Dr. Gordon P. Waldo
College of Criminology & Criminal Justice
Florida State University
THE DEATH PENALTY IS EXTREMELY ARBITRARY
In the Furman decision declaring the death penalty unconstitutional in 1972, Justice Stewart said that “these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders … the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed” (Furman v Georgia, 1972, p. 34-35).
THE DEATH PENALTY IS RACIALLY DISCRIMINATORY
Research has found that the murderer is much more likely to be charged, convicted and executed if the victim is white. In executions for interracial murders in the United States 93% had a white victim and black defendant (DPIC, Espy Execution File).
In Florida, a white person has never been executed for the rape or murder of a black person (Radelet, 2001; DPIC, Espy Execution File). According to Mandery, in the entire history of the United States every rape case that received a death sentence had a white victim and a black defendant (Mandery, 2013 p. 18)
THE DEATH PENALTY IS USED AGAINST THE LOWER CLASSES
Rich, famous, and influential offenders can avoid receiving the death penalty and frequently even a conviction. Many people believe that the O.J. Simpson case (Casarez and Sgueglia, March 13, 2018) and the Robert Blake case (Fryer, et. al, May 4, 2016) are examples. They were both charged but found ‘not guilty’ of murdering their wives, however, they were both later found responsible in civil suits for large sums of money.
Rich people don’t receive the death penalty, it is used instead for people who have the least resources and consequently have the “worst lawyers”. On April 9, 2001, Supreme Court Justice Ruth Bader Ginsburg said, “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. People who are well represented at trial do not get the death penalty” (McAllister, 2003, p. 74).
An examination of 461 capital cases by The Dallas Morning News found that nearly one in four condemned inmates had been represented at trial or on appeal by court-appointed attorneys who have been disciplined for professional misconduct at some point in their careers (Dallas Morning News, September 10, 2000).
An investigation by the Texas Defender Service found that, “Death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard” (Texas Defender Service, 2002).
John Spenkelink’s last words are worth repeating in this context, “Capital punishment — Them without the capital get the punishment” (Clark County Prosecutor, n.d.).
These studies show that the cost of a death penalty system is much greater than an LWOP system. The studies have varied in many ways. Some have studied specific components while others have been more comprehensive. They have been conducted in different states, at different times, with varying differences in the state systems. They have been conducted under different auspices, for different purposes, and by people with different perspectives. Studies have been made by academicians, legislative commissions, journalists, and interested citizens. The studies clearly varied in quality, style, and type of publication. Most importantly, however, despite all of these differences, the studies all agree in one very important way – they all found that the death penalty system was much more expensive than a life without parole (LWOP) system. The costs vary greatly from state to state and study to study, but it would be safe to say that on average the death penalty system is probably at least two or three times as expensive as an LWOP system, considerably more in some states and perhaps a little less in others. … It is also clear that if the death penalty system is retained the total cost of the system will continue to increase exponentially even as the number of cases decrease.
(Waldo, 2018, p. 327)
There has never been an exhaustive and comprehensive study of the cost of the death penalty for the state of Florida. The best study in Florida was done by the Palm Beach Post in 2000. At that time they calculated that the death penalty was costing the state of Florida $51,000,000 more per year than it would cost to give every death row inmate a life sentence without any possibility of parole (Date, 2000).
Assuming those same numbers were used each year since the death penalty was reinstated in 1979 the total cost would be $1,989,000,000 from 1979 through 2018. There has been a total of 97 executions in Florida during this time period so the average cost to the state of Florida would be $20,505,155 per execution.
A recent California Legislative report said the death penalty costs 20 times more than a life sentence without parole (CCFAJ, 2008, p. 84). A report presented in 2010 and updated in 2015 on FOX News reviewed many of the studies on the cost of the death penalty available at that time. The report stated, “Every time a killer is sentenced to die, a school closes…. Forget justice, morality, the possibility of killing an innocent man or any of the traditional arguments that have been part of the public debate over the death penalty. The new one is this: The cost of killing killers is killing us” (Barnes, 2015). One might ask, how many lives could be saved, how many pre-delinquents could be diverted, and how many crimes could be prevented, if the money spent on the death penalty were re-allocated into more worthwhile endeavors?
