University of Houston Law Professor David Dowís book — The Autobiography of an Execution (Twelve 2010) ñ prompted Time to ask Dow several questions about the death penalty. A couple of his answers are particularly interesting:
. . . I tell people that if you’re going to commit murder, you want to be white, and you want to be wealthy ó so that you can hire a first-class lawyer ó and you want to kill a black person. And if [you are], the odds of your being sentenced to death are basically zero. It’s one thing to say that rich people should be able to drive Ferraris and poor people should have to take the bus. It’s very different to say that rich people should get treated one way by the state’s criminal-justice system and poor people should get treated another way. But that is the system that we have.
And what about the future of the death penalty?
My prediction is that we’re going to get rid of it for economic reasons. We spend at least a million dollars more on a death penalty case than on a non-death-penalty case. In the U.S., where we’ve executed 1,200 people since the death penalty [was reinstated in 1976], that’s $1.2 billion. I just think, gosh, with $1.2 billion, you could hire a lot of policemen. You could have a lot of educational programs inside of prisons so that when people come out of prison they know how to do something besides rob convenience stores and sell drugs. There are already counties in Texas, of all places, that have said, this is just not worth it: let’s fix the schools and fill the potholes in the streets instead of squandering this money on a death-penalty case. You don’t need to be a bleeding heart to make that argument.
Supporters of the death penalty reason that there is nothing morally wrong about the state killing a person as punishment for murder where that person was lawfully convicted in a fair and accurate criminal justice process. But in making that moral justification the central tenet of their support, death penalty supporters are ignoring the glaring defects in the process that undermine their moral justification.
Tom,
“But in making that moral justification the central tenet of their support, death penalty supporters are ignoring the glaring defects in the process that undermine their moral justification.”
I don’t think that I am; I think one can support the death penalty in appropriate cases. I also think Texas should have a true “life without parole” sentencing option for juries.
I firmly believe uninterested and uncomitted juries are a big part of the problem in our system.
Tom, there is the small fact that a recent study out of Duke University and SHSU shows that the death penalty is a deterrent to murder. The study found that for every murderer executed, between 0.5 and 2.5 new murders are prevented. And that does not take into account recidivism (since dead criminals can’t kill anyone else.) reduction. Now there is the issue of false convictions to consider, and with new scientific methods coming to the fore, that should be a shrinking number of people. I am not one of those who argues that it is better that 100 guilty people walk free than one not guilty man be executed. I think it is better that we do our level best not to convict anyone unjustly but we must recognize that no system is perfect. Perfection is the enemy of good. Indeed our problem today is that the death penalty is not practiced properly. In times past, a hanging was performed in the town square and everyone in town turned out to watch. It was a very public event, and the “perp-walk” to the gallows was often punctuated by the condemned being pelted with rotten fruit and eggs by the spectators. And if the hangman miscalculated and the drop through the trap door was insufficient to snap the condemn-ed’s neck, several large men would hang off of the body of the condemned to make sure he or she died promptly. It was an embarrassing, public, and usually painful experience for the condemned. It served the entire community as a reminder what was in store for those who broke the law. And it wasn’t just murder that elicited the death penalty either. Rape and even property crimes such as horse or cattle theft were justification for the hangman’s noose. I would argue that the death penalty today is entirely too “humane” and has lost much of it’s deterrence as a result.
Justice isn’t, at bottom, the result of a costs-benefits analysis. Nor is it exclusively about deterrence. Sometimes retribution needs to be exacted on behalf of the people simply because that’s what’s fair and right. And sometimes no retribution short of execution is adequate to fit the crime.
I’m one of David’s fans, but that doesn’t stop me from pointing out the inconsistency between his arguing, on the one hand (and on behalf of his death-row clients) that every substantive and procedural nicety must be observed in capital cases, and on that other (in the sort of policy argument he makes in TIME) that it’s awfully expensive to prosecute and convict capital defendants. This is very much like the Obama Administration trying to justify the use of civilian courts for trying terrorists on grounds that there have been too few military commission trials completed, whilst the very reason so few military commission trials have been completed is that the same damned (and damned unethical) lawyers now at the DoJ were busily impeding and trying to tear down the military commission system originally passed by Congress. David surely is a good enough lawyer to keep a straight face while urging the court to grant mercy to his parents-slaying client on the grounds that he’s a poor orphan, but that doesn’t mean I have to keep a straight face while listening.
(BTW, happy birthday, Tom.)