JUST REVENGE - Costs and Consequences of the Death Penalty

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Chapter One:
The Long and Bloody Past

[Executions in the US] [Abolition Movement in the US] [Why We Must Kill the Killers] [ Historical Trends]

Then shall his father and mother lay hold on him, and bring him unto the elders...and say this our son is stubborn and rebellious, he will not obey our voice; he is a glutton and a drunkard. And all the men of his city shall stone him with stones, that he die. So shalt thou put evil away from among you; and all Israel shall hear, and fear. -- Old Testament

Those who shew no mercy should find none; and if hanging will not restrain them, hanging them in chains, and starving them, or . . . breaking them at the wheel, or whipping them to death . . . should. --Paper presented before the English Parliament (1701)

Before there were prisons there was the penalty of death. In ancient times, executions were usually accomplished by stoning. These brutal events were often little more than spontaneous eruptions of mob violence. Stoning remained the dominant form of execution for hundreds of years and gradually the practice became, if not more civilized, at least more ritualized and formal. Among the ancient Greeks and Hebrews a clear etiquette of execution emerged. All that was necessary to trigger a stoning was an accusation by two witnesses with good standing in the community. Accusers would place their hands on the head of the defendant and describe the crime they had witnessed. The doomed man or woman was then walked, carried, or dragged to a tall rock or an elevated scaffold. With hands tied, the convict was stripped naked and then pushed from the platform by one of the witnesses. The second witness had the honor of casting the first stone. If the condemned man still showed signs of life, the people gathered to watch the execution joined in until the victim's bloody body lay motionless beneath a pile of rocks.

Many other forms of killing were soon devised. "Death by a thousand cuts" -- where small bits of flesh were carved away over a period of days -- was sometimes used in ancient China. During the rule of the Rajahs in 19th century India, elephants were sometimes used to make executions especially excruciating:

    The culprit, bound hand and foot, is fastened by a long cord, passed round his waist, to the elephant's hind leg. The latter is urged into a rapid trot through the streets of the city, and every step gives the cord a violent jerk, which makes the body of the condemned wretch bound on the pavement...Then his head is placed upon a stone, and the elephant executioner crushes it beneath his enormous foot.

In England, from as early as 1241 to as late as 1820, those convicted of capital crimes were hanged, drawn, and quartered. The prisoner was taken from his prison cell and laid on a sledge which was tied to a horse and dragged along the ground to the gallows. At the gallows, the prisoner slowly strangled while dangling from a rope (the "long drop" which snaps the spinal cord was a modern innovation in hanging). The executioner was often instructed to cut down the prisoner when "half dead" at which point the convict was disemboweled, his entrails thrown into a nearby fire, his head cut off, and his body cut into quarters. The decapitation and "quartering" of the transgressor served both dramatic and practical ends -- it added power to the execution ceremony and provided five parts of the corpse which could be displayed at conspicuous sites as visible warnings to potential wrongdoers. Indeed, during the seventeenth and eighteenth centuries many major crossroads in London were decorated with decaying corpses hanging from trees or stuck on poles. London Bridge was adorned with the heads of the recently executed, such heads having been "parboiled" (cooked in salt and cumin seed) to delay the decaying process and render them unappetizing to birds. Judging from an account in 1665, this process was apparently quite effective:

    And here I cannot omit to declare unto you the miraculous sight of this head, which, after it had stood up the space of fourteen dayes upon the bridge, could not be perceived to waste nor consume;...but grew daily fresher and fresher, so that in his lifetime he never looked so well; for his cheeks being beautified with a comely red, the face looked as though it had beholden the people passing by, and would have spoken to them...

