I’m lucky enough to practice in a state where we don’t have the death penalty (not because we are noble, but because we are cheap). But the death penalty (“DP” infra) is a subject in which I think most intelligent defense attorneys have a keen interest. Now this is a very large, complex, and heavy subject– certainly better reserved for some forum more substantial than a blog post. But what the heck… I think I can lay out the same argument I spit out at non-lawyers while I’m buzzed in a bar.
Reason #1: False confessions. The threat of a prosecutor seeking the death penalty (as opposed to “only” life imprisonment) induces suspects to confess to committing murders they didn’t commit. There are many confirmed instances of this, and we will never know how many false confessions the threat of death has actually induced over the centuries. Not to mention how many guilty persons remained free while some poor shlub confessed to, and served life for, their crime.
Reason #2: Getting a fair trial is dubious. The rate of wrongful convictions in death penalty cases is higher than it is in all other criminal cases. Possibly much higher. This is due primarily to the process by which DP juries are selected. You see, DP cases require questioning of potential jurors as to whether or not they would be able to vote to put someone to death if they found them guilty. Those answering no of course, are then automatically discarded. It is difficult to imagine people getting a fair and impartial jury, when the composition of the pool has already been severely slanted by removing those jurors without the predisposition to execute. Not only that, but during the first stage of the trial process all of the jurors are asked to assume guilt as part of the hypothetical question itself– before they’ve heard or seen a single shred of evidence. While it is surely nigh impossible to quantify exactly how much that poisons the process, it surely cannot be zero.
Reason #3: It fails to promote morality. I know, I know. You probably think that this is a value-laden point that encompasses my pre-existing anti-DP view. But hear me out. No matter how you spin it… the death penalty is the government sponsored taking of life. A society simply must be a better one where the mentality is that all killing is wrong, as opposed to some killing is ok (which is what the death penalty, by catch-22, inescapably promotes). The legality of the death penalty is government endorsement of the concept of “an-eye-for-an-eye.” I think the values of a society are reflected in its laws, but its laws also have a subtle effect on the mentality of those who are subject to it. Were you to overhear a mother tell a young child it was ok to go out and bash someone in the face, provided that person had done something similar to their friend, would you really think her a good mother? Also, if the concept that some killing is justified is promoted, how often does that lead to vigilante/sick-minded individuals deciding to simply leave the government out of the process and take matters into their own hands?
Reason #4: It’s expensive. Seriously, the litigation on the front end is much greater, and the cost of appeals are exponentially higher. In fact, study after study has shown that the litigation costs associated with the death penalty far outweigh the cost of simply incarcerating someone for life. That’s across the board in every state. There is no way around this. You can’t simply take away someone’s right to appeal and call yourself a country of due process.
Two years ago the voters of Wisconsin passed (by referendum) a republican-sponsored bill- allowing the death penalty. Thankfully, to date it has not been made law. Sadly, it’s reason number four that is the case, instead of reasons 1-3.
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