No Matter How You Try to Do It, The Death Penalty Is Garbage

Back when I was a teenager, I used to write essays about why I hated Newt Gingrich and why I hated the death penalty. Now it’s 20 years later and I’m still writing essays about why I hate Newt Gingrich and why I hate the death penalty. “Time is a flat circle,” as Rust Cohle said.

Earlier this year, the state of Arkansas executed four men in eight days, because the state’s supply of lethal injection drugs was about to expire. Arkansas had originally scheduled eight executions in 11 days, but this legal bloodbath was limited somewhat by the courts, which halted four of the executions on appeal.

Despite the recent publicity for Arkansas’ bloodlust, the imposition of the death penalty in America as a whole seems to be entering a possibly permanent decline. According to the Death Penalty Information Center, the number of executions in America has been decreasing year after year, with only 20 executions in 2016—the lowest number since 1991. According to Gallup polls, 61% of Americans support the death penalty, but that number is also at a 40-year low, and among younger Americans age 18-29, only 51% support the death penalty. Although 31 states and the federal government still have the death penalty, most states do not use it, or use it sparingly—most executions are carried out by just a few states, such as Texas, Oklahoma, Virginia, and Florida. Shortages of lethal injection drugs have made it increasingly difficult for states to carry out executions; drug companies (often based in Europe or other countries that do not have the death penalty) do not want their drugs to be used to end human lives. The Supreme Court has shown a growing impatience with the death penalty, having already limited its use for juvenile offenders and for crimes other than murder. It’s not too far-fetched to imagine that the Supreme Court could abolish the death penalty within our lifetimes; the death penalty may soon become a relic of history—a regional curiosity founded in Southern-style racist religiosity and “eye-for-an-eye” Old Testament vengeance.

Good. I’m glad that the death penalty is in decline. Because there is no “good way” to do the death penalty. No matter how you try to define it, the death penalty is garbage.

Here’s why:

Innocent People Get Executed

America’s criminal justice system has lots and lots of problems, and the death penalty is the most vivid example of what happens when we allow an imperfect system to make life-and-death decisions. According to the Death Penalty Information Center, “since 1973, more than 155 people have been released from death row with evidence of their innocence.” And during 2000-2011, there were an average of five people exonerated from death row per year. This is a sign that innocent people truly do get convicted and sentenced to die. There’s no “safe” or “accurate” or “fair” way to kill people without making horrible irrevocable mistakes.

Cameron Todd Willingham was a man who was executed by the state of Texas in 2004 for murdering his three daughters by committing arson to the family home. Willingham always claimed that he was innocent, and went to his death saying that he had been persecuted for a crime that he did not commit. In the years since Willingham was killed by Texas, evidence has emerged that suggests that he did not commit arson, that the fire could have been accidental, that the fire investigators presented by the state during Willingham’s trial got the story wrong.

Forensic science is an ever-evolving field. Sometimes the “can’t miss” evidence that prosecutors and investigators bring to trial turns out to be based on flawed science; for example, the FBI announced in 2015 that, for two decades prior to the year 2000, its forensic experts had given flawed testimony in more than 200 trials where they claimed that “forensic hair analysis” of human hairs found at crime scenes indicated the guilt of defendants, even though we now know that the analysis was based on bogus science. These trials included 32 death penalty trials where defendants were sentenced to death; 14 of those people have been executed or died in prison. Even well intentioned investigations can lead to fatal errors.

The death penalty is also rife with prosecutor misconduct and miscarriages of justice. Ledell Lee was one of the inmates executed by Arkansas in April: his defense team at trial had never hired any experts to test him for intellectual disabilities, and no appeals court ever objected to the fact that one of Lee’s prosecutors was having an affair with the trial judge. No forensic evidence from the crime scene matched Lee, and he asked for DNA testing for decades but Arkansas never allowed it (DNA testing costs a lot of money). Ledell Lee went to his death still proclaiming his innocence; the same thing could have happened to Damien Echols (one of the famous West Memphis Three who were released from prison after being wrongly convicted as teenagers of murdering three boys) but he was able to get DNA testing and further judicial review of his case.

Even when death penalty defendants aren’t getting railroaded by bad evidence, crooked judges, or unscrupulous prosecutors, they’re getting sentenced to death because of their own incompetent lawyers. Most people on death row are poor. Poor people in America tend to not get very good legal representation, especially in America’s most bloodthirsty death penalty jurisdictions. If you can’t afford your own lawyer and you are accused of capital murder, most American death penalty states are going to assign your case to the most hapless, low-paid, overworked, desperately alcoholic defense lawyers available. There are countless stories from death row of incompetent defense lawyers falling asleep during their client’s trial, showing up to court drunk, failing to call any witnesses, failing to present “mitigation” evidence to make the jury want to show mercy, and otherwise botching their jobs. A disturbingly high percentage of death row inmates were represented at trial or on appeal by attorneys who were later disbarred or disciplined for failing to uphold the standards of the legal profession.