Stoning and hanging were not the only methods of execution in early times -- only the most common. An impressive amount of sadistic creativity went into devising methods of killing those who dared to break the law. Some techniques involved little preparation or equipment: throwing the offender into a quagmire to drown; beating to death with fists, feet, and sticks; and beheading by sword or axe. More elaborate forms of execution included "breaking on the wheel" (popular in eighteenth century Germany and France) and "pressing to death." The "wheel" involved binding the hands and feet of the criminal to a large cart wheel. The wheel was positioned on an incline with the criminal facing outward to afford a better view of the spectacle. It was important for the audience to have a clear view because public officials believed that witnessing these gruesome executions would inspire fear and keep others from breaking the law. The executioner, wielding a iron bar, methodically broke the arms and legs in several places before bringing death by a blow to the throat or the heart. The procedure might involve as many as forty blows and last as long as two hours. "Pressing" took longer and was generally reserved for those who were reluctant to confess to crimes they may or may not have committed. The prisoner was stripped naked and tied, face up, to the floor of the prison cell while iron or stone weights were loaded on him. More weights were piled on each day producing agony but not death. The execution procedure required that the prisoner "shall have no more sustenance but the worst bread and water," and that, "He shall not eat the same day on which he drinks, nor drink the same day on which he eats; and he shall so continue until he dies." Not surprisingly, this procedure was almost always successful in extracting the desired confession.

For more than a century capital punishment was not confined to humans. In several European countries, animals who killed humans might also find their way to the gallows. Of course, pigs, cows, and horses could not provide useful testimony on their own behalf, but humans could provide eyewitness or character testimony. Attorneys defended animals accused of murder in trials quite similar to those afforded human defendants. In 1396 a pig accused of fatally injuring a child was dressed in the suit of a man and publicly hanged. In 1750 a man and a donkey accused of having sexual intercourse were scheduled to be burned together at the stake. In the end, the donkey was spared because a local minister and other leading citizens testified that the beast was of noble character and an unwilling participant in the depravity. The man, however, was not so lucky.

Method and style of execution depended not only on the gravity of the crime but also on the gender and social standing of the offender. Burning at the stake was typically reserved for women. Though burning is surely a hideous way to die, it was considered far less excruciating than the disembowelling and quartering that men faced for similar crimes. A woman who was tarred and bound before the fire was lit could be "mercifully" strangled at the stake before the flames enveloped her body. There was also the question of decorum. As Sir William Blackstone explained, women were granted the more dignified method of death because "the decency due to their sex forbids exposing and publicly mangling their bodies." Blackstone adds that such small kindnesses reveal of the "humanity of the English nation." In England, one final accommodation was made to women -- pregnancy could postpone or prevent execution. If the condemned was known to be or suspected of being pregnant, a panel of twelve matrons was appointed to investigate the matter further. If the panel determined that the prisoner was with child, a stay was granted. But mercy had its limits -- many women were hanged shortly after giving birth in their prison cell. In 1931, a law was passed forbidding the death sentence for pregnant women.

Executions in the United States

Nearly four centuries have passed since the first documented lawful execution on American soil in 1608 (Captain George Kendall was killed for the crime of theft in Virginia). Although early colonial laws were adapted from British law, capital punishment in the colonies was both more humane and more restricted than in seventeenth century England. At a time when drawing and quartering, disemboweling, and burning at the stake were still commonplace in the civilized countries of Europe, hanging--at the time regarded as the most humane method--was almost always the means of execution in the colonies. However, just as in Europe, hangings were festive public spectacles. The condemned was forced to take a slow wagon ride to the gallows, often sitting atop the very coffin he or she would soon occupy. The rowdy crowds who witnessed the hangings often numbered in the thousands.

Under British law at the time, there were more than 50 capital offenses (including vagrancy, heresy, witchcraft, rape, murder, and treason) while, on average, only about a dozen crimes were punishable by death in the colonies. But lists of capital crimes varied widely by territory. Puritan-influenced Massachusetts Bay Colony listed statutory rape, rebellion, adultery, buggery, idolatry, witchcraft, bestiality, man stealing, and blasphemy as capital crimes. In contrast, Quaker-influenced South Jersey declined to adopt capital punishment in its original charter. Behavior that threatened property or the social-economic order were often designated as capital crimes. In North Carolina, for example, capital offenses included circulating seditious literature among slaves, inciting slaves to insurrection, slave-stealing, and harboring slaves for the purpose of setting them free. Similarly, Virginia listed only five capital crimes for whites, but 70 for blacks!