THE DEATH PENALTY WILL EXECUTE INNOCENT PEOPLE
If the death penalty is used the execution of an innocent person is inevitable. How many executions of innocent people are acceptable? Since 1972 there have been 164 people exonerated from death row, 28 of these from the Florida death row, more than any other state. Most of these people probably would have been executed if it were not for luck and the extreme efforts of people working outside of the criminal justice system.
In Florida there have been 97 executions and 28 exonerations since 1972. This means that for every ten people executed there have been three or four people on death row who were found to be innocent and exonerated. Some of these exonerations occurred after many years on death row, some after having their death warrants signed. For example, James Richardson was on Florida’s death row for 21 years before he was exonerated and Frank Lee Smith for 14 years, but Smith died on death row before he was exonerated. In Ohio, it took 39 years before Wiley Bridgeman and Kwamc Ajamu were exonerated (DPIC, Innocence).
At least 27 people are believed to possibly () be innocent that have been executed in the United states since the Gregg decision in 1976. (Bohm, 2012, p. 219-236). Seven of these executions occurred in Florida. (Robert Sullivan (1983), James Adams (1984), Willie Jasper Darden (1988), Roy Stewart (1994), Bernard Bolender (1995), Leo Jones (1998), and Bernie Demps (2000). Jesse Tafero (1990) is also included on this list by some (Radelet, Bedau, and Putnam, 1992).
Two former Texas District Attorney’s, Grant Jones and Sam Milsap, now oppose the death penalty because they believe they probably sent innocent men to their death. Estimates of the percentage of people executed who are innocent ranges from .027% to over 6% and there is not agreement among the experts, but most say between 2% and 5%. Despite differences in their approaches and assumptions, however, they all agree that statistically, it is impossible to create a system by which an innocent person is never executed. Even Justice Scalia agreed with this but he came up with a very low (and false) percentage of .027% (Risinger, 2007).
THE DEATH PENALTY IS NOT USED FOR THE “WORST OF THE WORST”
Some proponents of capital punishment say they don’t really like the death penalty but in extreme cases, for the ‘worst of the worst” murderers, it is the only appropriate punishment. However, with only minimal forethought it is obvious that the death penalty is not used for people who committed the “worst of the worst” murders. Most would agree that contract killers who are paid to kill, and have killed many people for money, just as ‘a job’, are clearly among the “worst of the worst” murderers.
A quick inspection, however, finds that these multiple murderers are almost never executed. Oscar Veal was a contract killer for a large drug ring and murder-for-hire operation. He was convicted of seven counts of murder and eight counts of racketeering conspiracy. However, in exchange for testimony about a drug organization prosecutors recommended a sentence of 25 years in prison. For Veal, killing was simply a job. In his trial testimony he said, “Even though it may sound sick, that’s the way … we looked at it.” Veal’s attorney cited other examples in which sentences were reduced in exchange for valuable information.
- Phillip “Crazy Phil” Leonetti, served just 5 years despite a criminal record that included 10 murders.
- Salvatore “Sammy the Bull” Gravano, was sentenced to only 5 years despite his involvement in 19 murders and other crimes. (McElhatton, January 14, 2011).
- One of the most notorious contract killers was referred to as the ‘Ice Man’. He had murdered over 200 people as a paid killer, yet he did not get the death penalty (Carlo, 2009).
THE DEATH PENALTY HAS NOT BEEN FOUND TO BE A DETERRENT
If the murder rates for death penalty states are compared to abolition states for virtually any year, the death penalty states always have a higher murder rate than the non-death penalty states.
|Death Penalty States||Abolition States|
The murder rates vary greatly from year to year for a lot of different reasons, but the rates are virtually always higher in death penalty states than they are in abolition states regardless of the time period. These results obviously do not support deterrence.
