalty.org) lists five reasons why one should oppose the death penalty. I would like to note all of these reasons are weak or wrong.
1 and 2: the death penalty is used unfairly
Both have the same idea, so I lumped them together.
This argument is extremely weak, as it is not against the death penalty, but
all punishments. For the majority of abolitionists, the racial argument is only one argument. In other words, they think other reasons prove the death penalty is unjust. However, to argue the race card merely states if it was used fairly it would be okay, which none of them would admit. There is also no reason to believe that if the race point was true (which is debatable) it would not merely enter LWOP debates. In other words, if the death penalty is racist, so it was abolished on that merit, wouldn't LWOP be racist as well and be hurting minorities? This is not an argument against the death penalty, only for the judicial system. If you believe in this argument, and think it disproves the death penalty, you must, therefore, agree all punishments are unjust.
Further note there is still debate on whether or not racial bias exists. I recently wrote a well researched article showing the academic evidence is hugely against the racial argument. The racial point relies on a few premises:
1. Blacks are 35% of those executed
2. Blacks are only 12% of the population (depending on the estimate)
3. Therefore, the death penalty is unjust
The argument begins to fail when one notices blacks commit nearly 50% of the homicides worthy of a death penalty case in this country, meaning their execution rate is actually nice. It is below what it should be, meaning we are giving amnesty [1]. I would like to note me arguing blacks commit most of the murder isn't a racist statement, it is merely a statistic which is proven by many studies. It is caused by the higher poverty rate[s]. I would also like to note the Department of Justice released a study in 2001. CNN notes, "Sources told CNN the report's [DOJ report] conclusions, in effect, reject arguments
by capital punishment opponents, who this week called on President Bush
to halt federal executions because they say death sentences are
disproportionately imposed on members of minority groups. ... Sources told CNN the report will show that varying state laws, the
decisions of individual state prosecutors, and the sharply
different
types of serious criminal cases [emphasis added] handled by U.S. Attorney's offices
around the country will be cited as reasons that help account for the
disparities cited in the earlier report"[2].
The highlighted section essentially argues what proponents have argued since the point was brought up. Race is not the biggest factor in the decision, the different types of crime is what influences the decision. As Dudley Sharp argued in 1999, "
The determining factor for sentencing in death-penalty cases is
what it should be -- the aggravating nature of the crimes. Both the
Rand Corp. study of 1991 and the research presented by Smith College
professors Stanley Rothman and Stephen Powers in 1994 confirm that
finding"[3].
In the article I previously mentioned [1], I provide a more detailed case against the racial point.
A second point made by abolitionists is that we are hurting the poor, and again the argument is just smoke and mirrors. For example, many studies have been argued by people on both sides proving X or Y, however the facts remain the same. In Georgia, for example, 78% of the murderers where considered poor, and only 38% of those on death row are considered poor [4]. Now, a rebuttal to this would be easy. For example, one could argue what I did above. Their attorneys are worse and this means they are still being executed wrongly. This argument used to be true, however is losing credibility. A study by Joshua Marquis notes, "There is no doubt that before the landmark 1963 decision in Gideon v.
Wainwright appointed counsel was often inadequate. But the past few
decades have seen the establishment of public defender systems that in
many cases rival some of the best lawyers retained privately"[5].
Arguing the lawyers are of different quality is a weak point. Even if abolitionist prove poor people are more likely to be executed, proponents still win as we can prove most murderers are poor (so the rate would be just). We could also argue every one of those executions is just as the lawyers are of equal quality and, therefore, where justly found guilty.
The death penalty is not applied unfairly ans should not be considered discrimitory.
3. Innocents have been executed
This is the most common argument, and like all (or most) anti death penalty sentiments it is wrong. There is little proof many people have been executed, at most the number is under forty, which means the death penalty has a 99.9% success rate. I would also like to note the likelihood of executing an innocent is forever decreasing with improving forensic technology. Those executed after 2000 is almost none, and the majority of those "innocent" where executed in the 70's or 80's. With this in mind, each passing day the validity of this argument decreases.
