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CHAPTER E I G H T

Why We Should Put the Death Penalty to Rest

Stephen Nathanson

My aim in this chapter is to make the strongest case that I can to show that punish- ing people by death is an unjust and immoral practice. Although we often think of the death penalty debate as one of those eternal, irresolvable issues, I believe that the arguments for the death penalty are extremely weak and that the practice of punish- ing by death is morally indefensible.

I know, of course, that not everyone sees things this way. The laws of 38 of the 50 states of the United States include death as a possible punishment, and public support in the US for the death penalty over the last 25–30 years has been very strong. This American consensus, however, is somewhat anomalous. The death penalty has been abolished in almost every modern, democratic country, and its abolition is now required of any country wanting to enter the European Union.

Still, in the US, many people strongly support the death penalty. Why is this? While it could be that death penalty supporters simply want vengeance and don’t care about morality, I doubt that this is true. I believe that most death penalty supporters are people of good will who think that the death penalty is right or necessary. While some political leaders use the death penalty for political gain, most people have no vested interest in the death penalty. If they are wrong about it, this is the result of honest mistakes. They either have mistaken factual beliefs or are confused in their moral thinking. If I can show that the factual and moral beliefs on which death penalty support depends are mistaken, this should lead them to see that the death penalty ought to be abolished where it is used and left to rest in peace where it has already been rejected.

Whether I can do this remains to be seen. One reason for optimism is that the death penalty debate differs from some other controversial issues. Some controversies are hard to resolve because people on opposing sides differ in their fundamental values. In such cases, it is hard to find values that can serve as a basis for reaching agree- ment. The death penalty debate is not like this. Both death penalty supporters and

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opponents generally appeal to the same fundamental values: the pursuit of justice and respect for human life.

If I can show that a belief in the importance of justice and respect for human life is inconsistent with support for the death penalty, it would follow that people who hold these ideals and yet favor the death penalty are actually contradicting their own values. An argument that would show this would be very strong, both logically and psychologically. It would be logically strong because contradictory views are neces- sarily false, and psychologically strong because it appeals only to values that death penalty supporters themselves accept.

Of course, some people might reject the values of justice and respect for human life, but there would be a great cost to doing so. First, they would deprive themselves of some of the common arguments for capital punishment – such as that it is neces- sary for protecting human life and that it is a just punishment for murder. Indeed, they would be unable to say why murder is a serious crime since the condemnation of murder presupposes that human life has an especially high value. Second, reject- ing these values would undermine their moral credibility. No one would listen to people who said that they were indifferent to justice and respect for human life because our society is publicly committed to these values (whether or not it actually takes the required steps to do achieve them).

We can assume, then, that all who support the death penalty and whose views we take seriously are committed to the values of justice and respect for human life. My goal is to show that the death penalty is inconsistent with these values. How can this be done?

My argument will proceed in two stages. First, a consideration of the death penalty in theory, followed by, second, an examination of the death penalty in practice. I will show that the principled bases for the death penalty are extremely weak. Then, I will show that even if the death penalty could be justified in theory, the actual practice of executing murderers violates both the values of justice and respect for human life. Even people who support the death penalty in theory should oppose it in practice.

The Death Penalty in Theory: Saving Lives and Doing Justice

The two basic arguments for the death penalty are (1) that it is the best deterrent of murders and thus saves people’s lives and (2) that it is the punishment that justice requires for the crime of murder.

The argument from deterrence According to this argument, the threat of execution is a more powerful deterrent than lesser punishments and therefore will lead to fewer deaths from homicide. If this is true, then anyone who values human life will be willing to support executing mur- derers because this will spare the lives of innocent people. Just as common-sense morality permits killing in self-defense or defense of others, so it permits the death

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penalty as a form of social self-defense, saving the lives of people who would other- wise be victims of murder.

In theory, this is a powerful argument. Anyone who values human life will want to diminish the number of people murdered, and if the death penalty is uniquely effec- tive in preventing murders, then it cannot be dismissed as senseless violence or mere vengeance. Nor could it be said to be the same as murder, for while murders increase the number of innocent victims, the death penalty (according to this argument) dimin- ishes the number of innocent victims.

