Life, Liberty, and the Pursuit of Saving It

11/2/2011

Dr. Johns

Life, Liberty, and the Pursuit of Saving It

Cody Coppola

Captain George Kendall and Frank Garcia were born hundreds of years apart from each other. The two men were of different nationalities and lived in two completely different areas of the United States, one even before it was The United States. The list of differences of these men could go on much longer but their similarity is more important. The two men are the furthest outliers of the capital punishment timeline. Captain George Kendall was executed in 1608, the first government sponsored execution in the new world, by a firing squad. (Death Penalty Information Center, 2011) Even the two men’s crimes could not be more different: Kendall was arrested and charged with treason for the Spanish government while Garcia had been convicted of a double homicide. The latter was executed just days before the writing of this paper on October 27, 2011. (Death Penalty Information Center, 2011) In between these two men exists a rich history of death and crime with individuals passionately placing themselves on both sides of the metaphorical fence.

Capital punishment was not considered a violation of human rights until midway through the 20th century, coinciding with the end of World War II. (Bae, 2007) The atrocities that the World witnessed during the war were of such a heinous nature that public opinion began to shift against the right of the state to execute and began to favor the individual’s right to life. The first legal step towards this was the signing of the Universal Declaration of Human Rights at the United Nations General Assembly on December 10th, 1948. (Williams, 1981) Herein lies the basis for many arguments against the death penalty: the use of rhetoric stating that “everyone has the right to life, liberty and security of the person…..no one shall be subjected to torture or to cruel, inhuman or degrading treatment of punishment” (Williams, 1981)I believe that the United States of America should change its current policy on capital punishment in favor of an abolitionist viewpoint. The U.S’s current implementation of capital punishment is marked with wrongful and discriminatory executions, international strife, and financial hardship that negatively affect the country. These negatives do not outweigh capital punishment proponent’s largest defense: deterrence nor is it scientifically supported.

The years that followed the United Nations General Assembly were marked with the creation of many important international documents in the human rights struggle. In 1966, the International Covenant of Civil and Political Rights (ICCPR) adopted a protocol that stated that “no one within the jurisdiction of a State Party to the present Protocol shall be executed.” (Second Optional Protocol for the ICCPR, 1991) This protocol all but abolished peace time executions with only small reservations for war-time infractions. The European Convention of Human Rights (ECHR) adopted Protocol Number 6 in 1983 which laid a similar framework as the protocol adopted by the ICCPR earlier. In 2002, the 13th Protocol to the ECHR was adopted which abolished the war-time reservation completely abolishing the death penalty. (Second Optional Protocol for the ICCPR, 1991)

These protocols have been a driving force in the abolition of the capital punishment worldwide. Twelve countries have abolished the death penalty as of 1970. In the past 40 years that number has grown to 124. (Bae, 2007) Amongst these countries the Unites States is noticeably absent. In fact, of all the proposals that have been proposed and ratified worldwide, the United States has signed only one, the Second Optional Protocol to the International Covenant on Civil and Political Rights, and has only agreed to follow Article 7 which would prohibit the execution of individuals under the age of 18 and that no cruel, inhuman or degrading treatment of punishment would occur. (Bae, 2007) The latter statement is already outlined in the United State Constitution under the fifth, eight, and fourteenth amendments. (US Constitution) During this period when most European nations were abolishing or diminishing their usage of capital punishment, the United States was doing its best to pick up the slack. The 1980s marked the beginning of significant rise in the number of executions that peaked towards the end of the 1990s. (Death Penalty Information Center, 2011) Of the 1273 individuals who have been killed by the state in the United States, over 90% of them have been executed since 1990. (Bae, 2007)

Despite the evidence from Europe that capital punishment is the exception and on its way out, different figures have arisen from Asia and other countries, the United States most notably. While the vote for the Second Optional Protocol to the ICCPR was passed by 59 countries, 26 opposed the legislation. (Hood, 2008) In 1999 the European Union introduced a draft resolution into the General Assembly of the UN that further pressed all countries who had not ratified the articles on capital punishment to do so. The resolution featured 73 countries and sparked a retaliatory resolution led by Singapore featuring 70 cosponsors and eventually leading to a breakdown of talks. The matter was resolved in November 2007 when a resolution for a moratorium on all executions was passed by a 2-1 vote. (Hood, 2008) The countries who have opposed legislation so far have been predominantly third or fourth world countries, with countries like the United States and Singapore acting as outliers. (Hood, 2008) Despite the presence of these impoverished countries marked with injustice the United States’ presence on the side of opposition makes it difficult to argue that abolition is the right path of freedom and democracy.

