"Sonny's Corner" is a regular column in Prairie Fire, featuring commentary on civil rights and justice issues. Our friend and Omaha colleague, Joseph P. "Sonny" Foster, died suddenly at age 54 in August 2005. He left an uncompleted agenda, as did many of our civil rights and justice mentors and heroes. We shall attempt to move forward on that unfinished agenda through this column.
By Michael L. Radelet
In 1972, the U.S. Supreme Court, in effect, threw out all existing death penalty statutes in the U.S., leading many observers to believe that we would never again see an execution on American soil. How wrong they were. Since then over 1,300 men and a dozen women have been put to death, about 37 percent of whom met their fate on the gurney in Huntsville, Texas. Today nearly 3,200 inmates await execution in the 33 states that allow it. Nebraska has executed three prisoners since 1972 (the last was 15 years ago), and 11 more sit on the state’s death row in Tecumseh.
Capital punishment has always been controversial in the Cornhusker state. In 1979 the legislature voted to abolish the death penalty, only to see the legislation vetoed by Gov. Charley Thone. Since then abolition bills have regularly been introduced in the legislature, and in 2007 the state came within one vote of repeal. Clearly, there have been regular conversations about capital punishment throughout the state over the past 30 years.
Over the years, the nature of those death penalty debates has changed significantly.
In the 19th century the dominant pro-death arguments were religion and deterrence. At the time we heard primarily Old Testament arguments, such as “eye for an eye.” Some of the most outspoken supporters of the death penalty at the time were the clergy, and no major religious denominations took a stand in opposition. In fact, many supported the death penalty on the grounds of rehabilitation: knowing your exact date of death would force criminals to repent and make their peace with God.
Today almost all the largest religious denominations in Nebraska and in the U.S. are on record as opposing the death penalty, with the major exception of some of the more fundamentalist churches. The Catholic Church, Evangelical Lutheran Church in America, Presbyterian Church USA and United Methodist Church are among the large denominations in Nebraska that oppose executions, although that message has had mixed results in being accepted by those in the pews. But overall only a small fraction of today’s death penalty supporters base their support on religious principles.
Similarly, fewer and fewer people today base their support of the death penalty on deterrence grounds. Until 1903 all hangings were done in public in the county where the crime occurred, largely in hopes that the spectacle would deter onlookers from following in the offenders’ footsteps. At the time those convicted of capital crimes but spared the death penalty could expect to be paroled after a decade or two in prison, but today the only possible sentences for those convicted of first-degree murder are death and life imprisonment without parole. So the deterrence issue now hangs on the question of whether the death penalty deters would-be murderers more than the alternative sentence of life without parole.
Those who study homicide data have found little that supports the argument that the death penalty is a superior deterrent. A recent survey of America’s top criminologists found that 90 percent believe the research shows that the death penalty does not add significant deterrent effects. This finding was echoed in 2012 by a blue ribbon commission of the National Academy of Sciences that concluded there were no reliable data showing the death penalty is superior to long imprisonment in its deterrent value. Anecdotally, if the death penalty were a deterrent, murderous bank robbers would avoid Norfolk and head 70 miles east to Iowa, where they could only be punished by life imprisonment. Today some supporters of the death penalty still base their stand on deterrence, but they support that view more with gut feelings than with solid data.
A third pro-death penalty argument that was heard at least through the 1980s is that we save money by executing offenders. This argument points out that life imprisonment is expensive, and executed offenders do not have to be housed, fed and given free medical care. But today both friend and foe of the executioner have reached agreement on this point, realizing that each execution costs millions more than life imprisonment. Some would argue that the death of the offender is worth every penny or that costly appeals should be curtailed, but at least as practiced today, we know the death penalty consumes huge amounts of money. In essence, this aspect of the debate has evolved into a discussion of whether this money can be used to fund better solutions to the crime problem or, as we shall see, better assistance for families of homicide victims.
Replacing these pro-death penalty arguments over the past two or three decades has been a rapid ascendency of retributive justifications. Here the rationale is straightforward: those convicted of the worst murders have caused immense suffering among the victims, their families, and their communities, and they deserve to be severely punished in return. While life imprisonment is painful, it simply does not impart the amount of pain and suffering that the offender deserves.
