In a just society, the creation and enforcement of laws is of paramount importance. Without the implementation of laws, specifically those which protect individual property and rights, no society may provide peace and stability for its citizens. To what extent, though, do punishments of individuals who break those laws increase the productivity of the criminal justice system and of the society as a whole? The death penalty, in particular, has been used as a form of justice in civilized societies for several millennia. In its most basic form and through its most simple application, the death penalty reimburses a loss of life.
The ancient Babylonians’ Code of Hammurabi most accurately sums up the logic behind the death penalty: “An eye for an eye.” To sentence a murderer to death reimburses the family, friends, and loved ones of the murdered victim, and delivers a clear, concise act of justice. When the unintended consequences of the death penalty, however, cost taxpayers millions of dollars, fail to deter future criminals from committing crimes, heavily delay justice proceedings, and fundamentally violate the Eighth Amendment to the United States Constitution, the logical argument upon which the death penalty is predicated no longer maintains its validity.
Although the death penalty fails in a variety of different ways, perhaps its most significant shortcoming pertains to economic consequences. The death penalty, like all other criminal justice proceedings, is paid for by state taxpayers. When analyzing the effectiveness of capital punishment, then, one must consider the commonwealth of state citizens. For states with the death penalty the costs of sentencing is high; the state of Maryland, prior removing the death penalty in 2014, is a prime example of the incredible financial burden on state tax payers. In a 2008 study conducted by the Urban Institute (a non-profit think tank centered in Washington, D.C.), research compiled a variety of astounding economic statistics regarding the cost of death penalty cases in the state of Maryland. According to the study, the “average capital eligible case in which prosecutors did not seek the death penalty will cost taxpayers more than $1.1 million, including $870,000 in prison costs and $250,000 in costs of adjudication.” In contrast, “an average capital-eligible case resulting in a death sentence will cost approximately $3 million, $1.9 million more than a case where the death penalty was not sought. In these cases, prison costs total about $1.3 million while the remaining $1.7 million are associated with adjudication.” In this 2008 study, the substantial economic burden placed on Maryland state taxpayers as a result of death penalty proceedings is quite clear.
Additionally, according to Forbes analyst Kelly Phillips, “defending a death penalty case costs about four times as much as defending a case where the death penalty is not considered.” In addition to the costs of the adjudication process, Phillips also reiterates the findings of the Urban Institute study, noting that “in Kansas, housing prisoners on death row costs more than twice as much per year ($49,280) as for prisoners in the general population ($24,690).” The data that show the economic consequences of death penalty proceedings are clear and consistent. From an economic standpoint, the death penalty inflicts harm on taxpayers and unnecessarily increases the price of legal proceedings by significant measures. In matters of life and death, though, economic effects are not the only factors that require analysis.
One of the key arguments in defense of the death penalty pertains to the deterrence of crime. Logically, the threat of death as punishment for a crime should deter future criminals from committing such crimes. The data, however, do not support this supposition. According to John J. Donohue and Justin Wolfers (2006), authors of “The Death Penalty: No Evidence for Deterrence,” “the data are simply too noisy, and the conclusions from any study are too fragile. On balance, the evidence suggests that the death penalty may increase the murder rate although it remains possible that the death penalty may decrease it.” The authors conclude their work by asking whether it is “wise to spend millions on a process with no demonstrated value that creates at least some risk of executing innocents when other proven crime-fighting measures exist?” The fact that no substantial study or evidence highlights the effectiveness of the death penalty with regard to crime deterrence is striking.
In addition to the findings in Donohue and Wolfers’ research, other data measures support the claim that death penalty laws may, in fact, increase murder rates. Historically, murder rates in states with no death penalty have been consistently lower than in states with the death penalty, according to a 2015 study by the Death Penalty Research Center. In fact, from 2009-2013 and again in 2015, the murder rate in states without a death penalty have been at least one percent lower than in states that maintain the death penalty. Furthermore, the American South, where over 80 percent of executions take place, maintains the highest murder rates out of any region in the United States, according to the Center. All available data concerning the implementation of the death penalty and its effect on murder rates are either inconclusive or suggest that the death penalty might increase murder rates. Not only is the death penalty economically damaging, but it also provides no significant deterrence against violent crime.
The Constitution serves as the predominant source of law within the United States. It aims to protect the rights of citizens within the United States, and highlights the many protections that are afforded to United States citizens. Although the Constitution has been amended a total of 27 times, its Eighth Amendment deals particularly with the treatment of criminals in the American justice system. The amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Because the Constitution does not explicitly identify the extent to which a punishment is “cruel and unusual,” the Supreme Court of the United States is tasked with identifying the punishments that might violate the Eighth Amendment. According to Dr. Jack Fruchtman, in his work The Supreme Court: Rulings on American Government and Society, there is a clear difference between the Constitution and constitutional law, and the identification of punishments that violate the Eighth Amendment serves as an example of the latter.