I would also like to note the lists by the DPIC and others are highly exaggerated. Out of the many cases of "innocents" in the DPIC list, only 34 are arguably actually innocent. Ward A. Campbell, a Deputy Attorney General finds the DPIC list to have flawed methodology. First, the definition of innocence is skewed. Being acquitted means you are on the list, so you are "legally innocent". Note, however, legal innocence and actual innocence is not the same thing. For example, I may be acquitted because I am not proven without a doubt (I may be probably guilty, but not proven without a doubt), meaning I might be 100% guilty! Even if I was executed, I would hardly be innocent. With this in mind, only 34 people are actually innocent based on that list, and it is still possible they where guilty as well. In other words, there is little proof we have even executed on innocent [6]. Dudley Sharp has the same concerns, "
As Dieter and other death penalty opponents make no distinction between the
actually innocent and the legally innocent, why don't they claim that over
2500 innocents have been "exonerated" from death row? That is the number of
legally and actually innocent released from death row since 1973 (6). The
answer is obvious. They hoped that the media and others might just assume
that the 102 (and the previous lesser numbers) were actually innocent and
not ask any questions. And that is exactly what has happened -- a successful
deception, aided by the poor fact checking standards of the media. The 2500
number, even for the media, is just too large a number for such blind
acceptance.... Acquittal, which is a "not guilty" verdict, means that the state was unable
to meet the necessary burden of proof, in establishing guilt beyond a
reasonable doubt. It has nothing to do with establishing actual innocence.
... A review of the DPIC 102 case descriptions finds that only about 32 claim
actual innocence, with alleged proof to support the claim. 12 of those 32
are DNA cases. That is 32 cases out of about 7300 death sentences since
1973, or 0.4%. National Review's Senior Editor Ramesh Ponnuru,
independently, came up with the same number for his "Bad List" article."[7]
Innocents being executed? Ever so rarely, and the amount of lives it saves is huge.
4. Death penalty does not deter crime
Hogwash, this point is so untrue it is laughable. The death penalty is 100% successful in preventing recidivism. According to a 1998 study, if the death penalty was used on all murders about 800 lives would be saved. A 1997 update by JFA finds the number is near 1000 [4]. Professor Paul Cassel notes, "Out of a sample of 164 paroled Georgia murderers, eight committed
subsequent murders within seven years of release. A study of twenty
Oregon murderers released on parole in 1979 found that one (i.e., five
percent) had committed a subsequent homicide within five years of
release. Another study found that of 11,404 persons originally convicted
of "willful homicide" and released during 1965 and 1974, 34 were
returned to prison for commission of a subsequent criminal homicide
during the first year alone."[8]
Murray Rothbard noted in 1978, "Another common liberal complaint is that the death penalty does not
deter murder from being committed. All sorts of statistics are slung
back and forth trying to "prove" or disprove this claim. While it is impossible to prove the degree of deterrence, it seems indisputable that
some murders would be deterred by the death penalty. Sometimes the liberal argument comes perilously close to maintaining that
no punishment deters
any
crime — a manifestly absurd view that could easily be tested by
removing all legal penalties for nonpayment of income tax and seeing if
there is
any reduction in the taxes paid. (Wanna bet?) Furthermore, the murderer
himself is certainly "deterred" from any repetition of his crime — and quite permanently."[9]
Lets look deeper into his point on deterrence. Specifically, "While it is impossible to prove the degree of deterrence, it seems indisputable that
some murders would be deterred by the death penalty."
The argument no punishment would be deterred by punishment of any kind is absurd, Gary S. Becker noted in his study, which founded deterrence theory, that criminals respond to punishments. He admits some criminals, such as psychopaths, don't register cost and benefit and wont be affected. However most criminals are rational, so stricter punishments causes many criminals to be deterred. The harsher the punishment, the less crime will occur [10]. Another study 10 years later replicates these results. Paul H. Rubin and John J. Siefred find in their 1978 study criminals react, like all humans, with a cost and benefit meter in their minds. They act as humans do in economics, (like Murray Rothbard said) if we removed all penalties from taxes, less people would pay. This is a great example of deterrence theory as it shows without the punishments, our brains go wild. So it is inevitable more punishment lowers crime. As they put it, in their analogy, criminals maximize their own self interest and are subject to constraints (such as prices) that they face in life [11]. Criminals are, usually, rational actors and can be detered. The question is now, does the death penalty deter?
The evidence is actually not surprising. In the 1970s, Issac Ehrlich published a study arguing the DP deterred crime. After meeting harsh criticism from academic bodies (NAS) and other scholars, he wrote another paper addressing
all criticism. A study by Stephan K Layson in 1985 reinforced Ehrlich's findings. Recent research finds 3-18 lives saved on average [12].
