The execution standard

October 9, 2013 – Philadelphia Inquirer

As the oldest constitutional democracy in the world, the United States is often criticized for continuing to carry out state-sanctioned executions. Over the past couple of generations, every European country, with the exception of Belarus, has outlawed the death penalty. The principle is enshrined in the Charter of Fundamental Rights of the European Union.

But we have not always been the throwbacks. In fact, in the 17th and 18th centuries, the English colonies had far fewer capital laws than England and other European states.

My students have been reading the Massachusetts Body of Liberties, written in 1641 as a guide for the colony’s General Court. It included 12 capital laws. Religious crimes such as witchcraft and blasphemy came first, then murder (three different types), then sex crimes (rape was not among them), followed by kidnapping, bearing false witness in a capital case, and treason. That seemed like a lot, until we discovered that the list of capital crimes back in the old country was more than 10 times as long.

The Puritans were certainly not free thinkers. They harassed and tortured religious and political dissenters, and they were perfectly willing to execute criminals in capital cases. But they radically reduced the number of offenses punishable by death under English law.

Forty years later, William Penn established a colony in which the trend continued. Early-18th-century Pennsylvania statutes included only two crimes punishable by death: murder and treason. Quakers’ pacifism certainly contributed to their lack of appetite for capital punishment, as did their belief that there is that of God in every human being. Pennsylvania set the standard for the English colonies and for the rest of the European world.

Since then, in America, the tendency has been toward more capital laws. Even Penn’s proprietary colony added more in the mid-1700s. None of the students guessed that one of those later capital crimes was counterfeiting. At the time, the local economy was entirely dependent on local paper currency, and the danger posed by counterfeiting was so great that Penn’s successors made the production of fake bills punishable by death.

Across the country, a range of transgressions, from inciting slave revolts, to horse and cattle stealing, to rape, to kidnapping, to high-level drug trafficking, have all been, or remain, punishable by death. Federal statutes currently list a number of capital offenses, most falling under the overall definition of treason.

In recent decades, the Supreme Court has generally moved to restrict the crimes for which a person may be sentenced to death. In some cases the states have responded by enacting death-penalty statutes that narrow the definition of a particular capital offense. One wonders whether their goal is simply to come up with justifications for preserving the state’s power to execute its citizens. Shouldn’t we be looking for reasons not to take lives?

Thousands of Americans have been put to death since the founding of our republic, and the documents and data we study in our American history course provide little evidence that the threat of capital punishment has acted as an effective deterrent or that it has made the rest of us safer. It is also difficult to see how the government-sanctioned killing of citizens – even for particularly heinous crimes and even when the evidence is overwhelming – makes us a more just, more humane, or more ethical society.

Of the 18 states in which the death penalty has been abolished, Michigan was the first, in 1846, Maryland the most recent, in 2013. Perhaps by the end of this century, the remaining 32 states and the federal government will turn again in the direction Penn pointed us and leave capital punishment behind for good.

16 thoughts on “The execution standard

  1. Good article (and painting of the young Billy Penn).

    I often feel that a vicious murder ought not lead to the execution of the criminal BECAUSE DEATH WILL SPARE HIM/HER FROM SUFFERING THE TORMENT OF LIVING WITH HIM/HERSELF (JAILED ALWAYS). Dastardly types don’t deserve the too-easy peace of the grave. Why should the state provide release (especially when officials seek to guard prevent prisoner suicides–sometimes)?

    Why do you think the execution-benefit-to-murderers reason for opposing execution is so rarely cited in publications? One hears it fairly often from (unpublished) people.

    • The execution-as-benefit argument probably doesn’t appeal much to either proponents or opponents of the death penalty, which may explain why it rarely appears in print. Your comment reminds me of cases in which accused murders have asked for the death penalty. That seems to turn an execution into an assisted suicide.

  2. Great article on capital punishment. Every congressman should have a history teacher on his staff.

  3. What is amazing is how strict constructionists like Scalia and Thomas can rationalize around the fact that we put people to death in 1787 for lots of crimes that we would not today as it would be “cruel and unusual punishment”. Even if not usual, the conjunctive “and” requires that it also be cruel. If it was not cruel in 1787 and we are to take the Framers at their meaning in 1787, not some “evolving notion,” how can they not uphold capital punishment for horse thievery and buggery, etc. ? Fodder for another article perhaps.

