On Capital Punishment

Over the last week I have really been thinking about the death penalty and my stance on it. In my opinion there are several stances to take on the issue; aggressively against, passively for and aggressively for. The people who are against it divide into two camps; there are people who feel it is morally wrong and people who feel it is technically wrong. The people who think it is technically wrong believe the current implementation is not working properly due to discrimination and unacceptable margins of error. People who are passively for it have no problem with it or have no thoughts on the matter. People who are aggressively for it think it should be expanded to states without it or allow more crimes to qualify for it.

I propose a five pronged criminal justice system to justify criminal punishment. Any punishment must qualify on any of the following qualifications;
1. Justice - Punishment for the crime
2. Retribution - Payment to the people who have been wronged.
3. Rehabilitation - Reform the criminal so they can safely return to society
4. Security - Protect citizens from the criminal
5. Deterrence - Prevent similar crimes from occurring again

The death penalty offers no retribution. That is the domain of our civil justice system where the courts determine the monetary value of wrongs. The death penalty is obviously not rehabilitation, nor is it security; people are as safe from an imprisoned criminal as a dead one. The last two, justice and deterrence are the only remaining grounds we can argue from. Justice is in my view the harder to define so I will proceed with deterrence and return to justice later. There is one other question that needs to be addressed but I will not do so here; should the state have the power to kill citizens? For some this is a non issue, others may find it interesting to answer.

Deterrence
Does capital punishment deter crime? Some argue that if we broadened the death penalty for all homicide and manslaughter cases then we would reasonably expect to see a drop in murder rates, therefore the death penalty is a deterrent. I concede the point that such a system would have less crime and would go on to say that if we instituted mutilation type punishments for other crimes such as taking hands from thieves or tongues from hucksters we could see drops in those crimes as well. But we are not talking about such a justice system, we are talking about our current justice system and the role of capital punishment. To be able to understand the role of capital punishment we first need to understand what crimes qualify for capital punishment. Here is a state by state breakdown of qualifications. The upshot of it is that not all murder cases qualify; there must be other aggravated charges. If someone tortures and then kills someone they would qualify because they are guilty of the charges related to torture and the murder. It is important to note that not every murder case qualifies for capital punishment. Our system tries to ensure only the most brutal crimes are punishable by death.

I will sketch out a fictionalized death penalty case to pose a question about deterrence; A man kidnaps a woman, steals her car, drives somewhere, rapes her and finally kills her. To make the case for deterrence one must argue there are people who would commit the same or a similar crime were it not for capital punishment. This is impossible to know because we are unable to read the minds of every person out there. Has someone thought about kidnapping and murdering someone (or some other similarly heinous crime) but decided against it specifically because they feared the death penalty - but not incarceration? I do not know. However, we can analyze crime statistics. We have states both with and without the death penalty in similar geographical locations and population densities. We also have states who have flipped flopped back and forth between having a death penalty and not having a death penalty. If we compare murder rates between states and time periods we should expect to see drops in murder rates if the death penalty is a deterrent.

I discovered web site which has put together several comparative studies. What they demonstrate is that states without capital punishment have lower murder rates than states with it. In one comparison they noted that in every year from 1990 the murder rate was higher in states with a death penalty. They excluded New York and Kansas who adopted the penalty in 1994, if they included those two states then the difference is greater still. There is one important point to address; population density. Since crimes rates are higher in urban areas than suburban it is unfair to compare states with rural populations to states with dense populations. I looked up the population densities of states without the penalty and clustered them into several groups. I then did the same for states with the death penalty. I then compared states with similar population densities from both groups and tried to choose states within a close geographical proximity. (Scroll down a bit to see results)

State	Rank of Population Density	Murder rate per 100,000
GROUP 1
Without Penalty
Alaska	50th	6.0
North Dakota	47th	1.9
With Penalty
Nebraska	42nd	3.2
Idaho	44th	1.8
South Dakota	46th	1.3
Montana	48th	3.3
Wyoming	49th	2.8
Conclusion: Alaska distorts the comparison because it has so much uninhabited land. The state is larger Europe and much of it is uninhabited so it gets counted as an extremely rural state which is probably unfair. North Dakota compared with other states close to its density and location reveals no difference in murder rate; certainly not enough to conclude the penalty is a deterrent in the midwest.
GROUP 2
Without Penalty
Hawaii	13th	1.7
Michigan	15th	6.1
With Penalty
Indiana	16th	5.5
California	12th	6.8
Illinois	11th	7.1
North Carolina	17th	6.1
Conclusion: Hawaii is noisy like Alaska; it is part of the US but has a different culture and background. Notice that Alaska had a higher than expected murder rate in its group while Hawaii is the mirror image. Comparisons of Michigan with other states reveals no difference.
GROUP 3
(I included Maine because it is so close to the other states)
Without Penalty
Massachusetts	3rd	2.2
Rhode Island	2nd	2.3
Maine	38th	1.2
With Penalty
New Jersey	1st	4.7
Connecticut	4th	3.0
Maryland	5th	9.5
New York	6th	4.9
Delaware	7th	2.9
Pennsylvania	10th	5.3
Conclusion: Numbers speak for themselves
GROUP 4
Without Penalty
Minnesota	31st	2.5
Vermont	30th	2.3
West Virginia	29th	3.5
Iowa	33rd	1.6
Wisonsin	24th	3.3
With Penalty
Missouri	27th	5.0
Kentucky	23rd	4.6
Mississippi	32nd	9.3
Oklahoma	35th	5.9
South Carolina	21st	7.2
Oregon	39th	1.9
Kansas	40th	4.5
Conclusion: Numbers speak for themselves
Notable States With Capital Punishment
Louissiana	22nd	13.0
Texas	28th	6.4

It should be obvious to the rational observer by now that comparative studies between states with similar population densities show no real differences in murder rates attributable to deterrence. Group 3 is a particularly good cluster because the states are all in the Northeast to eliminate for geographical differences.