The United States has released multiple press releases and government documents stating that capital punishment is just in our society and has retributive and deterrent values that are necessary for our society to continue to function properly. (The Death Penalty in the OSCE, 2006) While there is sufficient evidence that the first claim is a fallacy the latter argument is even more disturbing. These documents state in simplistic terms that the United States not only condones retributive violence but encourages its existence. This domestic viewpoint on a punishment that Western Europe and many developed nations deem cruel and unusual goes not against not only the United States foreign stances but against clear language used in its Constitution.

There are currently 23 countries who legally execute criminals as of 2010. (Amnesty International) These countries are, in descending order of 2010 executions, The People’s Republic of China, Iran, North Korea, Yemen, The United States, Saudi Arabia, Libya, Syria, Bangladesh, Somalia, Sudan, Palestine, Egypt, Guinea, Taiwan, Belarus, Japan, Iraq, Malaysia, Bahrain, Botswana, Singapore, and Vietnam. (Amnesty International) Of these countries only 4, Japan, Singapore, The United States, and Taiwan reside in the first world. (Milanovic, 2011)The theory of a first (and second, third and fourth) world revolve around the measurement of gross domestic product and countries relations to each other. The poorest rich country makes up the bottom rung of the first world and then all countries 1/3 poorer, 2/3 poorer, and less make up the next three worlds respectively. (Milanovic, 2011) The first world is characterized by economic and political stability and acts as a benchmark for countries to strive to reach. It’s not surprising then that of the 31 countries comprising our world’s upper echelon only 4 currently have state sponsored executions. Of these 31 countries the overwhelming majority reside in Western Europe and specifically the European Union.

A prerequisite for admission into the European Union isthe abolition of capital punishment.The European Union has extorted pressure on entering countries due to the economic power that this conglomeration holds and the chance to become a member and share in this economic prosperity. This leads to the question when will that pressure make its way stateside and have legitimate effects? The answer was 2001 when then President George W. Bush took his first trip across the Atlantic to discuss trade and security issues. (Quigley, 2003) Before he could address these issues President Bush was greeted with a barrage of questions involving our nation’s acceptance and continued use of capital punishment. The international sentiments revolving around the issue have become so strong that many nations, including nearby neighbor Canada, will no longer extradite criminals back to the United States unless thereis a guarantee that capital punishment will not be sought in the legal process. (Quigley, 2003) The European Court of Human Rights has acted before, notably in a 1989 case involving Virginia and England, barring European nations from extradition. (Quigley, 2003) The council cited the man’s mental condition and the quality of Virginia’s death row as factors that determined a capital punishment trial would be indicative of inhumane and degrading treatment. (Soering vThe United Kingdom, 1989)

This strong opposition to capital punishment has already led the United States to abolish the death penalty in regards to minors and the mentally retarded. Both of these victories have been achieved through the filings of amicus curiae briefs, legal documents that are provided by a third party in deciding legal matters. (Quigley, 2003) These international documents hold considerable clout to the international community. In order to process a great deal of this information the International Court of Justice was established in 1945 by the United Nations. Frequently international legal matters have flowed through the halls of this institution whose judgment serves as law for disputing countries. The United States’ legal proceedings in capital punishment trials have come up multiple times in the court, most notably a handful of cases from Texas. Mexico has sued the United States over the treatment and lack of legal rights that were provided for Mexican men in Texas murder trials. (Quigley, 2003) Frequently these men were not provided their Miranda rights or when they were they were in English or not properly translated for the men. (Quigley, 2003) The court ordered that the trial and subsequent executions be postponed until the legal proceedings had finished and the rights of these men were properly accounted for. (Quigley, 2003)

No argument on either side of this issue is as concrete as the fiscal statistics surround state funded executions. The United States is currently in the beginning stages of a depression/recession. During these hard times the nation is faced with a mounting debt and financial hardships for all of its citizens. The continued use of capital punishment can best be summed up using one term “fiscally irresponsible.” The American debt is nearing 15 trillion dollars at the time of this paper and a significant portion is could be alleviated by abolishingthe usage of capital punishment trials and execution. (U.S. Government, 2011) Criminals who are tried and convicted with a capital punishment sentence are the most expensive prisoners currently in the judiciary system. (Potter, 1999; California Commission on the Fair Administration of Justice, 2008; Dieter, 2011)