  4. My son Elias is a junior at FCS. My wife Helen Levin-Elias’s mom-and I are capital litigators in the Philadelphia Defender Association and have been for many years. As such, we have represented many, many people charged with murder and facing the death penalty. In the twenty plus years that the Defender has had a homicide unit we-as a unit-have not had a single person sentenced to death (and here I am knocking on wood furiously) and our office has handled, literally, thousands of capital prosecutions. This shows what good, dedicated lawyers, funded adequately, can achieve even when representing hated defendants charged with heinous crimes. But enough about me. Thank you for your well-written, informative piece. Shining a light on the abomination that is capital punishment is always a good thing and is another step toward the eventual abolition of this shameful practice.

  5. It seems that the editorial staff of The Inquirer favors opinions against the death penalty based on other such articles I have seen on its editorial pages.
    The US has a societal composition, culture and other factors which make it unlike Europe. Therefore, I don’t think that comparison should determine laws in this country. Neither do I feel that circumstances of the 17th and 18th centuries apply to the reality of current day life.
    Our relaxed laws and overcrowded prisons allow criminals to repeat crimes to about a (I have read) 70% recidivism rate. Moreover, when heinous crimes are committed by those guilty beyond a doubt, the death penalty should be in place as punishment. Recently, the young woman whose face was slashed and required 100 stitches will not only live in fear the rest of her life, but look at herself every day and be reminded. The victims suffer and the guilty are cared for. That is not justice.

    • The U.S. is relatively diverse compared to European countries, though that doesn’t make the death penalty seem like a better idea. The only European country that still has it is Belarus, a small, homogeneous nation of several million.
      And you have a point that the circumstances of the 17th and 18th centuries were different, but it is worth noting that as the colonists established societies mostly independent of Europe they began by reducing the list of capital crimes in place in the Old World.
      Recidivism is high in the U.S., but I don’t see that is high because we don’t execute more people. Those on death row aren’t being released unless new evidence (such as DNA analysis) proves they are innocent.

  6. My brother died while awaiting execution on Death Row at Trenton State Prison. He had been convicted of the deliberate murder of a plainclothes detective in a drug raid on his apartment. He claimed that he didn’t know that the men who broke into his home were police. My brother’s story was reasonable and the police’s story unreasonable and just as self serving but the jury would never acquit a drug maker who admittedly killed a police officer.
    So should we abandon Capital Punishment in such cases? No, but one thing which should be done is to raise the level of the crimes of perjury, suborning perjury, and evidence tampering by the police or prosecution in a capital case to attempted murder. That might have spared my brother the death penalty if not conviction.
    Even if we ignore any deterrence to a first murder, execution certainly deters any subsequent murders. Executing an innocent person is an unspeakable tragedy but if we’re going to count the heads of innocents saved, the death penalty wins.
    However, you assume without argument that it is “cruel and unusual punishment” and with this I disagree. It is simply society’s feeble attempt to make the punishment fit the crime. It is actually not enough to balance the hurt and injustice of a capital murder.

    • You make the point that execution deters subsequent murders (at least by the people who are executed), but those people would be sitting in prison for life or a long piece of it in any case, so I’m not sure that “heads of innocents [are] saved.”
      Your suggestion that attempting to frame a person for a capital crime qualify as attempted murder makes sense. One of the capital crimes in the Mass Body of Liberties was – If any man rise up by false witness, wittingly and of purpose to take away any man’s life, he shall be put to death.
      Still, in the end, I don’t see that capital punishment serves a useful purpose, even if it could be justified philosophically.

      • My support for capital punishment in general was based on a sense of justice which cannot hold up with the current rate of miscarriages of justice which the Innocence Project has uncovered, just with DNA evidence. So I now only support executions for those whose guilt is proven by a standard far beyond reasonable doubt. I thought my brother’s case was unique, but what the IP has shown is that police, prosecutors, and juries too often have little problem convicting suspects using a standard far below reasonable doubt. Watching real trials on TV convinces me that juries are more concerned that a killer might be set free than an innocent person convicted. You got me thinking and even changing my position on capital punishment.

