June-July '00 Articles:
Death by the
State on Trial
Notes from the Cultural Wasteland
The Good Negro
A New Kind of
The CIA & KLA
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by Morris Sullivan
Impalement. Guillotine. Gallows. Firing squad. Reading those words should have sent a little shiver through you. Perhaps the word "barbaric" even crossed your mind as you read them, along with visions of black-hooded executioners and unwashed 15th century crowds, standing ignorant and blood-lustful, cheering for revenge while watching the torment of the damned as he dangled from the rope or awaited the hissing blade.
Lethal injection. Electrocution. Gas chamber.
Did you have the same reaction? Probably not. Now your mental image is of a nice clean death, attended by silk-tie-wearing officials and a doctor in a white coat, watched quietly by the friends and family of the condemned, and perhaps by the sternly resolute family of the victim.
Why the difference in reaction? As a society, we have arbitrarily decided that to cause death to a condemned man by impaling him on a stake is "cruel and unusual punishment." Yet we have convinced ourselves that having a doctor murder him by injecting him with toxic substances is neither cruel nor unusual.
Most of the rest of the developed world disagree with us. The United States is the only one, out of all the western developed nations, that still uses the death penalty. Internationally, the U.S. competes with the Democratic Public of Congo, China, and Iran for the distinction of being the most-executing nation in the world. Only six countries in the world execute people who were under eighteen years of age at the time they committed their crime: Iran, Nigeria, Pakistan, Saudi Arabia, Yemen -- and the United States.
We must continue to have the death penalty in the U.S., argue its proponents, for several good reasons. First and foremost, it is a good deterrent against violent crime, they say. If the penalty for murder is death, people are less likely to commit murder, right? We believe, too, that the punishment should fit the crime -- an eye for an eye and a tooth for a tooth, says the Good Book. What better way, then, to punish the crime of taking a human life?
We almost lost the death penalty less than thirty years ago, but spurred by public outcry against the crime wave that might ensue and the public "need" for revenge against its most abhorrent criminals, legislators scrambled to re-implement it.
The death penalty was essentially banned in the United States when, in 1972, the U.S. Supreme Court ruled that the death penalty was cruel and unusual punishment, and therefore violated the eighth and fourteenth amendments (Furman v. the State of Georgia). Considering the ways in which the death penalty laws had been applied, the Court found the results to be "harsh, freakish, and arbitrary." The Court went on to reverse death sentences in hundreds of cases.
Four years later, capital punishment statutes were re-written to provide better guidance for juries. Several hundred people were sentenced to death under these new statutes. In 1976, the Supreme Court backed away from its earlier decision, stating that "the punishment of death does not invariably violate the Constitution." Following that decision, 38 state legislatures and the Federal government have enacted death penalty statutes, including two enacted by Congress: one for peacetime espionage and another for drug related murders.
When you look at the arguments in favor of the death penalty, it quickly becomes apparent that they don't hold water. The strongest argument in favor of capital punishment holds that it deters capital crimes. However, evidence shows that the death penalty is no more effective than imprisonment in deterring murder and suggests that it may even encourage violence.
Steven G. Mason is an Orlando attorney who specializes in civil rights cases. He is one of a handful of lawyers in Florida certified by the bar to handle both criminal trials and appeals. He thinks the death penalty should be abolished. "It's barbaric and anachronistic," Mason says.
Many of the states that re-introduced the death penalty after the Furman decision did so because they believed it deterred violent crime. However, Mason says that "deterrent value is gibberish: if you're high on crack, you're not going to be a contemplative person, thinking about the repercussions--thinking 'I'd better not do this because I might get the death penalty.' That's not how criminals think."
Psychological studies bear out Mason's contention. According to the ACLU, most murders are committed in the heat of passion and/or under the influence of drugs or alcohol. "Passion" and drug-influenced impairment make the murderer unlikely to consider the consequences of his actions. Further, in those crimes which are planned, the murderer "plans" to not get caught, and therefore, the death penalty becomes a non-issue for him.
Statistics show even more conclusively that the death penalty does not curb violent crime. States that execute people, as a group, do not have a lower incidence of murder than those who do not have the death penalty. For example, from 1990 to 1994, the homicide rates in Wisconsin and Iowa--who do not have the death penalty--were half that of Illinois, which had sentenced to death over 200 people between 1973 and 1994, and had executed two.
In fact, use of the death penalty may even increase the rate of murder. In Oklahoma, for example, the 1990 reintroduction of executions was accompanied by an abrupt and lasting increase in the level of homicides against strangers to the degree of one additional incident per month. An article in Criminology suggested that the increase may be due to the weakening of "socially based inhibitions against the use of lethal force to settle disputes" brought on by "a return to the exercise of the death penalty."
According to Mason, letting the public see "what the death penalty is really like" would create a wave of anti-death penalty sentiment. "Government opposes (public access to execution) because that's a way to hold on to the death penalty. The more you get out there and talk about it, the greater likelihood that you might be an instrument of change. The public doesn't do anything until you create a heightened awareness."
"Part of the problem with the debate on the death penalty is that people want to shy away from the emotions involved," he says. "Look at how upset people get when they see an animal dying on the side of the road--how upset they get over its suffering. But they don't deal with human death the same way, because they don't see it. If you read in the paper that someone was killed in some awful way, you understand it, but you don't see it and don't live it."