When states have abolished the death penalty the murder rate has declined more often than it has increased after the abolition. The rate of law enforcement officers murdered is normally about the same in death penalty and abolition states, and frequently even less in abolition states. (All of the above calculations are made using the FBI Uniform Crime Reports for the respective years.)
More recent research on the deterrent effect of the death penalty has had mixed outcomes. An early review of these research studies by Waldo (1981) said that most studies found no effects, some studies found deterrent effects, and some studies found “brutalization” effects suggesting the death penalty increased rather than reduced murders.
More recently, a report released on April 18, 2012 by the National Research Council of the National Academies of Science reviewed all of the research that has been conducted on deterrence and the death penalty and found that all of these studies were flawed in several ways. The committee concluded “that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates”. The committee recommended that this research “should not influence policy judgments about capital punishment” (National Research Council, 2012, p. 2). The most recent review of this body of research concluded, “In sum, the research evidence and moral arguments fail to support deterrence as a legitimate punishment for homicide. There is no credible evidence for execution as a deterrent to homicide” (Vito and Vito, 2018, p. 180).
THE DEATH PENALTY CREATES SEVERAL STICKY PROBLEMS
The U.S. Supreme Court has ruled that it is unconstitutional to execute those under the age of 18 (Roper v. Simmons, 2005), those who are ‘insane’ (Ford v. Wainwright, 1986), and those who are ‘retarded’ or mentally deficient (Atkins v. Virginia, 2002). People in these categories are deemed incapable of making mature, adult decisions and are therefore not responsible for some of their actions.
However, determining which mentally ill, mentally deficient, PTSD, and youthful offenders deserve to be executed has become a very “sticky problem”. Insanity, for example, is a legal term, not a medical or psychiatric term, and the criminal justice system continues to send mentally ill people to death row. If the defendant can get a psychiatrist to represent him it becomes a contest between dueling psychiatrists and the outcome is unpredictable. In terms of age at the time of the crime, a person could be ineligible for execution on one day but on the next day they could be eligible if the crime occurred on their 18th birthday. For an 18-year-old it is another decision that is up to the prosecutor and depends more on where and when the crime occurred than the nature of the crime or characteristics of the offender.
Mental deficiency depends on an IQ score and if it is one-point higher than an arbitrary range (70 +/- 5 points) the person would be eligible for execution. Where should the line be drawn between those eligible and ineligible for execution? Different prosecutors and different judges make these determinations in different ways resulting in different decisions Each of these “sticky” problems is difficult for the criminal justice system to deal with and occupy a lot of time and utilize scarce criminal justice resources. All of these problems would be eliminated simply by the abolition of the death penalty.
THE DEATH PENALTY DOES NOT REDUCE VICTIM FAMILY SUFFERING
Most families who had a member murdered and go through the experience of the offender being executed don’t seem to find the closure they need. The death penalty process takes many years to evolve and sometimes new trials, new testimony by family members, the reliving of old memories, renewed grief and suffering, and sometimes even guilt feelings after the execution. Many survivors of homicide do not want the person who murdered their family member to be executed. They say it is one more death they must deal with, it will not bring back their family member, and it slows down the grieving and healing process so they can go on with their lives. Some say they would like to see the money spent on the death penalty used instead to help the family members of the victims in their recovery process or to help solve some of the ‘cold case’ murders that happened in the past.
Many organizations in favor of abolition of the death penalty are led by people who had someone in their family who was murdered, and virtually all of these organizations have active members who had someone in their family who was murdered. Renny Cushing, a former member of the New Hampshire House of Representatives, whose father was shot and killed is head of such a group in New Hampshire. He was a sponsor of an abolition bill that passed in the NH legislature only to be vetoed by the Governor.
Many family members of homicide victims think of restorative justice, not revenge. Many of the survivors of homicide have found that although nothing can ever eliminate the pain that they suffer, the concept of restorative justice reduces the pain of their loss, brings them closer to closure, provides more peace of mind, and lets them go on with their lives better than living with constant hate for the offender and the desire for revenge and retribution.