The deterrence argument has been challenged on factual grounds, and the best evi- dence suggests that the death penalty is not a better deterrent than life imprisonment.1

In general, countries and states that do not use the death penalty have lower homi- cide rates than countries that do. These are familiar points which I will not stress here because I want to consider the death penalty “in theory.” I want to challenge the under- lying moral principle, which is the idea that if a punishment deters more murders and thus saves more innocent lives, then it is justifiable. While this sounds plausible, it is false and thus fails to justify the death penalty. I offer two arguments to show this.

First, we can imagine punishments that have greater deterrent value than either the death penalty or imprisonment and yet would be wrong to inflict. Suppose we could deter more murders by executing not just the person who commits a murder but also the family or closest friends of such a person. If the idea behind the deter- rence argument is that we deter more murders by threatening the most terrible pun- ishments, then it is plausible to suppose that potential murderers who might be prepared to risk their own lives might be deterred by the loss of life to others that they care about – their husbands or wives, their children or parents, their closest friends. If, as it is often said, the death penalty is supposed to make potential mur- derers “think twice,” this punishment would be likely to make them think three or four times. Its logic is the same as the argument used to support the death penalty over long-term imprisonment: the more terrible the punishment, the more powerful the deterrent.

Yet, even if this punishment succeeded, it would be an unjust, immoral punish- ment. It would save some innocent people’s lives by killing other innocent people, and this is morally unacceptable.

Does this argument show that the death penalty is wrong? No, but it does show that the deterrence argument is not sufficient to justify it, even in theory. It shows that a punishment can be the best deterrent and still be morally wrong.

Someone might object to my use of a made-up example that involves a punish- ment that virtually no one supports. After all, they might say, the death penalty debate is about the execution of people who are guilty. No one defends the execution of innocent people to deter murders. But, of course, even in theory, death penalty sup- porters must acknowledge the risk that some innocent people will be executed and, even in theory, they must be willing to say that killing some innocent people is an acceptable price to pay for the saving of a greater number of innocent lives.2 So my fanciful example shares an important feature with the actual death penalty for mur- derers: both involve a willingness to kill innocent people.

This is an issue that I will return to when considering the death penalty in fact. For now, I only want to show that even if the factual assumptions underlying the

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deterrence argument were correct, the argument by itself cannot justify the death penalty. If deterrence were all that mattered, then we would be logically committed to executing the family and friends of murderers as well as the murderers themselves. This is scarcely something that people committed to justice and respect for human life should support.

The argument from justice and desert Many people support the death penalty for a different reason. They think it is the only truly just punishment for murder, and they often feel that anything less than death is morally unacceptable. Why is this?

In explaining this view, many people cite the expression “an eye for an eye.” This familiar saying is probably the most influential basis for the death penalty. It bene- fits from both the authority of the Bible and from its surface plausibility as a fair rule for punishment. The “eye for an eye” principle tells us how to treat those who commit crimes. It says that if one person harms another, then the perpetrator should suffer the very same harm as the victim. This is how the “eye for an eye” principle is gen- erally understood: the punishment should equal the crime.

For those in the know, this principle gains additional credibility from the fact that it is affirmed by the great philosopher Immanuel Kant in a very famous passage about punishment. He writes:

What kind and degree of punishment does public legal justice adopt as its principle and standard? None other than the principle of equality ... the principle of not treating one side more favorably than the other. Accordingly, any undeserved evil that you inflict on someone else ... is one that you do to yourself. If you vilify him, you vilify yourself; if you steal from him, you steal from yourself; if you kill him, you kill yourself. Only the Law of retribution (jus talionis) can determine exactly the kind and degree of punish- ment. (1965: 101)

And, he adds, if a person “has committed murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice” (1965: 102).

There is, no doubt, something appealing about the “eye for an eye” principle and if it provides a general criterion for determining the appropriate level of punishment for crimes, the death penalty will be justified because it satisfies the test of doing to the criminal what the criminal has done to the victim.

In spite of its surface plausibility, it is easy to see that the “eye for an eye” prin- ciple is defective and cannot provide a solid basis for the death penalty. People are doubly mistaken about the “eye for an eye” principle. They are mistaken in thinking that it is correct and mistaken in thinking that they actually accept it as an adequate guide to punishment. The only reason that people think they believe it is that they have not really thought about it.