Lynching, an unofficial form of execution, was widespread in early America. Those who were frustrated with the workings of the legal system often formed spontaneous mobs of vigilantes. Although records are sparse, it appears that the number of lynchings peaked during the 1890s when 1,540 were performed. This exceeded the number of state authorized executions by 442.

The Abolition Movement in the United States

The movement to abolish the death penalty in America has been marked by a long series of advances and retreats. In 1787, at the home of Benjamin Franklin, influential citizens of Philadelphia gathered to hear an eloquent speech by Benjamin Rush. Rush (a physician and signer of the Declaration of Independence) whose thinking was indebted to the Italian Enlightenment thinker and jurist Cesare Beccaria, argued that executions brutalized the population and were an improper use of state power. Rush's efforts gave momentum to the abolition movement and by 1793, Pennsylvania's Attorney General, William Bradford, proposed the notion of degrees of murder. Bradford defined first degree murder as "willful, deliberate and premeditated killing" or murder committed during "arson, rape, robbery, or burglary." His distinction was formally adopted the following year and use of the death penalty became restricted to first-degree murder. Pennsylvania also launched a national trend in 1834 by banning public executions. Although public executions were quite rare after the dawn of the twentieth century, public interest in such spectacles had not waned. In 1936, this country's last public hanging (in Kentucky) attracted a crowd of nearly twenty thousand.

In 1838 Tennessee abandoned mandatory death sentences for capital crimes and gave jurors the option of imposing a sentence other than death. A few states went even further. Michigan eliminated capital punishment for all crimes except treason in 1846, twenty years earlier than any European nation. Rhode Island and Wisconsin became the first two states to eliminate capital punishment for all crimes in 1852 and 1853, respectively. At least until the early 1900s, the abolitionist movement appeared to be gathering momentum. But most states that experimented with abolition later reinstated the death penalty (e.g., Colorado, Kansas, Maine, New Mexico, and Oregon). At present, 38 states and the federal government have laws authorizing capital punishment. States without the death penalty include Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin.

Of course, there is a difference between laws authorizing capital punishment and actual executions. Throughout U.S. history, the number of death sentences and executions has always been small when compared with the number of murders. Individuals convicted of murder are rarely executed. The rate of execution peaked in 1938, when there were 2.01 executions per 100 homicides in states with the death penalty. Even for capital homicides -- the murders the legal system considers the most abhorrent -- the execution rate is less than 10 percent. The annual number of executions was highest during the 1930s and reached a record high in 1935 when 199 people were put to death. Following the 1930s, the number of executions declined steadily for 27 years until they halted for nearly a decade. Between June 3, 1967, and January 17, 1977, no one was executed in the United States. This moratorium was aided by low levels of public support for capital punishment, and there was presumably little political will to carry out executions when the future of capital punishment was in doubt.

In 1972 the Supreme Court evaluated the constitutionality of the death penalty in the case of Furman v. Georgia. Evidence of "arbitrary and discriminatory" sentencing persuaded the Court that the death penalty, as then administered, violated the Eighth Amendment's prohibition against "cruel and unusual punishment." In Gregg v. Georgia (1976) and its companion cases, however, the Court decided that, by restructuring the capital trial and guiding the discretion of jurors, death sentences could be fairly applied. The moratorium on executions ended in 1977 when convicted murderer Gary Gilmore halted further appeals on his behalf and demanded to be executed by a Utah firing squad. Since Gilmore's execution, nearly 400 people have been executed. More than three-quarters of these executions have taken place in five southern states: Florida, Georgia, Louisiana, Texas, and Virginia.

Why We Must Kill the Killers

In ancient times, one murder would often incite several other murders and provoke an expanding "blood feud." A victim's family might seek vengeance by killing a member of the murderer's family, provoking a long cycle of murder and retaliation. By seizing control over the punishment of murderers, the state preserved community order and restricted the scope of killing. A murder was avenged by taking only the life of the murderer, and the nearest relative of the victim was sometimes permitted to serve as judge and executioner. This method of satisfying the urge for revenge maintained social order and prevented blood feuds from spinning out of control.

