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Commentary

Death to Capital Punishment


     
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A federal judge appointed by President Reagan, recently noted that “in the past decade, substantial evidence has emerged to demonstrate that innocent individuals are sentenced to death, and undoubtedly executed, much more often than previously understood.” In 2001, another federal judge also predicted that a criminal justice system with the death penalty would inevitably execute innocent people.

Statistics add credence to such statements. More than 100 people on death row have been exonerated by new evidence—in some cases, by DNA testing. Perhaps that’s why juries recently have been shying away from imposing the death sentence. Of the last 20 federal capital cases, juries have invoked the death penalty only once.

So why is the death penalty still on the books in America? The United States is becoming an international pariah because it is the last Western industrial nation to continue the grisly spectacle. The retention of the death penalty by the government—juries can mete out the death penalty but legislatures keep the option open to them—seems to serve two purposes: revenge and deterrence. Proponents of the death penalty frequently ask the question, “If you had a loved one that was a victim of a heinous capital crime, wouldn’t you want the perpetrator put to death.” To this question, I would answer “in all probability, yes and throw in some torture beforehand for the guilty party.” Many relatives of victims would probably secretly agree with my likely sentiments. I have no sympathy for vicious people who commit such crimes, but by opposing the death penalty, I am protecting the rights of all Americans—not just those of violent criminals.

The feelings of the victim’s loved ones are understandable but, in society’s best interest, cooler heads need to prevail. Most proponents of the death penalty are probably motivated by revenge—that is, by the feeling that the guilty party deserves it. The guilty party may, in fact, deserve the ultimate sanction, and the Fifth Amendment to the U.S. Bill of Rights seems to indicate that persons can be deprived of their life as long as they are indicted by a grand jury and are given the benefit of due (legal) process. (The due process provision, however, may be violated by the way the death penalty has been implemented—the accused is not allowed to present new evidence that could lead to a reversal of the sentence.) But is executing violent criminals advisable?

The answer is a resounding “no” because the societal benefits are too slim and the costs are too great. Other than raw revenge—which may be an acceptable goal for victims’ families, but should not be an objective for the justice system—the only acceptable goal for the government is to deter future capital crimes by others (assuming that society can be kept safe from the convicted criminal’s future crimes by life-without-parole sentencing). The vast preponderance of evidence shows, however, that capital punishment does not deter violent crimes that haven’t yet been committed. In fact, a study in one state found that certain types of murders increased after the reintroduction of capital punishment, perhaps because state executions undermine societal norms against killing people. So the major alleged benefit of the death penalty is at best nonexistent.

Moreover, the societal costs are unacceptable. Juries mete out the death penalty unfairly. The implementation of capital punishment includes discrimination on the basis of race, gender, and social class. That bias violates the Fourteenth Amendment’s guarantee that all persons will have equal protection under the law. Also, because life is so precious in American society, executing a death row inmate is subjected to years of appeal. It is actually more costly to execute prisoners than to keep them locked up for the rest of their lives. Most important, to prevent the government from oppressing the people, our judicial system was designed to err on the side of protecting the innocent, not convicting the guilty. The biggest travesty the system could imagine is executing an innocent person. Yet the multitude of people on death row who have been exonerated makes it likely that the innocent have been killed in the past and will continue to be in the future, as long as the death penalty remains on the books.

More generally, to help preserve civil liberties unique to America at a time when they are under assault in the wake of the September 11 attacks, we should question whether the government should be killing people—regardless of whether or not they are violent criminals. State sponsored killings even for capital crimes set a bad precedent for future government executions for less justifiable reasons, especially when there is little evidence to recommend capital punishment on other public policy grounds. When looking back on recorded history, it becomes apparent that government oppression has been the norm and experiments with freedom—such as ours—have been rare and fragile. It is shameful that America should still have an anachronistic, unfair, costly, and oppressive form of punishment that is making “the land of the free and the brave” a pariah in the civilized world.


Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.


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RECARVING RUSHMORE (UPDATED EDITION): Ranking the Presidents on Peace, Prosperity, and Liberty
Taking a distinctly new approach, Ivan Eland profiles each U.S. president from Washington to Obama on the merits of his policies and whether those strategies contributed to peace, prosperity, and liberty. This ranking system is based on how effective each president was in fulfilling his oath to uphold the Constitution.






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