There are three serious problems for “an eye for an eye.” First, it requires unjust and barbaric punishments in cases where people have acted barbarically. Second, it conflicts with many of our beliefs about punishment and its justification. Third, in many cases, it provides no real guidance in determining the appropriate punishments.

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Suppose that a person murders the entire family of someone that he regards as his enemy. If we describe his crime as “killing the family of his enemy,” then the “eye for an eye” principle appears to require that we punish the killer by killing his entire family. Simply to execute the murderer alone would not satisfy the idea that the pun- ishment should equal the crime. Yet no one would urge the death of the murderer’s family as an appropriate punishment since they are innocent and should not suffer for the crimes of another.

Anyone who rejects this as a just punishment must reject the “eye for an eye” prin- ciple as well, and because virtually everyone would reject it, that shows that they do not really accept the “eye for an eye” principle. Even Kant, in spite of his strong affir- mations of his version of “the eye for an eye” principle, departs from that principle for reasons very like the ones I have given. In a less famous passage than the one I quoted above, he asks: “[H]ow can this principle [of the equality of crime and pun- ishment] be applied to punishments that do not allow reciprocation because they are either impossible in themselves or would themselves be punishable crimes against humanity in general?” (1965: 132). Just by asking this question, Kant acknowledges that the “eye for an eye” principle cannot be applied to all cases and that it some- times recommends punishments that would be immoral to inflict. He follows his ques- tion with three examples in which the “eye for an eye” principle would lead to an immoral punishment, and then he suggests an alternative. He writes: “Rape, pederasty, and bestiality are examples of the latter. For rape and pederasty, [the proper punish- ment is] castration ... and for bestiality the punishment is expulsion forever from civil society since the criminal guilty of bestiality is unworthy of remaining in human society” (1965: 132). Kant believes that raping the rapist, forcing the pederast to have homosexual sex, or forcing the person guilty of bestiality to have sex with animals would be “crimes against humanity.” Instead, he proposes castration for the rapist and exile for the person guilty of sex with animals.

These may or may not be sensible suggestions, but they are clearly not instances of the “eye for an eye” principle. The lesson here is important. When we actually think about the implications of the “eye for an eye” principle, we quickly come upon cases in which it provides us either with defective guidance in the setting of punishments or with no guidance at all.

These problems are directly relevant to issues about the death penalty for murder. A common feature of the criminal law is that acts with similar effects are treated quite differently because of various facts about the crime. Yet the “eye for an eye” principle focuses on only one aspect of the crime: the harm caused to the victim. It says that the punishment should match the effect of the crime and from this it follows that the taking of a victim’s life should be followed by the killing of the murderer.

Yet there are many different types of action that can result in the death of a victim, and we tend to think that these different types of actions should not all be punished in the same way. Consider the following:

• A hired killer lies in wait and shoots the intended victim. • An argument degenerates into a fight in which one person strikes the other and

kills him.

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• A person sets fire to a building, thinking that it is empty; several people in the building die in the fire.

• A drunken driver kills a pedestrian.

While all of these actions have dire effects, most of us would view the hired killer as more culpable than the others. His action would generally be classified as first-degree murder, and in states with the death penalty, he might be sentenced to die.

In none of the other cases is death intended, even though the people involved engaged in dangerous actions. The second case, depending on the circumstances, might be classified either as second-degree murder (which is not punishable by death) or manslaughter, a lesser charge. If the arsonist had taken steps to insure that there were no victims, he would most likely be charged with manslaughter, while the driver would be charged with vehicular homicide.

Most people agree that these actions should be dealt with differently. But anyone who believes this must reject the “eye for an eye” principle, since it requires us to treat them all in the same way. This supports both of the arguments I have put forward. First, because not all homicides should be punished in the same way, the “eye for an eye” principle is wrong. Second, if most people believe that we should treat homi- cides differently depending on the intentions and the circumstances, then those same people do not believe the “eye for an eye” principle. They might cite it in an argu- ment, but they don’t really believe it.

Whatever its customary force and initial plausibility, the “eye for an eye” princi- ple is far from the last word on the appropriate punishment for particular crimes and cannot bear the burden of justifying death as a punishment for murder.