  7. I’ve been active in the case of Mumia Abu Jamal…for decades…sadly. One quote rises to the top of my list. It’s from George Bernard Shaw. “It is the deed that teaches, not the name we give it. Murder and capital punishment are not opposites that cancel one another, but similars that breed their own kind.”

    I think the US retains the death penalty to keep the population inured to the idea of killing. If a critical mass of the public was horrified and outraged at killing, well…that would not work for the military. Since the USA has become the Armed Enforcer of global corporatization, it has to keep killing acceptable. Of course, this tolerance for killing also serves corporate interests that create so much sickness and death via so many deadly products.

    I think there are many damaged people out there who believe that if the government…the top role models in the land…can use killing to “solve” its problems, well, so can they. Glorification of deadly force in movies etc might reinforce that monkey-see, monkey-do syndrome….especially if the person is border-line already.

    What the US does is to use the horrific nature of the crime to increase the penalty up to death. The fact that the person is proven insane by the horrible crime, and that the person is therefore innocent by reason of insanity, is not effectively considered. Sane people do not commit mass murder etc…despite tricks relating to “legally insane”. Those murderers, and I even include the likes of GW Bush, Kissinger, Rumsfeld and the rest, must be treated in comfort, studied by psychologists, and kept confined until experts deem them no longer a threat to others or themselves.

    PS: I include one of my published political cartoons.

    • Interestingly, Mumia’s son graduated from Friends’ Central in the mid-1990s. The Shaw quote is an excellent one. I will remember it. And thanks for the cartoon.

  8. Just one reason why I am in favor of the death penalty:
    Article in Phila. Inquirer within the last year- (condensed)
    “Arkansas prison guard stabbed to death.”
    A convicted murderer stabbed a female guard to death at an Ark. prison.
    Barbara Ester, 47, a 12 year veteran was stabbed in the side, chest, and abdomen.
    The inmate, Latavious Johnson, was moved to the state’s maximum
    security unit.
    Who is to say he will not kill another guard there? I have always looked at the death penalty as a form of self-defense by society against those who commit horrendous crimes. Self-defense is always justified.

    • I don’t control the data, but my guess is that killings by prisoners on death row are extremely rare. They typically have less contact with other prisoners and guards than those in the general population.

  9. Zero-tolerance maintains order – Philadelphia Inquirer letters – October 20, 2013
    Grant Calder’s plea to the 32 remaining states with capital punishment on the books to see the folly and primitivism of execution is another insular, ivory-tower plea (“The execution standard,” Oct. 9). The death penalty exists not as a deterrent or as a societal expression of vengeance, but as a bold line of law pertaining to social order. It very clearly states there are crimes so heinous, so reprehensible and devoid of human conscience that we, as a society, will not tolerate them or their perpetrators. The death penalty does not exist to persecute politics, control dissidence, or consolidate power as it did in many European nations Calder mentions as having updated their laws to respect the sanctity of human life. It has always been about the order of law, our compassion for victims, and a reassurance to the population at large that the rule of law protects the public good. We all wish to live in a world where evil has been eradicated. If we ever do, our laws can reflect that more civilized and gentle society.

    A protester rings a symbolic bell prior to an execution last week in Florida. (below)

    • The class followed your argument that the death penalty is not “a deterrent or societal expression of vengeance,” but we were less clear about the “bold line of law pertaining to social order.” The evidence doesn’t seem compelling that the social order has been more effectively maintained by having the death penalty, particularly because it’s been used and abused in such varying ways throughout our history.
      We discussed your idea that there are crimes “so heinous, so reprehensible…” that “we will not tolerate them…” The problem for us is that the standard keeps changing, sometimes narrowing, sometimes broadening.
      We also don’t see that we are so different from the European countries. The widespread use in the South of capital punishment for rape, just to take one historical example, was all about “controlling dissidence and consolidating power.” And the current federal statues making certain types of high level drug trafficking punishable by death were pure political posturing when they were passed, just another futile attempt to “get tough” in the “war on drugs.”

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