John Lott gives us further insight. He looked at only economic studies (not studies published by sociologists or criminologists), and he finds a large consensus. He finds 9 out of twelve economic studies find deterrence, and he published a study (in 2007) in his book freedomnomics which finds 5 lives saved. John Lott notes, "The media is a bit Johnny-come-lately in recognizing all the research
that has been done on the death penalty over the last decade, with nine
of the 12 refereed academic studies by economists finding that the death
penalty saves lives."[13]
The CJLF has done a tally of the studies from 1996-2010, and 17 find deterrence, 5 find no deterrence, and 2 are inconclusive. The NAS report is actually falsely cited saying the DP does not deter crime, they actually admitted there is evidence for that assumption but it is "weak". Also, the citing of that paper is cherry picking at its finest as it says all research is flawed, and no conclusions can be made. Remember that when you read that on the DPIC website. There is a vast consensus amongst the published works, however, proving deterrence [14].
More data has been presented by Wesley Lowe, Lowe notes, "
During the temporary suspension on capital punishment
from 1972-1976, researchers gathered murder statistics across the
country. In 1960, there were 56 executions in the USA and 9,140
murders. By 1964, when there were only 15 executions, the number of
murders had risen to 9,250. In 1969, there were no executions and
14,590 murders, and 1975, after six more years without executions,
20,510 murders occurred rising to 23,040 in 1980 after only two
executions since 1976. In summary, between 1965 and 1980, the number of
annual murders in the United States skyrocketed from 9,960 to 23,040, a
131 percent increase. The murder rate -- homicides per 100,000 persons
-- doubled from 5.1 to 10.2. So the number of murders grew as the
number of executions shrank."[15]
Wait, hold on, states without the DP have lower crime rates! So the death penalty does not deter crime.
John Lott has the same rebuttal, "This simple comparison really doesn’t prove anything. The 12 states
without the death penalty have long enjoyed relatively low murder rates
due to factors unrelated to capital punishment."[13]
The DP does not cause these high crime rates, other factors such as urbanization, culture, weather even, affect crime. These comparisons prove nothing.
Issac Ehrlich called these analysis's (similar to the Times study), "[These studies are] a throwback to the vintage 1960s statistical analyses done by
criminologists who compared murder rates in neighboring states where
capital punishment was either legal or illegal." and that "The statistics involved in such comparisons have long been recognized as devoid of scientific merit."[18] AIM.org continues, "[W]hat is needed is an analysis that can isolate a variety of factors that
influence the murder rate, including not just the legal status or even
the actual enforcement of the death penalty, but also the probability of
apprehension, the probability of conviction or punishment by
imprisonment, the rate of unemployment, the degree of inequality in
income distribution, and related economic factors that vary across the
states being compared."[18] In other words, these studies have no merit as they cannot control for other factors. That rebuttal to deterrence is weak, and wrong.
Wait, cant Life in Prison deter just as much as the death penalty? However, this is unlikely as 99.9% of criminals (actual statistic) prefer life in prison to death [4]. This means that, on balance, a criminal will be detered by the death penalty more.
Now, I saw a rebuttal to this saying this means they will kill and turn themselves in so they get a lesser sentence. When I saw that, I laughed. A criminal does not want to get caught, that's why they never admit until they are captured. It made little sense to me. Not one study proves that point, statistic, or example. It is mere speculation that has no logic whatsoever.
The death penalty deters crime more then its alternatives, and in general. And thats a fact.
5. The death penalty is unconstitutional
This is an odd concept. Firstly, the best way to decipher the constitution is by originalism as it shows the actual meaning to the founders. And if you want to change it, amend it. But originalism is the only real way to do it [19]. In Callins v. Collins, the court noted, "The Fifth Amendment provides that '[n]o persons shall be held to answer
for a capital...crime, unless on a presentment or indictment of a Grand
Jury...nor be deprived of life...without the due process of law.' This
clearly permits the death penalty to be imposed, and establishes beyond
doubt that the death penalty is not one of the 'cruel and unusual
punishments' prohibited by the Eighth Amendment"[8].
In Baze v. Rees, the court notes:
"Simply
because an execution method may result in pain, either by accident or
as an inescapable consequence of death, does not establish the sort of
'objectively intolerable risk of harm" that qualifies as cruel and
unusual" Note, this means the botched execution argument fails. They further note, "Kentucky
has adopted a method of execution believed to be the most humane
available, one it shares with 35 other States... Kentucky's decision to
adhere to its protocol...cannot be viewed as probative of the wanton
infliction of pain under the Eighth Amendment..."[20]
In Trop v. Dulles, the court held that the DP does not fit the definition of cruel an unusual. One of those characteristics must be its popularity, and they noted due to the fact the death penalty is widespread in America and commonly accepted, it does not meet the definition of "unusual", and they find the cruel arguments lacking [21].