The Death Penalty in Practice

So far, I have considered the death penalty in theory. I have tried to show that the two most common reasons for supporting the death penalty – the “eye for an eye” principle and the argument from deterrence – are inadequate. Even in theory, the death penalty lacks a convincing moral justification.

But the death penalty debate is not merely an abstract moral issue. It is about actual institutions run by actual people in actual societies. Even if my arguments about the death penalty in theory had failed, there would still be a strong case against the death penalty in practice. To see this, consider the following: suppose that the deterrence argument worked in theory and that the “eye for an eye” principle pro- vided an adequate principle for determining what punishment people deserve. It would still not follow that the death penalty should be adopted. Why? Because we need to consider how this punishment works out in practice.

Suppose that the death penalty deters more effectively than other punishments and suppose that murderers deserve to die. In addition, however, suppose that the legal institutions of a society that imposes the death penalty are not reliable. As a result, innocent people are often convicted of murder. Suppose, for example, that half of those convicted were innocent and that people know about the failings of the system. In this situation, even though the death penalty is justified in theory, it would be

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unjustified in practice. Indeed, it would be blatantly inconsistent for the death penalty to be retained by a society that is committed to the two values I emphasized at the start. It would not be respectful of human life because it would be killing innocent human beings, and it would not be consistent with a commitment to justice because it would be punishing innocent people. Any member of my imagined society who cares about justice and respect for human life should oppose the death penalty in that society even if they favor it in theory. To support the death penalty in that society would show that one had no genuine commitment to these values.

Whether the death penalty is justifiable or not, then, depends only partly on abstract beliefs about morality and justice. In addition, it depends on facts about a society and its institutions. Charles Black makes this point very effectively. He writes:

We are not presently confronted, as a political society, with the question whether some- thing called “the state” has some abstract right to kill “those who deserve to die.” We are confronted by the single unitary question posed by reality: “Shall we kill those who are chosen to be killed by our legal process as it stands?” (1981: 166)

It is the practice of capital punishment – administered by real legal systems and real human beings – that kills people, and, we – as citizens of actual societies – have to decide if this practice should continue.

When I speak about an inconsistency in the pro-death penalty position, then, I mean an inconsistency between the values affirmed by death penalty supporters and the actual practice of capital punishment. My claim is that if death penalty support- ers consider their own values, they will see that these values are violated by the insti- tution of capital punishment, both as it exists now and as it is almost certain to exist for the foreseeable future.

Why the Death Penalty is Inconsistent with the Value of Justice

In order for the actual death penalty to be consistent with the value of justice, it would have to be true that people who are punished by death deserve the punish- ment. Since there is a widespread view that only some of those people who kill others deserve to die, a just system must be capable of two things: first, it must separate the guilty from the innocent and, second, it must be able to sort out the worst murder- ers – those who deserve to die according to the legal criteria of desert – from those who deserve a lesser punishment. If the system cannot do both of these reliably, then the results that it generates are unjust.

In fact, we know that the system in the United States is unreliable. We know this because a large amount of evidence shows that irrelevant features play a large role in determining the level of punishment that a person receives. In theory, the death penalty is imposed because of the terribleness of the specific crimes committed. In practice, actual death sentences are the result of arbitrary, irrelevant factors like race, socio-economic status, and the quality of legal representation. I will briefly cite some facts about the influence of the irrelevant factors.

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Race One of the most widely studied influences on sentencing is race. A large body of research has shown that sentencing in capital cases is very much influenced by both the race of the offender and the race of the victim.

• Between 1976 and 1996, 83% of the people executed in the United States were charged with the murder of a white victim (Hood, 1998: 745).

• In the 20 years after Gregg v. Georgia (1976), the Supreme Court case that rein- stated the death penalty, only 1 percent of executions were imposed on a white person who had killed a black victim (Hood, 1998: 745).

Socio-economic status A person’s social and economic status also plays a role in determining the sentence for the crime of murder. A comprehensive study of the death penalty in Georgia yielded the following result:

• In Georgia, defendants classified as having low socio-economic status were 2.3 times more likely to receive a death sentence than defendants seen as having higher status (Baldus et al., 1990).

