Balkinization: Honest Proponents of the Death Penalty (and Judges): Please Read this Book

Honest Proponents of the Death Penalty (and Judges): Please Read this Book

Brian Tamanaha

Despite the life and death stakes, one gets the impression that our society is suffering from "death penalty fatigue." Polls show that the majority of the public is for the death penalty, and proponents are sick and tired of the obstructionist efforts of opponents.

Set aside the debate between advocates and opponents of the death penalty and consider instead a different proposition: assuming our society approves of the death penalty, it should be fairly administered.

It's hard to imagine that many people, including supporters of the death penalty, would disagree with this proposition. The problem with the public debate is that proponents of the death penalty tend to dismiss questions about fairness as merely another tactic raised by opponents, rather than a legitimate issue that everyone should be concerned about.

Of course it's fair, proponents (and judges) assume, and they point to the various procedural protections and years of appeals as conclusive evidence. They admit that a few mistakes have been made in the past (as DNA evidence has shown), but rarely any more; and a few will even acknowledge that there are persistent racial disparities in the imposition of the death penalty, but deny that this makes the system unfair with respect to any particular individual. And, anyway, they are sick and tired of these issues, which have been raised many times and settled by courts in favor of the death penalty.

But every judge and every fair-minded proponent of the death penalty should read a recent book by Craig Haney, Death by Design (Oxford 2005), which is a detailed exploration based on 25 years of studies of the legal processes that lead to the imposition of the death penalty.

Did you know that many people who vote to impose the death penalty would have voted instead to impose life imprisonment without parole if they had been informed that this was an option (that "life" really means the prisoner won't be let go)?

Did you know that many jurors misunderstand the jury instructions (specifically, the meaning of "mitigation"), and erroneously believe at the sentencing stage that the law in some sense requires the imposition of the death penalty?

These and many other serious issues surrounding the fairness of the imposition of the death penalty are explored in Haney's book. Anyone who claims to be informed about the reality of the death penalty, and any judge who participates in its imposition, has no excuse for not reading it.

This book does not challenge those who are convinced that the death penalty is a legitimate form of punishment. It does, however, point out (with a great deal of convincing empirical support) specific ways in which current procedures surrounding the imposition of the death penalty operate unfairly, and it proposes concrete and simple reforms to ameliorate the problems identified.

This book is not against the death penalty--it just wants the death penalty to be imposed fairly. And who can disagree with that?

Posted 5:45 PM by Brian Tamanaha [link]

Comments:

Re: Racial disparities.

"and a few will even acknowledge that there are persistent racial disparities in the imposition of the death penalty..."

Here's how I understand the facts: Blacks commit roughly (somewhat over) 50% of the capital crimes every year, but are somewhat less than 50% of those on death row and executed.

Thus if you are a white person and commit a capital crime, you are more likely to be executed for it.

Is the death penalty unfair to whites?

# posted by

Jonathan Rowe : 1:16 PM

This book is not against the death penalty--it just wants the death penalty to be imposed fairly. And who can disagree with that?

Except, the death penalty cannot be imposed fairly. If experience hasn't taught you that, you haven't been paying attention. Thinking (more accurately, hoping) that it can is asking for what never was and never will be.

In any case, I see little evidence that most death penalty proponents really care that it be imposed fairly. Since they assume that most murderers are poor black folk (i.e., not like them), they just want to strap the animals in and juice 'em. Appeals to some mythical "fairness" with regard to state sponsored murder will be about as successful as appeals to fairness in any other area are with the rednecks.

# posted by

Tom Beck : 9:03 PM

"Except, the death penalty cannot be imposed fairly."

I seem to remember the late Ernest Vandenhaag making the point that the "unfairness" of the death penalty was not that people who don't deserve to get it, are executed, but rather that many who do deserve to get it, are not.

If you look at the crimes for which the relatively small number of people are executed each year, they are so heineous and brutal, that it's hard to conclude that they don't deserve to die in a far more painful manner than what they end up getting, if their execution should actually be carried out.

# posted by

Jonathan Rowe : 9:32 AM

Some of us, jonathan, problematize the very notion of punishment. Some of us were raised or came to be part of religious or ethical traditions in which there is no moral right for any human to maliciously harm another: and especially in cases of retributive "justice". Then again, those who do subscribes to such beliefs hold very little power in society. In fact, most of America, it seems, however wrongly disagrees with tnb; Brian's book review makes clear that he hopes this book will speak to those most Americans, with the hope that we will at least achieve a _better_ system, if not the best one.

I can understand, and even at times support, incarceration for protection. And, given the choice, I would prefer a painless (or, e.g. with heroin, euphoric) death to a true life sentence. I do think society should take all reasonable measures to provide support and rehabilitation for individuals who society has deemed to dangerous; given limited resources, though, I understand if society decides that it is better served by investments in schools, etc., than training almost-incorrigibles.

I can understand the argument for punishment of various forms as disincentive for unfavorable behavior. We should carefully examine whether the current system is effective in this regard: it seems that fines to businesses who pollute can be effective, but I worry that violent "justice" can beget a violent populace. If a threat is placed, it should be made good on --- there's little room for lying in my Just Society --- but an amoral threat must not be carried out, so should not be used. Such ideas are written into our current criminal justice system.

But punishment because someone "deserves it"? That I cannot support. And that, it seems, is the only argument regularly put forward in favor of the death penalty. It's a shame that so many of my peers and countrymen do support retributive justice.

# posted by

Theo : 7:48 PM

-- do think society should take all reasonable measures to provide support and rehabilitation for individuals who society has deemed to dangerous --

That's so 70s Norman Mailer.

Out of the 4 traditional rationales for punishment: Rehabilitation, Restraint, Retribution, and Deterrence, Rehabilitation has been the one deemed the big "failure" by the experts.

Retribution, on the other hand, has a rich philosophical history. Retribution is the simple notion that a person morally deserves to be punished, regardless of other valid issues -- deterrence, restraint, etc. -- relating to punishment.

# posted by

Jonathan Rowe : 9:52 AM