"A lot of people didn't realize that when they had the electric chair, they had this protocol that the guards had to follow," Mason continues, "where the person would be taken from their cell and moved to a special cell closer to the execution chamber. They'd take a shower with a special type of petroleum-based soap, then be shaved on certain parts of their body and have petroleum jelly applied as a conductor. It's like a cookbook; if you're going to make a meal, you have a recipe, so there's a checklist that the guards checked off, like following a recipe for an execution. It just made death seem antiseptic."
In cases in which eye witnesses have described executions, their barbarity becomes painfully apparent. For example, consider this account of the death of John Evans (Alabama, 1983). The execution was witnessed and described by a reporter for the Boston Globe:
"...1900 volts of electricity passed through Mr. Evans' body. It lasted thirty seconds. Sparks and flames erupted ... from the electrode tied to Mr. Evans' left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently...A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans' face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.
"Evans was administered a second thirty-second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans (and) reported that his heart was still beating..."
This witness, incidentally, asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. Wallace denied the request. Only after the third charge of electricity was administered did Evans finally die--fourteen minutes after his execution began.
Hanging is still a possibility in Delaware, New Hampshire and Washington. Idaho and Utah still use firing squads. Many states still electrocute prisoners, and others use the gas chamber. More than thirty states now use lethal injection. "They've tried to sanitize it by using lethal injection," Mason thinks. "That's more humane, maybe, but it's still barbaric."
"It's not just the act of killing someone," that is cruel and unusual, Mason points out. "There's the whole charade involved and the process that goes into killing them: First, you put them on death row and let them fight for their life as [the conviction] goes through the appeals. The [execution] day gets nearer and nearer, then they move them closer and closer to the death chamber. They finally put them on suicide watch, so the reaper doesn't get his due before the hour of execution arrives."
Keeping the death penalty, Mason says, depends a lot on media and government de-humanization of the condemned. "People think, 'They deserve what they get.' If you de-humanize someone, then it's much easier to do something to them. That's true whether you're a criminal committing a crime or the government" killing the criminal.
One reason that the death penalty should disappear, say its opponents, is that it denies due process of law. "We know that innocent people have been placed on death row over the last couple of decades," Mason says. In fact, over the past century, there has been an average of four cases each year in which an innocent person was convicted of murder.
"I'm a lawyer, and I make mistakes," says Mason. "Lawyers make mistakes all the time." Whether or not the convicted criminal gets sentenced to death, however, is arbitrary. "The prosecution is limited to statutory guidelines--was the act 'cold,' atrocious? And the defense is given a set of mitigating circumstances. Then, essentially, you weigh the crime against the guy's background and decide whether or not to kill him."
"It's easy to make a mistake about guilt, but what if a lawyer makes a mistake on the death penalty? How do you remedy that? Once it's carried out, the death penalty is irrevocable."
One reason behind the 1972 banning of the death penalty was that it and its application could be seen clearly as racist. Studies show that this has not changed significantly. "If you're a minority," Mason says, "there's a much higher statistical probability you're going to end up on death row."
A black man who kills a white man is eleven times more likely to receive the death penalty than a white man who kills a black person, according to the ACLU. Blacks who kill blacks are even less likely to receive the death penalty. Using Texas as an example, in 1991, about twelve percent of the population of Texas was black. Yet 48% of those in Texas prisons are black, and 55.5% of those on Texas' death row are black. A 1990 report by the U.S. General Accounting Office stated that "28 studies show a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty since the Furman decision."
After the Furman decision, states implemented new guidelines, which many opponents consider mainly "cosmetic." Before 1972, Mason says, "most states had no guidelines; it was just up to the lawyers to argue and the jury to decide. Now you read the jury this long list of guidelines, which the supreme court made [the states] create, that says what can you legally rely upon to determine if they should die. Was it atrocious? Was it premeditated? What was his prior record? Did he commit this murder to escape detection? That's all just to make it more stable in the eyes of the court."
Capital punishment is very expensive, too. In a death penalty case, Mason says, "You go straight to the State Supreme Court, bypassing all the appellate courts. When you talk to those people, the judges and prosecutors at that level, those people are not liberals. As society goes, they are very conservative people. But they'll all tell you they'd eliminate the death penalty in a heartbeat. They spend all their time on appeals, and 60% of their workload is on death penalty appeals."
All that time spent on death penalty appeals costs the taxpayers a lot of money. In the U.S., Florida has one of the highest rates of executions, and Florida spends about $3.2 million on each death row inmate, compared to about $535 thousand for each inmate sentenced to life in prison.
"The paradox," according to Mason, "is that they kill people to teach society that killing is wrong. How perplexing!" Some people believe that the only appropriate punishment for death is death. The idea is based on the principal of retribution--an eye for an eye--which means that a crime must be "undone" by imposing against the criminal an equal punishment. Capital punishment, then, is not "justice", it is revenge.
"The only thing the death penalty is good for, to be brutally honest, is that it may provide some sense of catharsis and retribution to the victim's family," Mason says. "But I'm not so certain that it really helps the families of the victims," he adds, "because throughout the appeals process, which can take up to fifteen years, they're waiting for this person's demise. That's a very unhealthy thing."
Even so, he says, "If you have a loved one killed, you may want that catharsis. But that's not how we're supposed to think as a society." If someone does something horrible to a loved one, it's a "natural human compulsion" to want them to suffer, too. However, "logic is supposed to be the foundation of law," Mason says, "and the death penalty isn't logical. Law exists to protect us from those natural human compulsions--to protect us from ourselves."
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