Quality of legal representation Socio-economic factors are related to the ability of people to hire competent lawyers. When people lack money, they must accept court-appointed lawyers who are often less competent. The same Georgia study showed:

• Defendants with court-appointed attorneys were 2.6 times more likely to receive a death sentence than defendants who could afford to hire lawyers (Baldus et al., 1990: 158; Bright, 1997).

An investigation by the Chicago Tribune of 285 capital cases in Illinois concluded that the state’s death penalty system was pervaded by “bias, error, and incompetence.” It also cited poor legal representation, finding that 33 people sentenced to death had lawyers who were later disbarred or suspended (Armstrong and Mills, 2000).

A report by the American Bar Association on the death penalty in the United States shows this to be a national problem. According to the ABA, court-appointed lawyers for defendants charged with first-degree murder often have no criminal trial experi- ence and do not know the special rules and procedures for capital cases. They often have insufficient funds to cover the cost of preparing and investigating cases and fre- quently fail to make relevant objections during a trial so that they can be considered on appeal. In addition, they often fail to introduce mitigating factors during the part of the trial devoted to determining the sentence (American Bar Association, 1997: 7–9).

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The ABA report concluded that “in case after case, decisions about who will die and who will live turn not on the nature of the offense the defendant is charged with committing but rather on the nature of the legal representation the defendant receives” (American Bar Association, 1997: 6). This factual conclusion supports the following moral conclusion. If “decisions about who will die” do not depend on “the nature of the offense the defendant is charged with committing” but are determined by irrel- evant factors such as race, social standing, and inadequate legal counsel, then the death penalty as it exists in our society cannot be relied on to produce just results.

Death penalty supporters claim that they want justice. Sometimes, in explaining why only some people guilty of homicide should be executed, they add that capital punishment should be restricted to people whose crimes are most terrible and whose culpability is greatest. What the evidence shows, however, is that the factors that determine whether people are executed or not differ from the factors cited in defense of the death penalty. Even if (in theory) justice would be achieved by executing the worst murderers, there is no reason to believe that this is what our system does.

Of course, these injustices would not support the abolition of capital punishment if the system could be reformed so as to eliminate the influence of these irrelevant factors. But there is no reason to believe that this can be done. The factors that inter- fere with the achievement of justice are too pervasive to be rooted out. Moreover, reforms have already been tried and have failed. In the United States, attempts to free capital sentencing from the influence of arbitrary factors have been ongoing since the 1972 case of Furman v. Georgia. Supreme Court Justice Harry Blackmun, who had supported the constitutionality of the death penalty in Furman and other cases, even- tually argued that the defects in the system are unfixable. In the 1994 case Callins v. Collins, Blackmun announced:

For more than 20 years I have endeavored ... along with a majority of this Court to develop procedural and substantive rules that would lend more than the mere appear- ance of fairness to the death penalty endeavor. ... I [now] feel morally and intellectually obligated to concede that the death penalty experiment has failed. (Callins v. Collins, 1994: 1145)

Anyone who is committed to the value of justice should follow Justice Blackmun’s lead and reject the death penalty because of the injustices it has yielded in the past and is likely to yield in the future.

Why the Death Penalty is Inconsistent with Respect for the Value of Human Life

Having shown why support for the death penalty is inconsistent with a commitment to the value of justice, I will now show why it is inconsistent with respect for the value of human life and thus why it should be rejected by anyone who is committed to honoring that value.

When we examine how the death penalty system actually works, we see that it generates practices that show a callous disregard for human life. In fact, like the act

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of murder itself, the death penalty system embodies a lack of concern about the taking of human life.

In making this serious charge, I have a number of features of the death penalty system in mind. Consider the facts that I have cited about the injustice of the death penalty system. Since the quality of legal representation strongly influences the sen- tence imposed on a person, a system that tolerates inadequate representation for people who may be sentenced to death expresses indifference toward the value of these defendants’ lives. There is no way that assigning incompetent lawyers to people in this position can be compatible with a commitment to take seriously the value of each person’s life. Neither is the failure to provide court-appointed lawyers with the resources to investigate their clients’ cases compatible with a commitment to take seriously the value of each person’s life. Anyone concerned with the value of human life would be determined to insure that executions occur only after the most exact- ing procedures have proved beyond a reasonable doubt that death is the proper pun- ishment. There is an obvious inconsistency between affirming the value of human life and tolerating the current level of legal representation for people who face the possibility of death.