In sum of constitution:
--The founders supported the DP, via the 5th amendment, meaning based on origionalism and the 5th amendment (as noted in Callins v. Collins) proves the constitutional
support for the death penalty.
--The courts almost always side with the death penalty in these overall cases
As we can see, the death penalty is fully justified.
Note on sources:
The prodeathpenalty.com links may have a few wrong dates as it was written month/day/year, and when I wrote this I first thought it was day/month/year. I figured this out however later. And for Rothbard, I could not find its electronically published date, so I used its original data of 1978.
1.
http://homicidesurvivors.com/2012/09/25/the-racial-myth-of-the-death-penalty--.aspx
2. "U.S.: No Racial Bias in Federal Death Penalty Cases."
CNN.com. Cable News Network, 06 June 2001. Web. 03 Oct. 2012. <http://archives.cnn.com/2001/LAW/06/06/justice.death.garza/>.
3. Sharp, Dudley. "Death Penalty in Black and White."
Death Penalty in Black and White. Justice For All, 24 June 1999. Web. 03 Oct. 2012. <http://www.prodeathpenalty.com/racism.htm>.
4. Sharp, Dudley. "Death Penalty Paper."
Death Penalty Paper. Justice For All, 10 Jan. 1997. Web. 03 Oct. 2012. <http://www.prodeathpenalty.com/dp.html>.
5. Marquis, Joshua. "The Myth of Innocence."
Journal of Criminal Law and Criminology (2005): n. pag. Web. 3 Oct. 2012.
6. Campbell, Ward A. "DPIC "Innocence" List."
DPIC "Innocence" List. Justice For All, 10 May 2001. Web. 03 Oct. 2012. <http://www.prodeathpenalty.com/dpic.htm>.
7. Sharp, Dudley. "Innocence."
Innocence. Justice For All, 14 Apr. 2000. Web. 03 Oct. 2012. <http://www.prodeathpenalty.com/innocence.htm>.
8. Carmical, Cassey. "The Death Penalty: Morally Defensible?"
The Death Penalty: Morally Defensible? N.p., 2007. Web. 03 Oct. 2012. <http://www.hoshuha.com/articles/deathpenalty.html>.
9. Rothbard, Murray. Ph.D.
"The Libertarian Position on Capital Punishment." L
udwig Von Mises Institute, June 1978. Web. 03 Oct. 2012. <http://mises.org/daily/4468>.
10. Becker, Gary S. Ph.D. "Crime and Punishment: An Economic Approach."
Journal of Political Economy (1968).
11. Rubin, Paul H., and John J. Siefried. "The Economics of Crime."
American Economic Review (1978)
12. Muhlhausen, David B., Ph.D.
"The Death Penalty Deters Crime and Saves Lives."
The Heritage Foundation, 28 Aug. 2007. Web. 04 Oct. 2012.
<http://www.heritage.org/research/testimony/the-death-penalty-deters-crime-and-saves-lives>.
13. Lott, John R., Ph.D. "John Lott: Death as Deterrent | Fox News."
Fox News. FOX News Network, 20 June 2007. Web. 03 Oct. 2012. <http://www.foxnews.com/story/0,2933,284336,00.html>.
14. "Support CJLF."
Support CJLF. Criminal Justice Legal Foundation, 2010. Web. 03 Oct. 2012. <http://www.cjlf.org/deathpenalty/dpdeterrence.htm>.
15. Lowe, Wesley. "Pro Capital Punishment Page."
Pro Capital Punishment Page. Wesley Lowe.com, 17. Jan. 2011. Web. 03 Oct. 2012. <http://www.wesleylowe.com/cp.html>.
18. Irvine, Reed, and Cliff Kincaid. "New York Times Under Fire Again."
Accuracy In Media.
Accuracy in the Media, 16 Oct. 2000. Web. 04 Oct. 2012.
<http://www.aim.org/media-monitor/new-york-times-under-fire-again/>.
19. (originally published in 1989, on the web by 2001) Scalia, Antonin. "Originalism: The Lesser Evil."
Scalia. University of Cincinnati Law Review, 2001. Web. 04 Oct. 2012. <http://sobek.colorado.edu/~bairdv/Scalia.htm>.
20. Taken from PROCON.org, but the quote first came from justice Roberts which can be found here: http://www.law.cornell.edu/supct/html/07-5439.ZC1.html
21.
Trop v. Dulles, 1958, Chief Justice Earl Warren
