"From this day
forward, I no longer shall tinker with the machinery of death."
- Justice Harry Blackmun
Twenty years ago, Supreme Court Justice Harry Blackmun wrote an emotional dissent from the Court's decision not to hear the appeal of a mentally impaired Texas inmate on death row. Blackmun had become convinced that the death penalty could no
longer be carried out in a constitutional manner in our country.
Several recent news items brought Justice Blackmun's dissent to mind.
There may yet be some hope that the United States will join the rest of the civilized
world in abolishing the death penalty.
On July 16, a
federal judge ruled California's death penalty unconstitutional under
the Eighth Amendment's prohibition of "cruel and unusual
punishment". From CNN and KFOR: "Judge Cormac J.
Carney vacated the 1995 death sentence of Ernest D. Jones...Carney wrote: 'Allowing this system to continue to
threaten Mr. Jones with the slight possibility of death, almost a
generation after he was first sentenced, violates the Eighth
Amendment's prohibition against cruel and unusual punishment...In
California, the execution of a death sentence is so infrequent, and
the delays preceding it so extraordinary, that the death penalty is
deprived of any deterrent or retributive effect it might once have
had...Such an outcome is antithetical to any
civilized notion of just punishment.' "
Through year-end 2013, there had been 317 post-conviction DNA exonerations in the United States. Earlier this month, we
witnessed yet another case in which DNA evidence was used to exonerate two innocent men. The New York Times reported on September 2,
"Thirty years after their convictions in the rape and murder of
an 11-year-old girl in rural North Carolina, based on confessions
that they quickly repudiated and said were coerced, two mentally
disabled half brothers were declared innocent and ordered released
Tuesday by a judge here. The case against the men, always weak, fell
apart after DNA evidence implicated another man whose possible
involvement had been somehow overlooked by the authorities even
though he lived only a block from where the victim’s body was
found, and he had admitted to committing a similar rape and murder
around the same time." One brother was on death row and the other
had served 30 years of a life imprisonment.
This North Carolina case was
actually cited in 1994 by Justice Antonin Scalia justifying the use
of the death penalty even in the case of mentally impaired defendants. Heather Digby Parton writing at Salon.com excoriates Scalia and his views on the death penalty, which include
his contention that the state is not doing anything immoral if it
executes an innocent man as long as he has been given a fair trial.
"Worst of all, Justice Scalia and other death penalty proponents
who find nothing immoral in the state’s conscious, coldblooded
taking of a life are equally unconcerned that they might be taking
the life of an innocent person....This man claims that he could not
be a judge if he thought his participation in the death penalty was
immoral and yet he does not believe it matters under the Constitution
if the state executes innocent people. How on earth can such a
depraved person be on the Supreme Court of the United States? On what
basis can our country lay claim to a superior system of justice and a
civilized moral order when such people hold power?"
The problem goes well beyond
Justice Scalia. Although polls are showing a continuing downward trend towards the death penalty, 55% of the country still approve of the
"state's conscious, coldblooded taking of a life." As a
nation, we have a very long way to go before we brag about our moral
superiority. Our executions in 2013 were exceeded only by China, Iran, Iraq, Saudi Arabia, and North Korea. In fact, the United
States is one of just 22 nations that executed prisoners last year.
The death penalty has been abolished outright or is under a
moratorium in 155 countries. Just 40 countries still maintain a
death penalty. With the sole exception of the United States, all of these 40 nations are in Asia, Africa or the
Caribbean.
There was a brief period,
from 1972 until 1977, when the death penalty was suspended in the
United States. By a 5 to 4 vote, the Supreme Court in its Furman
vs. Georgia decision voided the death penalty statutes of the 40
states that had them. While we won't ever have again those
enlightened justices (Douglas,
Brennan, Stewart, White and Marshall), it should be noted that one of
the dissenting justices in Furman vs. Georgia was Blackmun. Twenty-two years after
that dissenting vote, Blackmun decided that the death penalty could
not be imposed in a manner consistent with the Constitution. If some of the justices currently in favor of the death penalty change
their opinions, that may be enough to declare it unconstitutional
once and for all.
Demographically, younger people tend to oppose the death penalty more than older people. For example, a Barna Group poll found that just 23% of practicing Christian millenials supported the death penalty. They see it as a human rights as well as a moral issue.
Many religious leaders have spoken against the death penalty and that same Barna Group poll found that there was a significant difference in opposition to the death penalty between practicing Christians and the overall population. Perhaps no church has been more clear in its opposition to the death penalty in recent decades than the Catholic Church. In 1999, Pope John Paul II speaking at a Papal Mass in St. Louis, Missouri, said,"The new evangelization calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate and serve the Gospel of life in every situation. A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil. . . . I renew the appeal I made . . . for a consensus to end the death penalty, which is both cruel and unnecessary." In 2005, the National Conference of Catholic Bishops wrote in A Culture of Life and the Penalty of Death, "Twenty-five years ago, our Conference of bishops first called for an end to the death penalty. We renew this call to seize a new moment and new momentum. This is a time to teach clearly, encourage reflection, and call for common action in the Catholic community to bring about an end to the use of the death penalty in our land."
Demographically, younger people tend to oppose the death penalty more than older people. For example, a Barna Group poll found that just 23% of practicing Christian millenials supported the death penalty. They see it as a human rights as well as a moral issue.
Many religious leaders have spoken against the death penalty and that same Barna Group poll found that there was a significant difference in opposition to the death penalty between practicing Christians and the overall population. Perhaps no church has been more clear in its opposition to the death penalty in recent decades than the Catholic Church. In 1999, Pope John Paul II speaking at a Papal Mass in St. Louis, Missouri, said,"The new evangelization calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate and serve the Gospel of life in every situation. A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil. . . . I renew the appeal I made . . . for a consensus to end the death penalty, which is both cruel and unnecessary." In 2005, the National Conference of Catholic Bishops wrote in A Culture of Life and the Penalty of Death, "Twenty-five years ago, our Conference of bishops first called for an end to the death penalty. We renew this call to seize a new moment and new momentum. This is a time to teach clearly, encourage reflection, and call for common action in the Catholic community to bring about an end to the use of the death penalty in our land."
(Just a thought - six of the justices on the Supreme Court (including all five conservatives) are Roman Catholics. Okay, I get the need for separation of
Church and State but surely one's conscience should play some role in deciding the justice and fairness of a law or statute.)
Finally, there are the
justice, fairness and practicality arguments against the death penalty.
- It has never been shown to be a deterrent.
- It is seldom applied to individuals who can afford a strong defense team and is disproportionately applied to persons of color. (The total death row population as of April 2014 was 43% white, 42% black, 13% Latino, and 2% other races.)
- Innocent people have been executed.
- The cost of capital cases are prohibitively high.
Although a SCOTUS ruling against the death penalty does not appear imminent, the states are taking action. The death penalty has now been abolished in 18 states and the District of Columbia. Moratoriums are currently in effect in another 7 states, and 2 states have not executed a prisoner in more than 15 years. (Source: The Death Penalty Information Center)
Our Constitution, human
rights' considerations, the teachings of religious leaders, the
example of the world's other democracies, and justice, fairness, and
practicality concerns all argue for an end to the death penalty. This
barbaric and unnecessary practice, this cruel and unusual
punishment, this "conscious, coldblooded taking of a life"
by the state is a blot on our national character. We should rejoin
the democracies of the world in barring it as soon as possible. If
not now, then we'll need to wait until our wiser, more humane, less vengeful sons and
daughters bring it about.
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