All life is worth saving

Just as in Clarence Darrow’s day, the death penalty continues to be practiced in many American states. Yet around the world, the majority of nations no longer executes their prisoners, showing increasing support for the abolition of capital punishment. Recently, in December 2014, when the United Nations General Assembly introduced a resolution calling for an international moratorium on the use of the death penalty, a record 117 countries voted in favor of abolition, while only 38 nations, including the United States, voted against it. Indeed, falling just behind China, Iran, Iraq, and Saudi Arabia, the United States is recorded to have the 5th highest rate of execution worldwide.

Since Jamestown settlers first executed Captain George Kendall in 1607, jurisdictions across the United States have approved the execution of approximately 16,000 people by various methods, including hanging, firing squads, gas chambers, electric chairs, and lethal injection. As these executions continued throughout American history, many prominent abolitionists have raised their voices against capital punishment, both in the past and the present. Dr. Benjamin Rush, an eminent physician, author, and civic leader who signed the Declaration of Independence in 1776, was an early advocate for abolishing the death penalty, while many of the country’s founding fathers, including Thomas Jefferson, favored limitations on the practice. Most recently, during the 20th century, Dr. Martin Luther King Jr., Supreme Court Justice Thurgood Marshall, and author Sister Helen Prejean all emerged as outspoken opponents of capital punishment.

Over the course of 400 years, the popularity of the death penalty has fluctuated, with some states abandoning their use of capital punishment earlier than others. In the mid-1800s, death penalty abolitionists achieved some success, thanks largely to societal changes that included prison reform movements, religious revivals, an influx of new immigrants, and the rise of the anti-slavery movement. People interested in these issues, however disparate, found in each other a common purpose, arguing that the use of capital punishment reflected how those in power treated the poor and powerless.

In 1847, Michigan became the first state to abolish capital punishment in the United States. Like some other states, Michigan had gradually been limiting its use of the death penalty in the preceding decades, and by the 1840s, its legislature featured many reform-minded lawmakers. Rhode Island subsequently abolished the death penalty in 1852 and Wisconsin followed suit in 1853, prohibiting capital punishment for all crimes.

Throughout different abolition periods, such as the early 1900s and the mid-twentieth century, opponents of capital punishment have raised a variety of arguments against the practice. Many question whether the death penalty serves any valid purpose, suggesting it does no more to deter crime than the threat of imprisonment. Others reason that the death penalty is inhumane and therefore inconsistent with religious principles. Most importantly, many abolitionists have highlighted the obvious fallibility of a system based on human juries and judges. Indeed, this argument has gained clout in modern times, as scientific breakthroughs in DNA testing and investigative techniques have led to the discovery of innocent people on death row. The question of race – whether the death penalty can be applied fairly and without racial bias – has also emerged alongside concerns that capital punishment targets society’s most disadvantaged.
An important turning point arrived in the 1960s and 1970s, when the Supreme Court of the United States began to address the practice as a constitutional issue. In Furman v. Georgia (1972), Supreme Court Justices found that existing procedures for the death penalty violated the United States Constitution because of the broad discretion afforded to jurors, who were capable of arbitrary and racially discriminatory decisions.

Given the worldwide trend of countries prohibiting capital punishment, many observers predicted the case would end the death penalty in the United States. However, as part of a backlash against the Supreme Court, several state legislatures renewed their death penalty laws; and in 1976, the Supreme Court upheld some of these new procedures, reintroducing capital punishment as common practice and starting a new era for the practice.
Over the following decade, the Supreme Court evaluated another broad attack on capital punishment in McCleskey v. Kemp, in which Warren McCleskey’s attorneys presented statistical evidence illustrating the racial bias of the justice system. The Supreme Court, rejecting this claim, thereby affirmed that any changes to death penalty laws would have to established through political processes.

Ever since the United States resumed executions after 1976, nationwide jurisdictions have sent approximately 1,400 people to their deaths. In the modern era, 1999 was notable for the highest number of executions, with 98 death row inmates executed that year. While this number dropped to 39 in 2013, more than 3,000 people remain on death row across the country.

Recently, however, activists have found some success in illuminating the drawbacks of the death penalty through educational efforts. During the past decade, 7 states have repealed the practice of sentencing prisoners to death, including Illinois, the same state in which Clarence Darrow infamously defended murderers Nathan Leopold and Richard Loeb.

Presently, the federal government, along with 31 states, has upheld the use of capital punishment, whereas only 19 states (and the District of Columbia) have prohibited it. A Gallup poll in winter 2013 showed that the death penalty continues to be popular among American citizens – at least in theory – with up to 60 percent indicating their support for capital punishment in the case of convicted murderers. For some, the death penalty continues to serve as a fitting punishment and just retribution for society; for others, it continues to be justified by religion. Other advocates even assert that the death penalty may deter crime. Still, when asked to make a choice between capital punishment and life imprisonment without parole, support for capital punishment is shown to drop, as citizens are split equally between the two options.

In the past year alone, the debate surrounding the death penalty has been inflamed by botched executions, notably in the Arizona execution of Joseph Wood, who took 2 hours to die from lethal injection. There are also increasing concerns about the expense of the modern death penalty for taxpayers. In Texas, for example, the cost of a death penalty case today is thought to be nearly 3 times more expensive than imprisoning someone in maximum security for 40 years.

Charged and complex, the public debate surrounding the death penalty has once again been brought to the fore, even spilling over into international territory as European manufacturers dicontinue their supply of lethal drugs to the United States. Because the death penalty in America is largely a state issue, the success of abolition efforts will most likely be gradual. However, the recent global trend against capital punishment has been encouraging to those who, like Clarence Darrow, believe that both logic and humanity demand an end to the practice of killing prisoners.

(source: Jeffrey L. Kirchmeier is a professor of law at City University of New York School of Law and the author of Imprisoned by the Past: Warrant McCleskey and the American Death Penalty—-Oxford University Press blog)