by Marc Hyden
Reconsidering the death penalty is a matter of conscience and constitutionality
On the evening of March 11, 2014, Glenn Ford was released from Louisiana’s death row after 30 years of captivity for a murder that he did not commit. The prosecution had withheld testimony that would have exonerated Ford and relied on faulty forensic analyses. Unfortunately, Ford’s story is not unique. It is one of many cases that exemplify the problems with today’s death penalty system.
Many states are grappling with the systemic dysfunction plaguing the current capital punishment regime, but they are finding it is difficult, if not impossible, to maintain such a program while reconciling its moral, pragmatic, and philosophical failures. The state ought not kill innocent citizens, but the death penalty carries an inherent and undeniable risk of doing precisely that. Whether through mistakes or abuse of power, innocent people routinely get sent to death row.
Some, like Ford, eventually get out: To date, 10 individuals in Louisiana and 144 nationally have been released from death row because they were wrongly convicted.
Many others have been executed despite substantial doubts about the verdict.
The fiscal cost of the death penalty pales in comparison to the human cost, but local, state, and federal governments must justify all spending as they struggle with ongoing budgetary shortfalls. John DeRosier, Louisiana District Attorney for Calcasieu Parish, estimated that a capital case in Louisiana is at least three times more costly than a non-death case. Studies in North Carolina, Maryland, California, and many others show that capital punishment is many times more expensive than life without parole, and there’s a long history of the death penalty pushing municipal budgets to the brink of bankruptcy and even leading to tax increases.
The fiscal impact of the death penalty is not lost on state governments. But they seem, broadly, more concerned with the fiscal impact than with the death part. Louisiana is currently considering House Bill 71, which is similar to Florida’s “Timely Justice Act,” which limits the appeals process. Had this legislation passed earlier, it would have likely led to numerous wrongful executions because it shortens the number of appeals available to death row inmates. Cutting the appeals process may, in the end, lead to modest cost savings, but the most expensive step in the death penalty process—pretrial activities and the actual trials—are unaffected by this legislation. And these are precisely the stages that produce wrongful convictions. Evidence proving them wrongful often emerges more than a decade after the initial trial, so the nominal savings are not worth the moral cost of executing an innocent person.
The expense passed on to the taxpayers and risk of killing innocent people are often both justified by claims that the death penalty saves lives—it supposedly deters murder and provides the justice that murder victims’ families deserve. Multiple scientific studies have actually shown that the death penalty doesn’t deter murder. Many murder victims’ family members are vocally rejecting this program because it retraumatizes them through a decades-long process of trials, appeals, and constant media attention.
There’s no greater authority than the power to take life, and our government currently reserves the authority to kill the citizens it’s supposed to serve. This is the same fallible government responsible for the Tuskegee Experiment, overreach including NSA spying, and failures such as the Bay of Pigs. Of course, the death toll from wars government either started or intensified is staggering. Submitting the power to kill U.S. citizens to the State is unwise considering this history of error and malfeasance.
And states aren’t even complying with the standards that allegedly keep the death penalty from falling afoul of the “cruel and unusual” punishment standard.
Many states can no longer obtain the previously used and approved death penalty drugs. So they’ve started experimenting on inmates with new drug combinations acquired from secret sources. This has led to botched, torturous executions. In Ohio, Dennis McGwire audibly struggled for 25 minutes before he died, and Clayton Lockett’s execution in Oklahoma was postponed after he failed to die after 10 minutes. Indeed, Lockett only met his demise due to a heart attack, 30 minutes after the botched execution. Cruel and unusual?
Glenn Ford could have easily been subjected to the same experiences. Louisiana, like many other states, keeps the source of its death penalty drugs a secret. This secrecy calls into question the legality and validity of the drugs’ manufacturers. We are far from the level of government transparency required to limit government abuse, misuse, and power.
Most people will agree that the death penalty system is not perfect—but a program designed to kill guilty U.S. citizens must be perfect because the Constitution demands zero errors. To date, 18 states and the District of Columbia have abandoned capital punishment, aware that the system is broken and finally convinced, after years of legislative, judicial, and policy “fixes,” that it cannot be mended. Other states still believe they can make capital punishment work properly, but they continue to break an already failed program one “fix” at a time.