In February 1992, the Supreme Court of the United States delivered a major ruling on a case concerning cruel and unusual punishment. In Hudson v. McMillian (1992), Keith Hudson claimed that he had been viciously beaten by two Louisiana prison guards. He argued that the guards’ abuse violated his Eighth Amendment rights, but the U.S. Court of Appeals for the Fifth Circuit ruled that evidence of a “significant injury” is necessary in order to prove that Eighth Amendment rights have been violated. When the case reached the Supreme Court, the Court ruled 6-3 that no evidence of “significant injury” was necessary, and that the consideration of “malicious and sadistic” punishments are reason enough to assume that Eighth Amendment rights have been violated. In this case, the Supreme Court determined that not even evidence of bodily injury is necessary to demonstrate a violation of Eighth Amendment rights. If the “malicious and sadistic” actions of two prison guards is enough to constitute an Eighth Amendment violation, how, then, is executing a human being (surely a malicious practice) not a violation of the Eighth Amendment?
While the Hudson v. McMillian case demonstrates the Court’s willingness to aggressively protect the Eighth Amendment rights of an individual, several cases since have protected the death penalty on arbitrary grounds. In 1993, at the age of 17, Christopher Simmons was sentenced to death for binding, kidnapping, and throwing his neighbor into a nearby river. Following an appeals process that lasted nearly a decade (support for the aforementioned economic critique), the Missouri Supreme Court stayed Christopher Simmons’ execution. Following the Atkins v. Virginia case in which the Supreme Court established an “evolving standards” precedent, the Missouri court decided that executing minors was, in fact, unconstitutional. When Missouri appealed Simmons’ case to the Supreme Court, in a 5-4 decision, the Court ruled that executing minors is unconstitutional because it violates the prohibition of “cruel and unusual punishment” in the Eighth Amendment.
The decision in this case is certainly the right one. The United States should absolutely not sentence people to death who have not yet reached the age to vote or buy a cigarette. That said, the grounds on which this decision was made are weak. The Court’s decision held that citizens under the age of 18 should not be subjected to possible death penalty punishments. What is there about the age of 18, however, that determines whether or not an individual should be executed? At the age of 17 and 364 days, is a citizen’s mental bandwidth truly inferior to that of an 18-year-old? To exempt an individual from the death penalty solely because he is not 18 years old is to predicate law on arbitrary grounds. It is impossible to accurately establish an appropriate age for executing a citizen, and the Court must not be held responsible for establishing such measures.
One final Supreme Court case that highlights the difficulties of establishing appropriate death penalty conditions is the Kennedy v. Louisiana case of 2008. Patrick Kennedy was found guilty of violently raping his eight-year-old stepdaughter and was sentenced to death. After the Louisiana Supreme Court found that the death penalty was appropriate in cases where the rape victim was a child, Kennedy appealed to the United States Supreme Court. In a 5-4 decision, the United States Supreme Court determined that it is unconstitutional to sentence a person to death for rape, even when the victim is a child. This decision reaffirmed that in cases dealing with rape, regardless of the victim’s age, it is cruel and unusual to sentence the criminal to death.
The Supreme Court’s decision in the Kennedy case was the right one. It is dangerous to establish a precedent that all criminals in child rape cases should be put to death. That said, the Court’s decision does raise a series of ethical questions. First, even though the child was not killed, were Kennedy’s actions not horribly sadistic? Even if Kennedy was not aiming to kill the child, his reckless actions and blatant disregard for the child’s well-being were in full display. Second, would the result be different if the child had died? The answer to this question, certainly, is “yes.” Because the child survived, Kennedy was exempt from the death penalty. If the child had died, however, Kennedy would have become eligible for the death penalty, according to state and federal standards. Judgments that are fully predicated on the life or death outcome of a crime fail to account for reckless behaviors that take place while the crime is being committed. When valuing the life of another individual, justices must account for the reckless actions that take place while the crime is being committed. The difficulties of establishing the behavior deserving of the death penalty are great. The inability of a judge to establish accurate, consistent death penalty conditions further proves capital punishment’s lack of validity in aggregate.
Capital punishment debates consider a host of ethical, legal, and moral considerations. Nonetheless, the horror of murder, rape, and other major crimes should not go unrecognized. For the families, friends, and loved ones of victims, the logic behind the death penalty argument is sound. The human response to tragedy is rooted in emotion, and it is not difficult to recognize how capital punishment can assuage a considerable amount of pain following a heinous crime. Although the emotional and moral justification for capital punishment is potentially well-founded, the economic, statistical, and constitutional realities which highlight its flaws are ultimately of greater importance.
The data clearly show that the economic realities of capital punishment are harsh. Capital punishment cases cost taxpayers over $2 million more than non-capital punishment cases, and the delays caused within the legal process are evident. Furthermore, no statistical evidence suggests that capital punishment effectively deters crime. In fact, the inverse is true, as states with increased rates of capital punishment report higher murder rates than those states without the death penalty. Economic and statistical arguments aside, the Supreme Court has also failed to clearly establish the grounds on which capital punishment is protected. In the Hudson case, the Court quite liberally ruled that no evidence of physical injury was necessary to prove Eighth Amendment violations.
If “sadistic and malicious” actions are reason enough to deem a violation of Eighth Amendment rights (as established in Hudson), are the costly and ineffective executions of human beings not cruel and unusual? The economic, statistical, and constitutional analysis of capital punishment maintains that the death penalty is, in aggregate, an ineffective practice. Lacking economic, statistical, and constitutional justifications, the death penalty only accommodates the struggling moral conscience of victims. While the overall well-being of victims is an important consideration, it is not significant enough to perpetuate the existence of a costly, ineffective, and unconstitutional practice.
Connor McNairn
Political Science