THE DEATH PENALTY CREATES COLLATERAL DAMAGE
The death penalty harms many people, including jurors, investigators, police officers, prison staff, attorneys, judges, witnesses, governors, relatives and friends of victims and defendants, as well as all concerned citizens. A recent book devoted entirely to all of the different groups of people harmed by the death penalty is: Bohm, Robert, Capital Punishment’s Collateral Damage, Carolina Academic Press, 2013. It should be fairly obvious that family members and friends of the person on death row are “collateral victims” of the death penalty and it may be equally obvious that the attorneys and volunteers that worked on the case are also “collateral victims”. But prison employees are probably a category that most people do not think of as being “collateral victims” of the death penalty. Upon closer inspection, however, it is obvious that there are many such victims.
Ron McAndrews, warden at Florida State Prison, who resigned because of his experience with the death penalty, said in an interview –
It was getting to me, but ‘I had some good crutches…. there was the red wine, cognac, and pills. Thank God for a very supportive wife. The scars are so goddamn clear it’s scary. All just so a governor could pound his little chest and scream, ‘Vote for me because I’m hard on crime.’…. suddenly I couldn’t sleep at all. Not without drinking a lot of liquor. A lot of wine. Not without taking sleeping pills…. It was starting to get really bad, because, mixed in with all this, I started to have some horrible nightmares. It was the faces of the men that I executed. I woke up and saw them literally sitting on the edge of my bed. I’d moved over to make room for them. They didn’t say anything to me. They just looked.”
Even Governors are not immune from the “collateral damage” inflicted on others by the death penalty. “After running for governor as a supporter of the death penalty, (Arkansas) Gov. Mike Beebe said Wednesday that the experience of signing a death warrant for the first time caused his thinking on the issue to ‘evolve’ and that he would sign legislation outlawing the punishment if legislators were to send him such a bill…. Beebe said he changed his mind about the death penalty after having to sign his first death warrant” (M. Stratford, January 16, 2013). Beebe signed eight death warrants but the courts delayed all eight.
Correctional officers who work every day with prisoners on death row, even those who support the death penalty, also suffer collateral damage.
Jerry Givens (was a Virginia correctional officer who) executed 62 people…. Givens pushed the button. He saw (the inmate’s) body spasm through the window. And then it was over. He had taken his first life. Inevitably, Givens said the emotion of an execution would come flooding back.
…”Ultimately, though, it was a man he didn’t execute who would make the biggest impression. Earl Washington Jr. was sentenced to death in 1984…. Just days before his scheduled execution in 1985, lawyers secured a stay based on doubts about his guilt. In 1993, DNA tests provided strong evidence that Washington was not the killer…. making him the first person on Virginia’s death row to be exonerated by DNA evidence…. ‘The fact that you had the entirely wrong person was a revelation to some people.’ The man who would have been Washington’s executioner was one of them. Givens said the case shook his faith in the justice system. He came within days of putting an innocent man to death. ‘If I execute an innocent person, I’m no better than the people on death row,’ Givens said…
“Nevertheless, he still wonders whether there were any innocents among the 37 people he executed via the electric chair and the 25 by lethal injection. The man who prayed for the forgiveness of each of the condemned said he may need it himself. ‘The only thing I can do is pray to God to forgive me if I did,’ Givens said. ‘But I do know this — I will never do it again’ (Jouvenal, J., 2013).
Most major religious organizations oppose capital punishment. Among these are the: American Baptist Churches in the U.S.A., American Friends Service Committee, American Jewish Committee, Buddha Dharma Education Association, Buddhist Peace Fellowship, Christian Church (Disciples of Christ), Church of the Brethren, Episcopal Church, Evangelical Lutheran Church in America, Florida Conference of Catholic Bishops, Florida Council of Churches, Friends United Meeting, General Conference Mennonite Church, The Moravian Church, National Council of the Churches of Christ in the U.S.A, Orthodox Church in America, Presbyterian Church (U.S.A.), Reformed Church in America, Unitarian Universalist Association, United Church of Christ, and The United Methodist Church.