America’s criminal justice system is supposed to be an adversarial process where criminal defendants are presumed innocent until proven guilty, and where every defendant has a lawyer who is there to zealously advocate for their client’s life and legal rights and force the state to prove its case beyond a reasonable doubt. Adequate legal representation against the power of the government is supposed to be one of the fundamental rights that we all have as Americans. But especially in death penalty hellholes like Texas and Oklahoma and Arkansas, it doesn’t happen. The rich get good lawyers and the poor get lethal injections.

The Death Penalty is Racist

The death penalty cannot be separated from America’s legacy of racism. It’s the new form of lynching. Instead of being practiced by angry mobs, it’s carried out by judges and juries and given a sheen of respectability. Black people are more likely to be executed than white people, and the states that are most enthusiastic about the death penalty also tend to have the worst histories of racist violence against black people. Yes, white people get executed too, but in general, the death penalty disproportionately values white life. In a country that has barely begun to face up to its historical legacy of mass murder and racist violence against black people, the death penalty is an indulgence that we cannot afford.

It’s hilarious to me that so many Christians are in favor of the death penalty—because their entire religion is based on a wrongful execution. If you love Jesus, you should hate the death penalty. If you love the teachings of a man who hung out with beggars and prostitutes and outcasts, who was condemned to die in bloody agony on a cross of shame next to a couple of common thieves, who said to “love your enemies” and “turn the other cheek” to those who harm you and practice radical forgiveness and mercy, then you should be protesting outside of America’s prisons every single day. Christians who support the death penalty are clueless moral hypocrites of the highest order. I’m not a Christian—I never want to set foot in a church again—but I feel like I’m still a better Christian than Christians who support the death penalty. Sure, the Old Testament says “eye for an eye.” Big deal. The Old Testament also says we’re not supposed to eat pork and shellfish and wear multiple types of fabric or whatever. Most of you Christians can’t even read Ancient Hebrew, so don’t act like you’re experts in the Jewish scriptures. I can’t believe I have to sit here and try to educate Christians about the basic fundamental tenets of their own faith. Christ!

The Death Penalty Degrades the State

The death penalty diminishes us all. I’m opposed to the death penalty for all criminals, even the worst of the worst, even the most obviously guilty, even the most despised and devilish people on Earth. Why? Because if killing is wrong, then it’s wrong for the state to kill in our names. Period. The way to show people that killing is wrong is to make killing so rare, so forbidden, such an anathema, that people shudder to contemplate it. And I’m not saying this because I love criminals and because I’m a bleeding heart liberal; murderers are awful. They deserve to suffer forever. But we don’t have to kill them: there are ways to immobilize and incapacitate even the worst killers with solitary confinement to make sure that they never harm anyone again. Have you ever read about the long-term effects of solitary confinement? It’s awful—it’s a profound sort of living hell. Instead of giving the worst murderers a glorious public death, let’s put them in a cell the size of a parking space and let them rot, alone and forgotten, forever.

Even if the death penalty wasn’t racist and unjust and otherwise incompetently administered, even if the death penalty could somehow be limited to only the worst offenders who were unquestionably 100% guilty, and could be carried out in a humane, painless, instantaneous-death sort of way, I would still oppose the death penalty. Because I don’t want anyone to be killed, ever. The older I get, I’m becoming more of a radical pacifist: no human being deserves to be killed. I want humanity to strive toward a world where the death penalty doesn’t exist, where war doesn’t exist, where killing for political purposes (whether that’s terrorism or Republicans running for re-election by bragging about how “tough on crime” they are) doesn’t happen.

Human beings are flawed, fallen creatures. But our great advantage as a species is that we keep trying to fix our flaws and improve our societies and get better over time. People used to carry out executions in public, with horrifyingly gruesome methods like burning at the stake, drawing and quartering, and crucifixion. Compared to that blood-soaked history, 20 executions per year, carried out in sanitized conditions behind prison walls, represents massive progress. Executions are becoming more rare and less popular, and I believe that within my lifetime the death penalty in America will be abolished, by court ruling if not by popular vote. In the long run, I’m an optimist; I don’t believe that the world is going to hell. If you look at the long arc of human history, there is such a thing as an evolving standard of decency. Despite the latest headlines about terrorism and war in Syria and the many damnable atrocities that are still too common in too many places, in many important ways, the world is becoming less violent, less divided, more peaceful, more humane, and more merciful. If we can change the way our society treats our most despised and broken people, that will be a sign of greater hope for us all.