Despite the fact that paper literally grows on trees, money is not as renewable as some would think and it is hard to argue against responsible spending. All of the statistics that will be provided do not just include the 1273 capital cases that ended in a guilty conviction but all those that ended in not guilty or whose sentence was reduced to life without parole. Cases that pursue life without parole from the onset will be used as comparisons for price differences between trials. In New York $1.8 million dollars could be saved per case. (Haines, 1996) That number almost doubles in Florida to $3.2 million and finally balloons to $15 million dollars in California. (Haines, 1996) The annual figures for this data begin to show how much can be saved by a policy change to life without parole. California’s government can be spared $90 million dollars annually while Florida could keep up to $50 million. (Haines, 1996) Federal trials pushing for capital punishment come with even higher price tags due to added scrutiny and higher costs of individuals involved with the cases and the extra time the cases go on for. (Prejean, 2005) The last federal execution was that of the Oklahoma City bomber Timothy McVeigh; his trial and executions cost the federal government over 80 million dollars when all was said and done. (Prejean, 2005) With recent changes to the criminal justice system to better serve citizens with correct and fair trials, such as the appeals process, has driven the price tag of capital punishment up another half a billion dollars onto its already sizeable price tag. (Death Penalty Information Center, 2011) The most recent of these changed occurred with the decision of Wiggins v. Smith in 2003. (Prejean, 2005) This landmark case now forces states to pay the bill for the services of mitigation specialists for all defendants in capital cases. (Prejean, 2005) Unlike non-capital court cases juries in capital cases must not only decide if the party is innocent or guilty but also to recommend whether or not the defendant should be executed or not. (Butler, 2007) This added responsibility adds another dimension to jury selection something referred to as “death-qualification.” During this process potential jurors are screened to find out if they would be willing to sentence someone to death if the situation were to arise in the case. (Butler, 2007) Passing this screening deems someone “death-qualified” and allows them to serve on a capital jury. The members who have historically passed and become “death-qualified” have been markedly different from their excluded counterparts on almost all psychologically and demographically measurable criteria. (Butler, 2007) These jurors are predominantly middle to upper class white males who are Republican and Christian in beliefs. (Butler, 2007) This makes it nearly impossible for minorities or anyone not making up this narrow definition to receive a fair and impartial trial by jury. Not to mention these juries are not just fundamentally unsound but fiscally irresponsible. The elongated screening process can increase the amount of time and money used to make up the jury three fold in comparison to the cost of jury selection innon-capital trials. (Death Penalty Information Center, 2011)

Despite the staggering financial figures money is not the only cost of these trials. Mandatory appeals, stays of execution, and general longer length of capital punishment trials means that these cases hang up the courts for extended periods of time. The State Supreme Court spends almost half of their time dealing with appeals to the death penalty while the US Supreme Court takes roughly a third of their time hearing appeals. (Lindner, 2003) Obviously the theory around lost time in the courts is an ambiguous one and one that asks for justice to be rushed. The courts are currently set up with the long appellate process to eliminate the chances of type II errors, convicting a guilty individual. Once again changing the sentence to life without parole would not only lower the physical costs but also speed up the process overall, dealing swifter justice.

In the context of innocent being executed, the severity of the issue is largely due to the finality of the sentence. While there is currently a much longer appellate system in place this has not always been the cases and executions have taken place less than a year or sooner after a conviction. (Hood, 2008) While fixing this problem completely would be another paper entirely, focusing on reworking the legal system as a whole, the alternative sentence of life without parole would act as a worthy punishment as well as be open to change if new evidence arose. Since 1973, 95 prisoners have had their verdicts overturned and dubbed innocent. (Simon & Blaskovich, 2002) That is one out of every eight scheduled executions. What is even more striking is that this figure is not entirely accurate; DNA testing is still not allowed in all of the previous decisions and if this was ever implemented the number would likely be much larger. (Simon & Blaskovich, 2002) While the acquittal rates for executions have risen they pale in comparison to the media attention swell that occurred during the late 90s and early 00s. This disproportionate swell can be attributed to a large number of research studies and the increased use of DNA testing in capital cases during this timeframe. (Simon & Blaskovich, 2002) While the 12.5% exoneration rate in this study may seem high it pales in comparison to the study conducted by Columbia University Law School. Columbia looked over cases involving the death penalty from 1973-1995 and found that 68% of the over 4,500 cases were wrought with “serious errors”. (2000)While these errors may not have turned over an incorrect verdict the finality of these sentences should be carefully examined when the cases have such serious errors two out of three times.