Problems with our system can lead to two kinds of mistaken judgment. The first is that a person who is guilty of a crime may receive a more severe punishment than would have been received had he or she been a member of a different race, had a higher social status, or had been able to hire a better lawyer. The second is that the poor quality of legal representation may result in innocent people being convicted of murder and sentenced to die. While there has been a widespread impression that the legal system in the United States bends over backwards to give defendants every con- ceivable advantage, the facts are quite otherwise. In fact, for many defendants, the system is stacked against them, and the results of the process are not reliable indi- cators of guilt or innocence. Consider the following facts (Armstrong and Mills, 2000) that set the stage for the moratorium on executions in Illinois:

• Between 1977 and 2000, the state of Illinois executed 12 people for murder and also released 13 people from death row because they were shown to be com- pletely innocent.

• In some of the cases of wrongful convictions, police used coercive measures, including torture, to extract confessions from innocent persons.

• In at least 46 cases, convictions for murder were based on testimony from jail- house informants; these informants often benefited from their testimony and in some cases had long records of lies and deceit.

These kinds of occurrence are not limited to Illinois. According to James McCloskey, while 226 people were executed in the United States between 1973 and 1995, 54 people were released from death row because of innocence. “This means,” McCloskey comments, “that during the last twenty years, for every five death row inmates exe- cuted, one has been released and exonerated. That points to a rather cracked system, one prone to serious and frequent mistakes” (1996: 70).

At the national level, the causes of error resemble those in Illinois. Hugo Bedau and Michael Radelet identified 350 instances of wrongful convictions in capital cases

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and found that 82 of them resulted from questionable actions by police officers and prosecutors (1987: 56–9). This is consistent with a general pattern in the causes of wrongful convictions. One study of wrongful convictions in general (i.e., not simply in homicide cases) concluded: “If we had to isolate a single ‘system dynamic’ that pervades large numbers of these cases [of erroneous convictions], we would proba- bly describe it as police and prosecutorial overzealousness” (Huff et al., 1996”: 64). The chance of convicting and executing innocent persons is substantial, and mis- conduct by officials in the criminal justice system is a frequent source of error.3

While these practices and the resulting convictions of innocent people are dread- ful in connection with any crimes and punishments, they are especially horrifying in the case of the death penalty, since they can result in the killing of people for crimes of which they are entirely innocent. Moreover, the death penalty makes corrections of errors impossible.4

In reply, death penalty supporters may argue that the fact that innocent people were exonerated and released shows that the system works. This reply, however, is inconsistent with the facts. In many cases, people have been spared from death only by chance or through the intervention of people outside the system. In Illinois, one person on death row was released through the work of students at Chicago-Kent College of Law, while three others were exonerated after investigations by journalism students at Northwestern University. One of these people, Anthony Porter, came within two days of being executed (Armstrong and Mills, 2000). Such down-to-the-wire cases that depend on the fortuitous intervention of outsiders are no evidence for the relia- bility or self-correcting nature of the legal system.

Moreover, when claims of innocence arise, officials are often resistant to them. As McCloskey notes: “Once wrongly convicted and sentenced to death, the criminal justice system treats you as a leper. No one wants to touch you. In my view, those in authority seem to be more interested in finality, expediency, speed, and administra- tive streamlining than in truth, justice, and fairness” (McCloskey, 1996, p. 70). McCloskey’s claim about the true interests of those in the system is supported by the American Bar Association report. It points out that the Supreme Court has ruled that “there is no constitutional right to counsel [i.e., representation by a lawyer] in post- conviction proceedings, even in capital cases” (American Bar Association, 1997: 9]. As a result, people who have new evidence or justified procedural claims may lack the professional assistance that is required to assert claims in a legally credible way.