Relatively recently (circa 1990), this argument began to be modified and tempered by demanding retribution in the name of the families of the homicide victim. Here the death penalty is seen as a service for victims, offering them closure and some state-sanctioned retaliation. As a bonus, only through execution can we be assured that the offender will not kill again.
Everyone agrees with the need to help families of homicide victims, but death penalty opponents point to several ways that we might help them with the millions that are spent on capital cases. There have been over 2,000 homicides in the state since 1972, and 14 inmates have been executed or are on death row, meaning that the death penalty is imposed in about 1 out of every 140 homicide cases. With vast sums of money going to fuel the executioner, there is very little left to support assistance for the families of the other 139 victims.
One very pressing demand increasingly voiced by families of homicide victims is that they want to know who killed their loved one and want the offender to be caught and convicted. In 1960 over 90 percent of homicides in the U.S. were cleared by arrest. By 1976 the clearance rate had fallen to 79 percent. In 2005 it fell to 62 percent. In short, nearly four out of every 10 murderers today are never apprehended. Recent efforts to abolish the death penalty, such as a 2012 referendum in California, suggest abolishing the death penalty and using part of the cost saved to increase the rate of arrest and conviction, thereby getting more murderers off the streets, rather than spending vast amounts to execute those already behind bars.
Those who oppose the death penalty go on to claim that the penalty is not reserved for the worst of the worst. In Nebraska there are strong regional differences in the probability of seeking the death penalty, and evidence from several states shows that for similar homicides, those who kill whites are roughly four times more likely to be sentenced to death than those who kill blacks. Sometimes the quality of the attorney is more predictive of who is sentenced to death than is the heinousness of the offense. In addition, there is often pure arbitrariness in who ends up on death row, with no clear pattern that distinguishes those on death row from those sentenced to prison terms.
Finally, a relatively new argument against the death penalty has emerged in recent years with the emergence of DNA technology. There have now been over 140 inmates released from America’s death rows since 1972 because of evidence of innocence. Among them is former Nebraska death row inmate Jeremy Sheets, released in 2001 because the only evidence against him came from an unreliable source who took his own life prior to the trial. Not so lucky was William Marion, who was granted a posthumous pardon in 1986, 100 years after he was hanged for killing a man who later turned up alive.
So where does that leave us? The unmistakable worldwide trend, as well as the trend in the U.S., shows a strong move away from the death penalty. In 1976 only 16 countries from around the world had abolished the death penalty. Today there are 140 that have abolished the death penalty in law or in practice. In the U.S. six states have abolished the death penalty since 1972: Massachusetts (1984), New York (2007), New Jersey (2007), New Mexico (2009), Illinois (2011) and Connecticut (2012). The number of executions has been cut in half since 1999, and the number of new death sentences is now at its lowest level since 1972. In the last few years our conservative Supreme Court has banned executions of inmates who were under age 18 at the time of the offense, as well as those shown to be mentally retarded.
Public support for the death penalty has also taken a dramatic fall since 1994, when the well-respected Nebraska outfit, The Gallup Organization, found that 80 percent of Americans supported executions. The last national poll on the death penalty, the 2012 American Values Survey conducted by the Public Religion Research Institute, found that only 46 percent of Americans support the death penalty given the alternative of life imprisonment without parole. That is a huge turn away from executions in a very short time span.
But for now the debate continues. Stay tuned.
University of Colorado Boulder Professor Michael L. Radelet participated in a Nov. 28 debate on capital punishment titled “The Death Penalty: Justice, Retribution and Dollars.” This event served as the “The Chuck and Linda Wilson Dialogue on Domestic Issues” as part of the E. N. Thompson Forum on World Issues 2012–13 series on Religion, Rights and Politics.
This debate also involved J. Kirk Brown, Nebraska solicitor general, and was moderated by Susan Poser, dean of the University of Nebraska-Lincoln College of Law. The event took place at the Lied Center for Performing Arts in Lincoln, Neb. Please visit the website for the E. N. Thompson Forum on World Issues to view a recording of the debate.