Explaining Public Support for the Death Penalty
Over at The Huffington Post, Radley Balko looks at why Americans still support the death penalty and breaks down the support into three categories.
Most Americans support the death penalty out of a desire for vengeance or retribution. Some crimes, the thinking goes, are so heinous that death is the only appropriate punishment. According to Gallup, about 60 percent of death penalty supporters back capital punishment under some form of this reasoning. It’s probably also the strongest argument in favor of the death penalty.
But the hunger for vengeance or retribution can also cloud judgment.
Particularly heinous crimes often bring more pressure on police to arrest a suspect, and on prosecutors to secure a conviction. ProPublica recently published a lengthy investigation showing that the deaths of children in particular can cause law enforcement officials to fixate on a suspect, overlook evidence that contradicts their theories, and even find crimes where none may have been committed (charging accidental deaths as homicides, for example).
There are of course plenty of cases where there’s both a heinous crime and irrefutable evidence of guilt. But there have been a plenty of others where a defendant’s guilt at one point seemed certain and the state’s case later unraveled. There is honest disagreement over what role retribution should play in the criminal justice system. But it’s important to bear in mind that the desire for retributive justice can easily (and often does) bleed into vengeance. We want the criminal justice system to seek truth by way of reason, evidence, fairness, and good judgment. Vengeance doesn’t sit well with any of those values.
II. DNA Testing
Yet the scientific certainty DNA testing offers, in contrast to most other forensic specialties, also seems to have reassured the public that we’re now more likely making the right calls. According to Gallup, in 2003, 73 percent of Americans said an innocent person had probably been executed in the previous five years. That number dropped to 59 percent in 2009. In his concurring opinion in Marsh, Justice Scalia also wrote that an exoneration “demonstrates not the failure of the system but its success.”
The problem with that logic is that while DNA testing has exposed problems with the criminal justice system, the set of cases for which DNA testing is dispositive of guilt is actually quite small. It mostly compromises rapes and some murders (usually murders that also involve a rape). But it’s safe to assume that the flaws DNA technology has exposed persist outside this small percentage of cases and likely at about the same rates. For the people wrongly convicted in that larger pool of cases, there will never be any test to definitively establish their innocence. But it would be naive to think those people don’t exist.
III. Sanitizing Executions
America has come a long way since public hangings. Executions today are carried out in front of just a few witnesses. Nearly all are now done by lethal injection, often carried out by doctors. They more resemble a medical procedure, which conjures thoughts of healing, not of ending the life of an otherwise healthy person. Part of the continuing public support for the death penalty may lie in this way the government has sanitized executions to insulate the public from contemplating what’s actually taking place.
There’s a common perception that most states have settled on the lethal injection because it’s the least painful form of execution, or at least the most humane. But the procedure’s popularity may lie more in how it protects witnesses and the public from discomfort (and thus, preserve general support for the death penalty) than protecting the condemned from excessive suffering.
But the idea of bringing back firing squads or the guillotine would make most Americans cringe — even ardent death penalty supporters. That we’d recoil from the idea suggests that we’re gauging the humaneness of state executions not by the swiftness and painlessness they provide for the condemned, but by the amount of discomfort they arouse in the rest of us. We prefer the method of execution least likely to remind us that it’s actually an execution. And that suggests that we may not be as comfortable with executions as we think.
Executions themselves are also highly ritualized. State execution protocols tend to be specific, regimenting blocks of time for visitation with family, contemplation and spiritual guidance. In most states, the condemned is offered a last meal. In some states, the prisoner is showered and shaved. In California, he’s given a new uniform just for his execution. Ohio’s execution protocols run hundreds of pages long, and call for meticulous logs of the prisoner’s final hours, sometimes down to the second.
These rituals benefit the people carrying out the execution, giving them some detachment from what has to be a daunting and emotionally wrenching task. A checklist of procedures could provide some insulation from the moral weight of taking a life.
But these rituals also give the impression that such fidelity to procedure was present throughout the process, and too often that isn’t the case. Adhering to protocols like ensuring the specified number of guards walk the condemned man from his cell to the death chamber, that his last meal is delivered promptly at 6 p.m., or that he’s clean-shaven for his execution seem farcical when states have tried to execute a man whose court-appointed attorney slept through the trial, or whose prosecutor and judge didn’t disclose that they’d had an affair, or whose DNA was not compared to that found at the crime scene. In countless cases, prosecutors have withheld exculpatory evidence.
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