Death Penalty as the Cruel and Unusual Punishment

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As society progresses through time, we like to think that we’ve left behind the ignorance of our forefathers. However, the continued use and acceptance of the death penalty within the American justice and penal system proves that in the 243 years since the Declaration of Independence was signed, we have not matured as much as we should have as a society. Currently in the U.S., capital punishment is utilized by 29 states, the federal government, and the military. The United States remains the only developed Western nation that continues to use capital punishment. The ACLU, in a statement, called the death penalty, “cruel and unusual punishment,” and went on to emphasize that the state should not have the ability to give itself the right to kill human beings, especially when it kills with, “premeditation and ceremony.” The continued used of the death penalty is faulty for many reasons, some of those reasons being falsely convicted persons being sentenced to death for crimes they did not commit, the economic effects of the executions, and the factor of inhumanity that’s involved. Due to these errors within the process, and the process itself being inherently flawed and therefor morally corrupt, the death penalty should cease to exist within the U.S. justice system.

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We all know the American justice system is not perfect. In fact, it’s far from it. A miscarriage of justice is not unlikely to happen. This can happen through a number of ways, including but not limited to policing mistakes, mishandling of evidence and incorrect witness testimonies. It is now clear that innocent people may be convicted and sentenced to death as long as the death penalty exists. It is unlikely that the appeals process (which focuses mostly on legal errors and not on the “facts” of the case) will catch all of the mistakes. The ACLU found that since 1973, over 156 people have been not only released from death rows in 26 states, but completely exonerated of the supposed crime that put them there. Additionally, it is important to note the demographic makeup of death row prisoners. African Americans make up 41 percent of the death row population, despite only make up 12.6 percent of the population in America. A 2006 study by Jennifer Eberhardt titled, “Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes”, and a 2014 study by Alberto Alesina and Eliana La Ferrara titled, “A Test of Racial Bias in Capital Sentencing”, came to a similar conclusion: that not only were there more legal errors and racial bias in cases that had black or African American defendants, but that defendants who looked more “black” and had white victims were more likely to be handed a capital punishment. Both these studies confirmed that the race of the defendant and the race of their alleged victim played a much larger role than anyone would want to admit. In a justice system that historically associates black skin and traits as criminal, can we really trust that the death penalty is being utilized in an ethical way?

Furthermore, the cost of both a death penalty trial and the carrying out of the deed itself is not economically viable. Trials in which the prosecutor is seeking a death sentence have two different phases: conviction (finding a person guilty or innocent) and sentencing. Special motions, appeals and extra time for jury selection (which is necessary in high profile cases, as most capital punishment cases tend to be) normally precede such trials. As a result, investigative costs are increased, mostly by the prosecution, but also by the defense in their attempt to protect the defendant. In a study titled, “The Cost of the Death Penalty in Maryland,” the Urban Institute found that trying a death penalty case in the state of Maryland cost the state and its citizens three times more than trying a non-death penalty case, costing the state approximately $3 million to try each death penalty case. In a study done by the California Commission for the Fair Administration of Justice in 2008, it was found that between the legal side of costs and the incarceration and death penalty side of costs, the whole system cost California $137 million per year. Without the death penalty costs incurred, the study found that the system would theoretically only cost $11.5 million per year, which is a dramatic decrease. Furthermore, when death penalty trials result in a verdict less than death or are reversed, taxpayers first incur all the extra costs of capital pretrial and trial proceedings and must then also pay either for the cost of incarcerating the prisoner for life or the costs of a retrial (which often leads to a life sentence). Additionally, the high cost of the trials and implementation of capital punishment takes funding away from other important crime preventative measures. Diverting the money to actual rehabilitative practices in prisons, investing it into improved policing practices, or other social services would be a much more constructive use of the funds.

In any discussion about the death penalty, the question of cruel and unusual punishment must always be discussed. Some argue that by nature, the theatrical nature that executions take on make them cruel and unusual. It becomes a spectacle and a shock performance rather than true justice. Additionally, executions in the past have been botched before, unnecessarily torturing inmates before they finally died. The most recent of these cases occurred in 2018, when Doyle Hamm, an inmate in Alabama was set to be executed. His defense team had warned the State that finding and artery to puncture would be extremely difficult, as Hamm has developed lymphatic cancer and carcinoma. However, against the advice of the defense and doctors, Alabama decided to go ahead with the execution. The executioners tried for two and a half hours to find a vein, leaving Hamm with wounds to his legs, ankles, groin and femoral artery. As a result, the execution was called off. In a statement made the next day, Jeff Dunn, the Commissioner of the Alabama Department of Corrections told reporters, “I wouldn’t necessarily characterize what we had tonight as a problem.” What is that if not cruel and unusual? Doyle Hamm is not an innocent man, but he is an old one and a sick one. He has expressed deep remorse for his crimes, and made strides toward rehabilitation while in prison. To be tortured and humiliated in that way, and then for officials to dismiss his experience as a nonissue is cruel and unusual. After the botched attempt, the Southern Center for Human Rights released a statement, calling the proceedings, “unconscionable”, and emphasizing that the, “attempted execution clearly demonstrates the cruelty and the torture of the death penalty.” In an op-ed published in the New York Times, titled, “What I Learned From Executing Two Men,” Semon Frank Thompson, the former superintendent of the Oregon State Penitentiary, details how he was in charge of executing two inmates under his watch, and how it affected him. In this piece, he writes, “I used to support the death penalty. I don’t anymore.” He goes on to say that the two inmates he was in charge of executing were the only two inmates Oregon had executed within the last 54 years (with the article being published in 2016). Thompson goes on to say, “It’s hard to avoid giving up some of your empathy and humanity to aid in the killing of another human being. The effects can lead to all the places you’d expect: drug use, alcohol abuse, depression and suicide.” Executions affect even the people in positions who are charged with performing them. How can we, in good faith and good conscience, legally mandate someone to aid in the murder, whether it be just or not, of another human being, knowing the effects it has on them? Does it not then, make not only the executions cruel and unusual, but the burden of performing one as well?

In short, we have to ask ourselves: How much longer will we allow this to continue? Though some argue that there are criminals that commit crimes so heinous that the death penalty is the only option, that is just morally, out of our hands to decided. If we kill people who kill, we are no better than them. In doing so, we become the very evil we sought to extinguish by ending their lives. The justice system should promote rehabilitation for criminals where it’s possible, and on the other side of that, give closure and justice to the families of the people lost to violent acts. The justice system should not promote the spectacle killing of troubled people in a twisted act of justice that isn’t actually just at all. Human judgement is not infallible, and neither is our justice system as it currently exists. Knowing all this, we cannot, we should not, in good conscience and morality, allow capital punishment to continue to exist in America. We have to do better and be better for the people who cannot be, and as awful and unthinkable as some of their crimes may be, find it within ourselves to accept, forgive and find closure elsewhere.  

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