Capital punishment was not the only penalty for murder. For example, the Anglo-Saxons developed an elaborate system of fines. Instead of killing the murderer, a payment to the family of the victim could sometimes be substituted, with the assessed fine depending on the official value of the victim's life: "If a freeman slew his thrall, he paied a nominal fine to the king for a breach of the peace; but if a slave killed his master the doctrine of blood for blood was carried into effect."

Early justifications for killing wrongdoers rested on religious authority. Religious leaders insisted that executions were a means of carrying out the will of God. According to the laws of Moses, the death penalty was a way to appease God and avert famines, plagues, and other misfortunes that might result from "God's fierce anger" against any community that failed to punish sinners. The sinner was killed in order to "purge the evil from the midst of you." In New England, the religious nature of the execution was made explicit by the practice of having ministers deliver a sermon from the gallows as a prelude to a hanging. These sermons -- which were delivered routinely from 1674 to as late as 1825 -- relied heavily upon Scripture and emphasized the community's duty to avenge God and avoid his wrath. Spectators were warned that, "If we will not pronounce such a villain accursed, we must be content to bear the curse ourselves...The land cannot be cleansed, until it hath spued out this unclean beast." As American society became more secular, scriptural justifications began to lose some of their resonance. Simple vengeance then rose to become the dominant justification. Vengeance served as a compelling justification for several decades, until religious and political leaders began to challenge the morality of revenge.

Justifications for the death penalty rested not only on divine law but also on human order. Noah Hobart, a leading Connecticut minister, argued in 1768 that the goal of punishment was social peace and security and that the seriousness of a crime is measured by the "tendency to destroy the public good, or the safety and happiness of society." The moral authority of the state was highlighted by emphasizing the fairness of the legal procedures that led to conviction and execution. By 1800 gallows sermons reminded audiences that the condemned prisoner "had the assistance of the most able counsellors and advocates, who appeared to adduce every argument and motive that might possibly operate in your favar." Further, the prisoner was reminded that, "The evidence was so clear against you as to induce twelve sober, judicious, disinterested jurors, on their oath to pronounce you guilty".

Deterrence, with its considerable common-sense appeal, has always been the most prominent feature of arguments seeking to justify capital punishment based on its social benefits. According to the deterrence argument, the death penalty actually saves lives by discouraging potential murderers. The Greek philosopher Pythagoras expressed faith in the principle of deterrence, and the Roman philosopher Seneca argued that "the more public the punishments are, the greater the effect they will produce upon the reformation of others." English thinkers such as William Paley helped shaped the American colonists view of the utility of punishment. In 1790, Paley wrote that the aim of punishment was not revenge but "prevention against future offenses of the same kind...by deterring others by the dread of his example." The theory of deterrence remains a major justification even today.

Leaving aside the validity of the theory of deterrence for the moment (it is the subject of Chapter 6), its ascendance poses a fundamental problem: If punishment deters, then harsh punishments should deter best, and the very best results should be obtained if many types of crimes are punished in the harshest possible manner. If the penalty of death deters murder, then it should also deter theft or adultery or blasphemy. And if the possibility of death isn't a powerful enough deterrent, death could be made more terrifying by torturing before execution and mutilating the corpse after death. As noted by one historian, "No means was deemed too foul, too savage, or too inhuman, if it were thought to prove an effective deterrent." Today, while justifications based on divine law and deterrence persist, their relative importance has faded. Other rationales for support or opposition have moved to the foreground: financial cost, fairness of application, revenge, discrimination, wrongful conviction, and public support. These issues are closely examined in the chapters that follow.

Historical Trends

The death penalty has evolved over many centuries. If we look at carefully at this long evolution we can spot four consistent trends. The first trend has been a dramatic shrinking in the number and types of crimes punishable by death. For some 150 years in England (until the death of George III in 1820), more than 200 crimes were punishable by death. Petty theft and other crimes which seem trivial by modern standards could cost a criminal his life. As one observer put it, "We hanged for everything -- for a shilling -- for five shillings -- for witchcraft -- for things that were and things that could not be." In most countries the list of capital crimes kept getting shorter until the death penalty itself was finally erased from the law of the land. The renowned attorney Anthony Amsterdam sees this trend as "the slow but absolutely certain progress of maturing civilizations that will bring an inevitable end to punishment by death." In many countries this "inevitable end" has already been reached. The U.S. now stands alone as the only western democracy that still executes its citizens.