There are 17 death penalty offenses in the Old Testament: Adultery, Attacking One’s Parents, Bestiality, Blasphemy, Contempt of Court, Cursing One’s Parents, Desecration of Sabbath, Disobeying One’s Parents, Homosexuality (only for males), Idolatry, Incest, Kidnapping, Loss of Virginity While Living With Parents, Murder, Prostitution by Priest’s Daughter, Witchcraft, and Worshipping Other Gods. (See Bohm, 2012, pp. 313-314). If the death penalty is justified on the basis of the Old Testament, shouldn’t all of these behaviors receive the death penalty today? But the Old Testament is inconsistent because there are examples of murderers that were not punished by death. Biblical figures Cain, Moses, and David all murdered someone, but they were not put to death for these murders.
On the other hand, the New Testament does not support the death penalty. Instead, Jesus talks about love, mercy, repentance and forgiveness. For example: (NIV) Matthew 5:38-39 – “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also.” (NIV) John 8:7 – “When they kept on questioning him, he straightened up and said to them, ‘Let any one of you who is without sin be the first to throw a stone at her’.” (NIV) Romans 12:17-21 – “Do not repay anyone evil for evil.…On the contrary: If your enemy is hungry, feed him; if he is thirsty, give him something to drink. Do not be overcome by evil, but overcome evil with good.” (NIV) Matthew 5:7 – “Blessed are the merciful, for they will be shown mercy.”
The United States is the only major Christian country that uses the death penalty. What would Jesus have done? Who would Jesus have executed?
THE DEATH PENALTY DOES NOT REQUIRE RETRIBUTION
The concept of retribution, lex talionis, was developed by the early Babylonians and was present in both biblical and early Roman law. This concept says that criminals should receive punishment equivalent to the injuries and damages they had inflicted upon their victims. Many early societies sometimes applied this “eye-for-an-eye” principle literally, but apparently not always. Lex talionis, an eye for an eye, a tooth for a tooth, a life for a life is an old concept and it is still the strongest argument for most people who support capital punishment. But why should it apply only to the death penalty, “a life for a life”? If retribution is to be taken seriously, we would rape the rapist, put out the eye of the person who blinded someone, knock out a tooth, break an arm, cut off a hand, rob the robber, steal from the thief, etc. We don’t do any of those things because it would be ridiculous to do so. The same is true of murder, it is ridiculous to kill someone because they killed someone. On closer examination, however, it is obvious that we really don’t follow lex talionis even for murder. Very few murderers are executed. According to the Uniform Crime Reports there were 16,617 murders in 2017 and there were 23 executions. If we were really following a life for a life philosophy, there should have been 16,617 executions, an average of 46 executions per day for each of the 365 days of the year (including Christmas and all other holidays.). For a more elaborate discussion of retribution see (Kain, George F. and Dale Recinella, 2018).
THE DEATH PENALTY IS IMMORAL
It is morally wrong to kill and the state sets a bad example for its citizens by killing. Why should the state kill people to show that killing people is wrong? Perhaps no one has voiced this better than Cesare Beccaria in his classic book published in 1764. “The death penalty cannot be useful, because of the example of barbarity it gives men. It seems to me absurd that the laws, which are an expression of the public will, which detest and punish homicide, should themselves commit it, and that to deter citizens from murder, they order a public one” (Beccaria, 1764, 1963). The commission of any homicide is immoral, and the carrying out of an execution by the state is an act of homicide and clearly immoral.