The lack of interest in correcting mistakes is nowhere more evident than in the time limits set by states for the submission of new evidence and in the Supreme Court’s upholding of such limits. In Herrera v. Collins (1993) the Court ruled that new evi- dence in support of a claim of innocence could be disregarded because it had been submitted too late to meet the Texas 60-day deadline. In other words, the Court ruled that a person could be executed even though there was now evidence that he or she is innocent. Why? Because the evidence came in too late. In defending this shocking view, the Court majority noted that these deadlines were quite common. It noted:

Texas is one of 17 States that requires a new trial motion based on newly discovered evidence to be made within 60 days of judgment. ... Eighteen jurisdictions have time limits ranging between 1 and 3 years, with 10 States and the District of Columbia fol-

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lowing the 2-year federal time limit. Only 15 States allow a new trial based on newly discovered evidence to be filed more than 3 years after conviction. ... [Only] 9 States have no time limits. (Herrera v. Collins, 1993: 409–11).

It is hard to see how the Court’s judgment in this case or the state policies that are cited could be consistent with a commitment to respecting human life. What sort of commitment to the value of human life is shown by the 60-day deadline that Texas and 16 other states set for submitting new evidence of innocence? Or by the fact that only 9 states place no limit on the time period for making sure that people are guilty before we execute them? What sort of attitude toward human life is exhibited by a Supreme Court that places respect for deadlines ahead of a concern about the death of innocent human beings?

It is hard to see how anyone who is committed to the ideal of respect for human life could approve of such practices. And yet, these practices are completely under- standable. They reflect the desire of a legal bureaucracy to bring time-consuming appeals to a halt. They reflect the desire of officials who resist the exposure of errors because they do not want to be seen as incompetent, misled, or over-zealous. They reflect the desire of citizens who want lower taxes more than they want to pay for competent lawyers for people charged with murder. They reflect the fact that it is easier to respect the value of human life in words than to do so in deeds.

Death penalty supporters ought to acknowledge that even if in their ideal world the values of justice and human life would be affirmed by executing murderers, in our actual world the actual practice of capital punishment violates these very same values. If consistency with the values of justice and respect for human life are the appropriate criteria for deciding the issue, then people who understand the death penalty system should oppose the practice of punishing by death. Opposition to the death penalty is consistent with these values, while support for the death penalty vio- lates them.

A Final Point

I have tried to show that the death penalty fails in theory and is inconsistent in prac- tice with the values that death penalty supporters claim to support and I think I have succeeded in showing this. Nonetheless, I know that many people will not shift their view the next time they read about a terrible murder or about a particularly vicious criminal. They will think, “Surely, this person deserves to die. Surely, the death penalty is justified in this case.” What they overlook is that the death penalty is not about the treatment of a particular individual. Rather, as has been clear in my discussion, the death penalty is a system. It is a system that empowers prosecutors to seek death as a punishment, judges and jurors to sentence people to death, and prison officials to impose death. To favor the death penalty is not to favor the execution of a par- ticular person whom you or I believe deserves to die. Rather, it is to authorize many different people – whose motives and attitudes are unknown to us – to seek and authorize death as a punishment. These people may well make judgments that you or I would disagree with and yet when we say we favor the death penalty we are author-

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izing people to act on these judgments. Moreover, we are authorizing them to do so in the context of a system that we know to be unfair and unreliable.

Our views about the death penalty, then, are views about an institution, not about individual murders or murderers. It is quite possible to believe that some murderers deserve to die and yet to oppose the death penalty because one knows that others who do not deserve to die will be executed. And we do know this. We know that death sentences will result from racial prejudice, poor legal representation, and mis- deeds by police and prosecutors. We know that evidence of innocence will be rejected by courts because deadlines are missed. We know that the practice of capital pun- ishment as it actually exists violates the principles of justice and respect for human life. Anyone who genuinely cares about justice and the value of human life should conclude that the death penalty should be put to rest.

Notes

1 For a discussion of both common-sense and statistical evidence concerning the deterrence argument, see Nathanson (2001: ch. 2). For a survey of research on deterrence, see Baily and Peterson (1997).

2 For one example of the claim that killing innocent people is acceptable, see van den Haag (1975: 219–21).

3 Official misconduct is not the only source of errors. For an analysis of a variety of sources of inaccuracy in criminal cases and proposals to increase accuracy, see Givelber (1997).

4 In a decision that was later overturned, Judge Jed Rakoff argued that the death penalty was unconstitutional because DNA evidence had definitively shown its imposition to be unre- liable. For his decision, see United States v. Quinones (2002).

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