Even in the United States, lists of capital crimes have been steadily shortened so that, in most states, they now include only first-degree murder with "special circumstances." Circumstances which define a murder as "death eligible" vary from state to state but generally include the following: (1) murder committed in the commission of a felony (e.g., robbery, rape, or kidnapping); (2) multiple murder; (3) murder of a police or correctional officer acting in the line of duty; (4) especially cruel or heinous murder; (5) murder for financial gain; (6) murder by an offender having a prior conviction for a violent crime; and (7) causing or directing another to commit murder. Approximately 80% of capital cases involve defendants charged with the first circumstance -- murder during the commission of a felony (so-called "felony-murder").

A second trend involves the attempt to lessen the cruelty of executions by replacing one execution technology with another, seemingly more humane, technology. Without exception, the claim has been made that each new method was quicker and less painful than its predecessor. For example, Doctor Guillotine, confidently declared that the victims of his killing device would feel nothing more than a "slight sensation of coldness on the neck." In a similar vein, Ronald Reagan used a folksy analogy to suggest that lethal injection might produce a quick, painless death for condemned prisoners:

    "I know what it's like to try to eliminate an injured horse by shooting him. Now you call the veterinarian and he gives it a shot and the horse goes to sleep -- that's it. I myself have wondered ...if there aren't even more humane methods now -- the simple shot or tranquillizer."

In the 1800s hanging was the most common means of execution. It was eventually replaced by electrocution, then by lethal gas and, most recently, by lethal injection. Currently, 27 states use lethal injection, 11 use electrocution, 4 use lethal gas, 2 use hanging, and 1 uses a firing squad. In states that authorize more than one method, the condemned prisoner is usually able to choose the means by which he will die.

Although each change in the method of killing was designed to make executions more humane, questions have been raised about the "humaneness" of every method. The question of whether execution is cruel and humane is central to the death penalty debate and will be examined at length in Chapter 3.

A third trend has been the attempt by policy makers to ensure that death sentences are imposed fairly and rationally. To make imposition of the death penalty fairer, courts and legislatures have, at various times, enacted mandatory death sentences for specified crimes, forbidden the practice of mandatory death sentences, broadened the sentencing discretion of jurors, and narrowed the sentencing discretion of jurors. Unfortunately, these efforts have failed to produce a fair and rational system of capital punishment. This issue of fairness will be discussed in Chapter 5. Race, social class, and even geography continue to influence which defendants are sentenced to live our their lives in prison and which are sentenced to die in the execution chamber.

The fourth trend involves what might be called the sanitizing of executions. In the 1700s and early 1800s, executions were usually public events witnessed by hundreds or thousands of rowdy spectators. A carnival atmosphere prevailed, and the day's festivities often included several hangings. Execution was swift, often occurring only days or weeks after conviction. In contrast, today's executions are conducted late at night, using well-defined and specialized procedures. These modern events are witnessed by only a handful of observers (e.g., journalists, relatives of the condemned prisoner, relatives of the victim) and occur, on average, eight years and five months after conviction. Unfortunately, the well-intentioned regulation of our system of capital punishment (and even the use of such euphemisms as "capital punishment") has the secondary effect of enabling citizens to distance themselves psychologically from the act of killing. Albert Camus made the point forcefully nearly forty years ago:

    The survival of such a primitive rite has been made possible only by the thoughtlessness or ignorance of the public... When the imagination sleeps, words are emptied of their meaning: a deaf population absent-mindedly registers the condemnation of a man. But if people are shown the machine, made to touch the wood and steel and to hear the sound of a head falling, then public imagination, suddenly awakened, will repudiate both the vocabulary and the penalty.

In our time, the public imagination still sleeps, but it is an uneasy, fitful sleep. As prisoners pile up on expanding death rows, the crushing costs and troubling consequences of the death penalty become much harder to ignore. This book is an attempt not only to "show the machine," but to expose the social, political, moral, and economic consequences of killing people who have killed.