Another comparative method to study is for states who had capital punishment and got rid of it or vice versa. New York, California and Kansas all adopted the penalty with no noticeable drop in murder in recent years.

In spite of the above data, some people insist capital punishment is an effective deterrent; they use an analysis method called econometrics. There are problems with this analysis as detailed here. I won't broaden the discussion on econometrics but I ask anyone who still believes capital punishment is a deterrant to conduct a thought experiment; if the comparative data just presented validated that it was a deterrence would you still favor the statistical mangling of econometrics? If comparative studies demonstrated that states without the death penalty had significantly higher murder rates than states with similar geographical location and population density and a death penalty? Or if comparisons of states like Kansas, California and New York who instituted a death penalty had decreases in their murder rates following capital punishment would you still insist on econometrics? I think the matter of deterrence has been addressed adequately here and only by the most tortured logic could one conclude that it is a deterring factor for would be criminals.

Justice: "That’s what they do to niggers who rape white women."

That leaves us with justice; is the death penalty just? I can not argue that some criminals do not deserve death for their crimes. This is the moral argument. But there are other standards of justice that must be addressed other than 'punishment fits the crime.' On those accounts the death penalty is unjust. Capital punishment may pass the moral argument, but it fails the technical argument. There is a dichotomy in the system. If you believe aggravated murder deserves the death penalty, then the system serves justice for some cases. However it is unjust at the macro level with its uneven application of justice - as you will see shortly.

Statistically the death penalty heavily discriminates against minorities. They are far more likely to receive the death penalty than whites for similar crimes. Amnesty International reports "Even though blacks and whites are murder victims in nearly equal numbers of crimes, 80% of people executed since the death penalty was reinstated have been executed for murders involving white victims." The death penalty disproportionately kills poor people who can not afford adequate legal counsel to defend themselves. Blacks receive the death penalty far more than whites for similar crimes. Black on black and black on white crime is punished more than white on white and white on black. One example Amnesty uses (there is plenty more anecdotal and statistical evidence presented in their report); "African American Cornel Cooks was executed in Oklahoma in 1999 for the murder of a white woman in 1982... when the lawyer told the mentally impaired Cooks that the state was seeking the death penalty against him for the murder, Cooks did not understand what that meant. The white lawyer told him, 'that’s what they do to niggers who rape white women.'" For anyone who doubts the gross discrimination against minorities they should read the full Amnesty report (among others on the topic.) Justice is not color blind on this matter.

There is also concern about wrongful convictions. We have such a powerful government that we often do not pause and consider that it is an institution whose power is dependant on how much we allow it. The power to kill its own citizens is one of the most awesome we give it. For some, this alone is reason to oppose the penalty. However, this is a discussion of justice. It behooves us to ensure that the government is not allowed to kill innocent people or people whose crimes fail to meet the requirements for the death penalty. The number of people whose convictions have been overturned has increased in recent years largely due to DNA testing. An investigation of wrongful convictions has revealed a frightening margin of error. The inadequacies of state provided legal counsel for minorities and the poor has resulted in many cases of wrongful convictions. Political pressure to appear "tough on crime" has heightened the number of cases pushed through the system. Amnesty reports on this as well as former proponent of capital punishment Mark Furman.

Allowing innocent people to be killed by the state is certainly unjust and at a practical level we should stay executions until the system can be corrected. While similar problems plague every level of the justice system; the life and death nature of Capital Punishment warrants an even higher level of standard. In other words, it cannot be argued that we should stay temporal sentences until bias, discrimination and ineptitude can be corrected but we should stay state killing. For example, while it is intolerable to allow people convicted of using 'black' drugs such as crack-cocaine to receive far lengthier sentences than people convicted of using 'white' drugs such as powder-cocaine it is even more serious to allow the same discriminations to result in the state sponsored killing of people. As such we should abolish the penalty until the problems can be rectified; seeking instead indefinite incarceration.

I have briefly touched on these subjects because the arguments are made quite forcefully in a number of reports. The Amnesty is an eye opener. Rather than copy and paste what they say I leave it to the reader to go look for himself and decide. On account of discrimination against race and the poor and wrongful convictions the system is unjust. In many other areas of law the same discriminations exist for the same reasons; however the matter of life and death should require the utmost care and attention. I hope I have persuasively argued that on the only two grounds the death penalty can be justified on it fails. It is neither deterrent nor just. For many deterrence is not important; but for others it is used as a justification for the punishment. The more forceful argument for proponents of capital punishment is on justice. It is hard to hear about something as brutal as torture, rape, murder, etc. without feeling the killer deserves to be put to death. This is a visceral reaction; however when the application of the penalty is as uneven as is currently it is simply unjust and should be terminated.