THE DEATH PENALTY IS A MAJOR DISTRACTION
The death penalty distracts the criminal justice system, the legislature, other state leaders, and society from more important legal and social issues. More importantly, perhaps, it diverts limited financial resources away from more effective ways to reduce murder and other violent crime. It can be argued, indirectly, even without the brutalization possibility discussed previously, that the death penalty increases crime rather than decreases it. Considering the high cost of the death penalty, and the research on deterrence previously discussed, more crime can be prevented without the death penalty than with it. The large body of research on deterrence and crime starting with Beccaria in 1764 notes that there are three components to deterrence; the certainty of punishment, the celerity (swiftness) of punishment, and the severity of punishment. The death penalty is only concerned with the severity of punishment. All of the research that has been conducted, beginning with Becarria’s discussion of deterrence, has shown that the certainty and swiftness of punishment are much more important than the severity of punishment in preventing any kind of crime, murder included. Unless a potential murderer believes there is a high probability they will be caught (certainty), then the severity (death penalty) of punishment is irrelevant. Removing the distraction of the death penalty, and using the money saved to increase the certainty and swiftness of punishment, can solve and prevent more crimes. Most police chiefs would likely agree with this statement.
The AMERICAN BAR ASSOCIATION has called for a moratorium on the death penalty “call(ing) upon each jurisdiction with capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures that are consistent with longstanding American Bar Association policies” (ABA, 1997). After conducting studies in several death penalty states the ABA says the “efforts to forge a fair capital punishment jurisprudence have failed. Today, administration of the death penalty … is … a haphazard maze of unfair practices with no internal consistency” (Carelli, 1977).
The AMERICAN LAW INSTITUTE removed the death penalty (Sect. 210.6) from the Model Penal Code because they concluded it could not be fixed. This statute was the strongest legal support for the death penalty and was used by the states in re-writing death penalty statutes after the Furman decision. The death penalty no longer exists in the Model Penal Code.
MURDERERS WILL STILL DIE, they will never go free. They will receive a sentence of life in prison without any possibility of parole and will die in prison. It will take longer for them to die, give them more time to regret what they have done, more time to try to make amends for their mistakes, perhaps work on some meaningful hobby’s or useful projects that make money for the state, and as previously discussed, at the same time save the state of Florida a lot of money that that goes into the capital punishment process.
Researchers should STUDY INCARCERATED MURDERERS in order to learn how to better prevent future murders. Physical scientists, social scientists, medical doctors, psychiatrists, criminologists, etc. should be given the resources and opportunities to study serial murderers and contract murderers, as well as more mundane forms of murder. We still know very little about psychopathy/sociopathy and other characteristics that might lead to such murders. Yes, some of these people have committed horrendous crimes and they deserve serious punishment and society needs to be protected by preventing them from committing more such crimes. But at the same time, we need to learn from these tragedies so we can prevent similar crimes in the future. If we can learn things that would prevent even one serial or contract killer from ever taking multiple lives it would be a major step forward.
At a national level, we should be concerned by THE COMPANY WE KEEP. The following countries are those that use the death penalty the most: China, Iran, United States, Iraq, Saudi Arabia, Sudan, North Korea, Syria, Yemen, Libya, Somalia, Afghanistan, and Viet Nam. Only one European country and only 20% of American countries still have the death penalty, but most of these countries use it very seldom.
The death penalty is rapidly DECLINING IN USE. This is happening in the U.S. and around the world. Twenty states in the U.S. have abolished the death penalty, 8 in the last 12 years. Three other states are currently under a gubernatorial moratorium. Forty states haven’t used it in the last 5 years and only eight states used capital punishment in 2018. Today, 142 countries no longer use the death penalty, compared to only 17 countries that didn’t use the death penalty in 1970.
This is not a LIBERAL OR CONSERVATIVE ISSUE; many conservatives and conservative organizations oppose capital punishment. “In 2019, conservative legislators are leading the call for death-penalty abolition in conservative-leaning states such as Wyoming, Montana, and Kentucky, and playing a critical role in bipartisan efforts to repeal or reform capital punishment in Virginia and New Hampshire” (DPIC, Feb. 19, 2019).
A FINAL THOUGHT
There are not many problems facing the state of Florida that can be solved just by passing a law, but this is an easy one to fix. Abolish capital punishment and solve a lot of human problems in the process!
For questions or for more information about any of these points, please contact:
Dr. Gordon P. Waldo
Professor Emeritus, College of Criminology & Criminal Justice,
Florida State University, Tallahassee, FL 32306
email@example.com – Phone (850) 228-1200.
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